by Sonu Bedi. New York: Cambridge University Press, 2013. 289pp. Hardback $99.00. ISBN 978-1107018358.Reviewed by Christopher Malone, Associate Professor and Chair, Department of Political Science, Pace University cmalone [at] pace.edu.
pp.249-254
The spring 2014 semester marked the tenth time I have taught a constitutional law course on civil rights at the undergraduate level. No other course affords me the opportunity to uniquely compress law, history, political theory, institutional development, race, class, gender, and sexual orientation all into an intense 15-week meditation on the meaning of American equality. The very word “equality,” as I explain in the first class, opens a Pandora’s Box: once we declare that all men and women are created equal, we are left with the never-ending task of defining and redefining the term.
My favorite moment comes early in the semester when we set out to understand the bedrock of the course: the standards used by the Court to analyze legislative classifications under the Equal Protection Clause. The arduous task begins rather easily with the realization that government classifies individuals into separate groups all the time, restricting those who can drink to 21 or older, or providing Social Security to someone 65 or over, or levying a higher tax rate for high income earners.
The tougher questions revolve around the circumstances under which such legal classifications are legitimate and satisfy the constitutional demands of Equal Protection. As is well known in Equal Protection jurisprudence, the courts have devised a tri-partite framework for scrutinizing such laws. Under a rational basis review, a government classification is acceptable so long as it is rationally related to a legitimate government interest; under heightened or intermediate scrutiny, the courts overturn a government classification unless it is substantially related to an important government interest; and finally under strict scrutiny, reserved for a few “suspect groups,” the law will pass constitutional muster only if it is narrowly tailored to achieve a compelling state interest. What are the real-world differences, one student inevitably asks, between a “legitimate,” “important,” and “compelling” government interest? Another one usually chimes in by asking the “scrutiny is in the eye of the beholder” question: aren’t these differentiations rather subjective, devoid of actual content, prone to different interpretations by judges over time? Why does this or that group fall into this tier and not that one? On occasion, the most astute and perceptive student will simply conclude, “This is all very convoluted and confusing – isn’t there a much simpler way for adjudicating questions of Equal Protection?”
It would appear Sonu Bedi has had similar conversations inside and outside of his classes,for, these and other normative matters are at the heart of his [*250] stimulating and ambitious, if at times repetitive, BEYOND RACE, SEX AND SEXUAL ORIENTATION: LEGAL EQUALITY WITHOUT IDENTITY. Bedi asks the deceptively simple foundational question: isn’t there a more parsimonious and effective way to erect a constitutional edifice around Equal Protection? His answer of course is yes, and it entails a wholesale reconceptualization of how the Court approaches questions of equality under the law. Bedu drills down specifically on the tiers of scrutiny regime constructed around the recognition of certain groups as “suspect” and others not. Bedi’s stated goal is to challenge and ultimately replace “this identity or class approach” to Equal Protection jurisprudence with a more rational, less clunky alternative (p.2).
By drawing on normative political and legal theory, Bedi identifies at least four problems with the suspect-class framework. First, the identity approach the Court has adopted undermines a “robust” notion of individualism American law is already founded on. Second, an identity-centered framework exacerbates the counter-majoritarian nature of courts by pushing them in certain circumstances to thwart the will of the majority – which then potentially causes a backlash against the very groups the laws were meant to protect. Third, Bedi argues that the Court’s use of the most searching judicial inquiry – strict scrutiny – actually reaffirms racist beliefs it seeks to counter by implying that those beliefs are based on something more than mere irrational racial animus or hostility. Finally, Bedi contends that the tier-of-scrutiny framework is too subjective, inviting judges to infuse their decisions with ideology. For example, over the last 70 years the Court has determined what constitutes a “compelling” government interest in very different ways. In KOREMATSU V. UNITED STATES (1944), the Court argued that racial minorities constituted a “suspect class” but upheld Japanese internment based on the idea that “national security” constituted a compelling government reason. Sixty years later, the Court upheld affirmative action in GRUTTER V. BOLLINGER (2003) by reaffirming that racial minorities were a suspect class but that “diversity” in higher education also constituted a compelling purpose. What is the threshold for designating something compelling? Is it possible that both national security and diversity constitute an equally compelling government purpose? Will these someday fall out of favor with future courts, making way for other interests to be labeled compelling? Bedi’s point is that an arbitrary classification, based primarily on a justice’s interpretation and the rather fixed identity of the groups the law intends to protect, permits “individual justices to fill in as they see fit” based on their ideology rather than the proper constitutional limits placed on the judiciary (p.4).
