Balkinization: The People Who Don't Fit In

The People Who Don't Fit In

Guest Blogger

For the symposium on Robert Tsai, Practical Equality: Forging Justice in a Divided Nation (Norton 2019).

Susan Burgess

Robert Tsai begins by dedicating his new book to “the misfits and the losers.” This put me in the mind of a quotation from Margaret Atwood that is framed on my office desk: “Every utopia faces the same problem: what do you do with the people who don’t fit in?” Atwood has written several novels about utopias that have gone badly wrong, most famously in The Handmaid’s Tale, which has been made into a feature-length film twice, as well as a very popular television series that is currently in its third season on Hulu. As I was writing my review of Tsai’s book, I was also finishing Margaret Atwood’s new novel, The Testaments, which is both a prequel and a sequel to The Handmaid’s Tale. In an odd sort of way, these two works go together go together quite nicely.

Practical Equality: Forging Justice in a Divided Nation directly addresses the people who don’t fit in, while avoiding what Tsai calls “tragic precedents” like Plessy and the kind of dystopic spirals about which Atwood writes so vividly. To this end, he takes the concept of aspirational justice seriously, reinterpreting several iconic constitutional cases through the lens of “practical equality,” bringing together friends of liberal democracy and the rule of law across the political spectrum in the United States. The book begins by discussing how the Trump administration’s Muslim ban was substantially pared down. It ends with a sobering yet hopeful prediction that incremental liberalism will best rising nationalism and white supremacy, as it has during much of the country’s history. In between, Tsai applies an interesting form of pragmatic justice to a wide range of iconic cases including Plessy, McClesky, Cleburne, Korematsu, VMI, Terminiello and many others.

Instead of deploying equality to address persistent discrimination, Tsai counsels utilizing less controversial constitutional principles such as fairness, reason, anti-cruelty, and free speech. Although Tsai concedes that his approach often results in slower, more modest progress, he argues that it is much more likely to build consensus across political lines, “bridging disagreements over what equality requires” (105). In this manner, justice can be furthered, even as disagreements persist, producing more stable and less inflammatory results. “For the practical egalitarian,” Tsai explains, “the goal is always to try to minimize any inequalities and ameliorate immediate harms while political debate over fundamental questions continues (131). This jurisprudence promises to foster civic life by avoiding paralyzing backlash and stigma occasioned by too rapid degeneration of cherished traditions and institutions.

Tsai concedes that achieving this balance is often difficult. His discussion of NAACP v. Button exemplifies how practical equality works. How can the Court address the racist motivations alive and well in the South, yet remain a neutral arbiter? Sidestepping a direct discussion of equality and racial discrimination in favor of freedom of expression allows the Court to transform a potential 5-4 ruling against the NAACP into a 6-3 victory for the group, showing that liberty and equality “aren’t perpetually at odds,” but can work together to progress justice. (188).

This is an excellent book that portrays liberal pragmatism at its best. It provides a compelling defense of liberal democracy as we know it. The catch is, this is not the best of times for liberal democracy. Tsai modestly proposes that his approach, “requires only that people agree there is epistemological value in the truth, even if that truth is complicated,” a proposition that is under direct attack in contemporary politics (108). He notes that the United States has made a collective choice to favor robust debate in the hope that the marketplace of ideas will, in the end, prove to be redemptive. In his view, the violence that broke out in Charlottesville was occasioned by the failure of city officials to ensure safety in the public square by separating radicals and maintaining peaceful conditions for protest. He calls for more speech denouncing illiberal ideas and notes that other cities learned from those mistakes, as evidenced by peaceful subsequent demonstrations in Boston and Gainesville. He both concedes that the idea that the United States is not post-racial, as many claimed after the election of Barack Obama, and entertains the idea that “liberalism itself is in its death throes” (228).

But in the end, Tsai is betting on liberalism, arguing that “Pragmatic measures must be undertaken to reduce inequities even when – and especially when – the direct appeal of egalitarianism fails to win the day” (231). Even if nationalists and white supremacists don’t fully succeed in transforming the regime, there is little doubt that the form of liberal democracy must transform to survive, perhaps becoming a multi-racial and gendered form of governance that shapes social media and internet, rather than simply responding to it. Tsai’s accessible and well-argued book will help the friends of liberal democracy keep the faith and continue to move in that direction. But the next steps remain to be seen.

Although some had marginalized Atwood’s work as “merely” speculative or science fiction earlier on, that criticism has largely receded given the current dystopic trajectory of contemporary politics. For her part Atwood has said all along that the events discussed in The Handmaid’s Tale and The Testaments have all happened somewhere in the world at some point in recorded history. Her work is a painful reminder that regimes rise and fall over the time, democratic and authoritarian alike, leaving misfits and losers pulverized in their wake. While the end of the political and legal narrative in which we are currently embroiled remains unclear as yet, for her part Atwood concludes The Testaments with a sobering and yet still somewhat hopeful inscription written on the grave of one misfit who didn’t live to see the end of the totalitarian regime into which she was born: “Love is as strong as death.”

Susan Burgess is Distinguished Professor of Political Science at Ohio University. You can reach her by e-mail at burgess at ohio.edu

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