Monday, October 28, 2019

Practical Equality and Rotten Compromises

Mark Graber

Robert Tsai’s Practical Equality: Forging Justice in a Divided Nation offers practical advice for progressives living in temporary hard times.  Progressives when they cannot achieve a full loaf should eschew compromises that lock-in inequalitarian commitments and find strategies that move the law forward while leaving open the possibility of further progress.  Brown v. Mississippi (1936) is an excellent illustration of that strategy.  The Supreme Court in that case took a stick away from segregationists by ruling out certain brutal modes of seeking confessions, almost exclusively used when African-Americans were suspected of crime.  The justices did not, however, lend any legal sanction to other practices that promoted racial subordination in the mid-twentieth century polity.  Craig v. Boren (1976) might serve as an example of the strategy Tsai would have progressives avoid wherever possible.  The Supreme Court in that case raised the standard for gender discriminations from rational scrutiny to immediate scrutiny.  In doing so, however, the justices set a precedent against raising the standard for gender discriminations to strict scrutiny.

Practical Equality provides sound advice for progressives who are experiencing temporary setbacks on the road to Damascus.  Professor Tsai has a rich grasp of constitutional law, constitutional theory, constitutional politics and constitutional history, all of which are employed in his effort to move American politics progressively forward during times in which progressives need allies to achieve even modest degrees of progress.  He points out how in the past and at present moving to various consensus norms can be means of achieving greater political equality.  Progressives can substitute procedure for substance.  They can require that African-Americans be treated fairly in the criminal justice system even when they cannot destroy the vestiges of Jim Crow.  Progressives can substitute a safer equality for a greater equality.  They can seek to wipe out racial discrimination in the capital punishment charging process even when they cannot wipe out racial discrimination in the capital punishment sentencing process.  They can insist progressive reformers speak freely even when too many in the audience are unwilling to listen to their blandishments.

Professor Tsai’s advice works best during temporary hard times for progressives.  Progressives do not want to lock-in inegalitarian practices during these periods because they expect in the near future to make greater progress.  This greater progress is in part a result of expected greater increases in public support for egalitarian practices.  The more persons over time who support same-sex marriage, the less the backlash to laws and judicial decisions legalizing same-sex marriage.  This greater progress is also in part a result of expected greater precedential support for more egalitarian decisions.  Brown v Mississippi can be used to provide precedential support for striking down other brutal practices in the criminal justice system directed primarily at persons of color.

Practical egalitarian solutions may nevertheless privilege political lock-ins by sanitizing inegalitarian practices even as they avoid legal lock-ins by keeping broader legal questions open.  Consider the constitutional politics of Brown v Mississippi  rather than only the constitutional law.  Students of southern politics have documented how constitutional politics in the former Confederacy was often a struggle between elites who favored a kinder, gentler racism that would not alienate northerners thinking of doing business or perhaps moving to Dixie and a more populist racism embodied by lynch law.  Prominent southern elites may have opposed national lynch laws, but the decline of lynching in the twentieth century was partly due to the efforts of those favoring a kinder, gentler racism.  Indeed, Professor Tsai points out that Brown drew a dissent in the Mississippi state courts from a jurist who was no doubt a kinder, gentler racist.  This constitutional politics highlights how judicial decisions forbidding brutal practices in the criminal justice system that from a legal perspective promoted a more egalitarian order may also from a political perspective have strengthen Jim Crow by eliminated the worse abuses of a horribly abusive practice in ways that privileged more elite commitments to white supremacy.  Racism without extra-legal violence has more supporters than racism enforced by mobs.  Michael Klarman details how the death of segregation was hastened considerably by the backlash to Brown v. Board of Education that substantially weakened the power and authority of kinder, gentler racists.  Southerners willing to live with Brown v. Mississippi had to be ousted from authority for northerners to insist on Brown v. Board of Education.

Practical equality solutions risk picking the low-hanging fruit in ways that may make other harvests politically more difficult.  Consider capital punishment.  Most progressives are opposed to capital punishment on principle. Many non-progressives are queasy about capital punishment because they worry about executing innocent persons, think some classes of persons (teenagers, the mentally ill) ought not be executed, or believe that capital punishment is imposed in ways that discriminate against persons of color.  If given a choice between capital punishment as practiced in the United States and no capital punishment, the queasy moderates might choose no capital punishment.  If, however, a series of laws and judicial decisions sanitize capital punishment so that the chance of executing innocents is minimized, the execution of sympathetic individuals is forbidden and procedures are devised to reduce racism, the result might be increased support for capital punishment.  Sometimes the effort you spend running a marathon makes the last miles easier; sometimes that effort makes the last miles more difficult.  The same may be true for progressive reform.  In theory, the next progressive steps are left open.  In practice, moving part way to the goal may make further movement more difficult.  Ask proponents of the ERA what happened when the most offensive gender discriminations were removed from statutory books.

Rotten compromises may seem attractive during times when locking in minimal commitments to equality seems more important than avoiding locking in inegalitarian commitments. Reconsider Plessy v. Ferguson from the perspective of the turn of the twentieth century.  Professor Tsai and every other contemporary scholar condemn that decision for locking in the principle that racial segregation was constitutional.  Plessy, however, also locked in or at least provided foundations for the principle that segregation had to be equal.  As Democratic speeches during the debates over the Civil Rights Act of 1871 and 1875 made clear, whether segregation had to be equal was not clear under the Fourteenth Amendment.  White supremacists in Congress insisted that Congress had no power to regulate such domestic matters as education and transportation, that states might bar children of color from school altogether.  No one will pretend that segregation was equal in any way.  Nevertheless, a fair claim can be made that for fifty years, persons of color in the Jim Crow South got a little more and only a little more than they might have gotten because at the very least everyone had to pay lip-service to the principle that segregation was equal and starkly inegalitarian forms of inequality could be legally challenged, sometimes successfully.

Practical Equality provides progressives with an extraordinary menu of possibilities for making progressive gains without making progressive sacrifices, but not with the means of making the really rotten compromises that national divisions may compel.  Compromise may be the attractive alternative when more benefits can be locked in by locking in perceived evils than by practical equality solutions.  Segregated education may be better than no education. When the wind is blowing away from progressive notions of equality, locking in some progressive policies in practice may be a better alternative than keeping progressive utopias open in theory.  Most controversially, to the extent constitutions are compromises with evil rather than blueprints for the good society, forging justice in a divided nation may require the really rotten bargains that enable people with very different conceptions of equality and the good society to share the same civic space.

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