Bedi expounds an alternative method for determining equality under the law that eschews the identity-based approach the Court has established. His Equal Protection remedy turns on a “powers review” (p.15) that attaches to the powers and limits of the federal government rather than to the identity of groups and individuals. A powers review elides the problems of the tiers-of-scrutiny approach by single-mindedly doing away with its entire architecture. It eliminates the concept of suspect groups, the need for heightened scrutiny, the [*251] consequences of a semantic tongue-twist over categories such as “legitimate,” “important,” and “compelling” government interests – in short, all of the heavy lifting of equality work the Court has devised in the last 150 years. Bedi replaces all of this with an elegantly simple (and perhaps simplistic) idea: the notion that “we ought to understand the Equal Protection Clause as a ban on the state’s power to act on certain kinds of reasons” (p.16). As he explains in the Introduction:
I argue that the Equal Protection Clause is best understood, then, as a limit on the kinds of reasons government may invoke. This is what it means to treat individuals equally. This reframing may appear as a mere rhetorical modification in the way the Court invalidates laws and policies. This is undoubtedly true. But I argue that this change from a discourse of identity to a discourse of powers has important normative and political implications. It avoids the problems that come with invoking identity while providing a more robust check against equality infringing laws and policies (p.20).
Bedi’s powers review approach then rests on the premise that the Equal Protection Clause is first and foremost a constraint on state action – it circumscribes what the state may not do. As long as laws and policies rest on a constitutionally inadmissible rationale, those laws and policies violate Equal Protection. Nothing more nor less is required. Reconstructing Equal Protection jurisprudence from that starting point renders group identification, suspect classes, and a heightened scrutiny regime moot. All well and good: but how does Bedi define an “inadmissible rationale”? For him, the state may not 1) act on justifications that invoke certain conceptions of the good life (what he calls the principle of liberal neutrality), 2) enact laws based on racial animus, sexism, or hostility, or 3) implement laws proffered in what he calls “bad faith” (p.25). All of these principles flow from the concept of public reason developed by liberal political theorists such as John Rawls.
Part I of the book draws out the problems of Equal Protection jurisprudence alluded to above, as well as the normative political and legal theory behind the powers interpretation of the Equal Protection Clause. The rest of the book, the brunt of it, addresses “the rubber hits the road” question: Bedi applies a powers review to those groups that have been or might be deemed “suspect classes” and analyzes a handful of policies that have affected them adversely. Part II identifies laws based on racial animus or hostility that Bedi agues would be overturned under a powers approach. Part III looks at sex and sexual orientation, and argues similarly that laws based on sexism, gendered attributes, or homophobia would be invalidated because all would meet one or more of his criteria for an inadmissible rationale. Most of Parts II and III might be read as a long concurring opinion on many of the Court’s recent decisions as they relate to these “suspect classifications.” A powers review approach, according to Bedi, would do away with the tiers-of-scrutiny reasoning but come to similar conclusions on many of Court’s recent findings: Jim Crow segregation, racial[*252] profiling, and laws prohibiting same-sex marriage would all be rendered unconstitutional. At the same time, a powers review analysis of Equal Protection would not necessarily overturn affirmative action or a woman’s right to a legal abortion. As to the latter, Bedi is adamant that one could get to the same legal place found in ROE V. WADE (1973) and its progeny “by hanging the constitutional objection on the reason underlying abortion legislation rather than the group or class affected” (p.205). In fact, similar things can be said for every just other policy Bedi analyzes.
It would be an understatement to assert that Bedi’s powers review doctrine is an ambitious reconceptualization of Equal Protection jurisprudence. BEYOND RACE, SEX, AND SEXUAL ORIENTATION is thought-provoking, well argued, and timely given the recent Supreme Court decisions on issues like affirmative action and marriage equality. However, like any good work, Bedi’s raises as many questions as it ostensibly answers, opening its own Pandora’s Box as it were. Let me just mention a few in closing.
First, Bedi’s employs a rather odd use of PLESSY V. FERGUSON (1896) in supporting his powers review approach. Bedi contends that Justice Brown’s opinion in PLESSY
Surprisingly poses the correct constitutional standard…That is, PLESSY does not characterize the issue as one about discrimination. It also does not ask whether segregation invokes a suspect classification triggering heightened scrutiny. Informing the justificatory constraints, the opinion rightly contends that every exercise of power must be “reasonable” and proffered in “good faith.” This is the ultra vires doctrine I seek to resuscitate: when the state acts arbitrarily, it goes beyond its powers (pp.145-146).
Bedi goes on to argue that, although Justice Brown posed the right question, his response was incorrect. For Brown and the Court’s majority, separate train cars were a “reasonable” use of the police power of the state in Louisiana. Bedi takes issue with that conclusion, arguing instead that the customs of the times upon which Brown rested his decision were “blatantly racist”: “the problem is not with the standard of reasonableness but its application by the majority in PLESSY” (p.146).
It is questionable whether one can successfully disaggregate the reasoning from the ruling here – that is, the PLESSY majority’s recognition that a standard of reasonableness exists from its own conclusions that separating individuals according to race was actually a “reasonable” remedy. Bedi concludes that Brown’s decision rested on racial animus. No one in their right minds today would come to a different conclusion. To back up that assertion, he cites Justice Harlan’s famous dissent in PLESSY, in which Harlan proclaims that “everyone” knew the purpose of the law was to discriminate against an inferior race (p.147).
Two problems exist here with holding up PLESSY as a model for his ultra vires doctrine. First (similar to any interpretation involved in the levels of scrutiny framework) is the “reasonableness is in the eye of the [*253] beholder” argument. Brown and Harlan both argue for the use of a standard of reasonableness – they just cannot decide on what that is. Whose “reasonableness” do we follow? Is there a “universal” understanding of what constitutes racial animus or hostility? There is an inherent subjectivity built into the concept of public reason; further, it is not at all clear that its use will assist us in settling Equal Protection questions any more decisively than the tiers of scrutiny framework. Case in point: recently the Court upheld Michigan’s constitutional amendment banning the use of affirmative action practices in many public institutions (SCHUETTE V. COALITION TO DEFEND AFFIRMATIVE ACTION, 2014). Proponents of the constitutional amendment would never concede that it was based on racial animus or hostility; opponents would certainly disagree with that. What would a powers review have to say about a case like this involving racial minorities? This is the potential problem we encounter when we attempt to hang “the constitutional objection on the reason” behind the law, as Bedi would have it, rather than another standard (e.g., the impact on a particular group).
Second, and related, it is quite easy to assert today that Justice Brown’s logic rested on racial animus. All this tells us is that our accepted notions of racial animus have evolved and changed since 1896. More generally: public reason changes, and with it I would imagine what constitutes racial animus, homophobia, bad faith, and so on. Would that fact shake free the moorings of a powers review? Bedi does not mention that Justice Brown’s entire opinion in PLESSY rested on a distinction he makes between “social” and “political” equality. What is more, Justice Harlan more or less accepted that same rationale in his dissent when he declared, just before his famous proclamation on the “Colorblind Constitution” that, “the white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth, and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty.” Our current notions of public reason would approve of neither Brown nor Harlan’s views on equality. Can we simply ignore these aspects of the opinions? If we do so, are we simply cherry picking the parts of public reason we like?
A second issue centers on Bedi’s belief that equal protection is violated when laws are erected on certain conceptions of morality or “the good life.” The last chapter of the book makes the case that the logical outcome of a powers review approach would not only overturn prohibitions on same sex marriage, it would lead to the disestablishment of marriage itself. Under a proper reading of the powers review of Equal Protection, the state would have to get out of the marriage business altogether. In legalizing marriage, the state acts on an inadmissible reason by promoting the morally superior “good life” of marriage over non-marriage. Bedi’s logic here is clear, and it is evident he is prepared to allow his powers review take him wherever it leads intellectually. But his intellectual candor opens up more general questions about where one draws the line on deciding which state powers promote the good life and which ones remain true to liberal neutrality. Senior [*254] citizens are not a suspect class under current Equal Protection jurisprudence. But would Bedi’s powers review theory necessarily also lead to the disestablishment Social Security and Medicare, since those government policies are built around notions of morality and “the good life” for Americans in their golden years? What about Medicaid for the poor? The broader question revolves around the full implications of true liberal neutrality if all laws erected on a concept of the “good life” were overturned.
Any good book should bring you into a dialogue with it. BEYOND RACE, SEX, AND SEXUAL ORIENTATION passes that test with flying colors. Bedi has contributed greatly to the debate swirling around the conceptual edifice upon which current Equal Protection jurisprudence rests. While I was not able to assign it in my civil rights class this time, rest assured it will be on the required text list when I teach it for the eleventh time.
CASES CITED
GRUTTER V. BOLLINGER 539 U.S. 306 (2003)
KOREMATSU V. UNITED STATES 323 U.S. 214 (1944)
PLESSY V. FERGUSON 163 U.S. 537 (1896)
ROE V. WADE 410 U.S. 113 (1973)
SCHUETTE V. COALITION TO DEFEND AFFIRMATIVE ACTION 572 U.S. (2014)
Copyright 2014 by the Author, Christopher Malone
