Vol. 29 No. 6 (July 2019) pp. 69-71HUMAN RIGHTS, CONSTITUTIONAL LAW AND BELONGING: THE RIGHT TO EQUAL BELONGING IN A DEMOCRATIC SOCIETY, by Elena Drymiotou. New York: Routledge, 2018. 233pp. Hardcover $112.00. ISBN: 978-1138298903. eBook $44.96. ISBN: 978-1315098319.
Reviewed by Maureen Stobb, Department of Political Science and International Studies, Georgia Southern University. Email: mstobb@georgiasouthern.edu.
Equality is a hot-button topic. Politicians, political activists, talk-show hosts and celebrities alike proclaim its importance, while legal scholars heatedly debate its meaning. Elena Drymiotou’s new book, HUMAN RIGHTS, CONSTITUTIONAL LAW AND BELONGING: THE RIGHT TO EQUAL BELONGING IN A DEMOCRATIC SOCIETY is intended for the latter audience. For those struggling to interpret the many provisions of constitutions and multinational treaties guaranteeing the equal protection of the law, this work offers helpful insights. However, the author falls short of fully engaging with those who disagree with her viewpoint. She also does not adequately explore the case law that will challenge her to explain how one applies the approach to real world, complex problems. Despite these shortcomings, however, the book offers a valuable starting point for discussion of the meaning of “equal treatment,” particularly in cases in which individuals are not as “similarly situated” as we would like to believe.
Drymiotou examines the jurisprudence of the right to equal protection of the law in North America, proposing what she argues is a more just model for interpreting this legal concept. Her ultimate goal is to develop an approach that adequately addresses social deficiencies in these majoritarian societies, which she views as generally oppressive for vulnerable members. The theory, the right to equal belonging in a democratic society, is her answer to this problem.
She devotes a great deal of effort to defining each of the terms in the phrase “equal belonging in a democratic society.” Belonging is the way one stands in relation to other members of a group. Equal belonging is integration into the group, or substantive ties among people in the society who view each other as valuable and of equal worth. There is no dominance among members. When the society is democratic, it is a participatory community of equals – a concept, the author notes, which stems from Aristotle’s idea of a polis. This community is both physical and spiritual, composed of individuals with a shared identity who seek the well-being of all members. Drymiotou measures participation, or the power to influence substantive outcomes, in terms of the proximity of the person claiming the right to the decision making center. Low political accessibility to decision makers would equate to reduced participation.
Drymiotou argues that three rights are inherent in the right to equal belonging. First, members have the right to secure belonging, which entails the absence of systemic political disadvantage, prejudice, stereotype, dominance and the worsening of pre-existing political disadvantage. Second, individuals possess the right to free-identity belonging, or the equal freedom to choose the way you belong or define your relationships. Third, members have the right to minimum comfortable belonging, which is simply freedom from anxiety that is created by the violation — or threat of violation — of the first two rights. The core or minimum content of each of these three rights is the right to self-rule and self-development, in the sense of non-dominance.
The author is thorough in defining the above concepts, although the reader may at times find the first five chapters repetitive. Chapter six presents the grounds of unequal belonging, such as race and gender distinctions that most readers will be familiar with. Drymiotou argues that legislation should not automatically be suspect because it makes distinctions based on any one [*70] ground; rather, these grounds should be employed as contextual factors that may indicate unequal belonging. The point is well-made, but this argument should have been presented earlier in the book because it explains the problem the author wishes to address. Before reaching this section, the reader is left to wonder what specific injustices the author is referring to in the first pages, and how current interpretations of equal protection perpetuate these injustices. It is therefore not clear why this theory is needed until chapter six. In fact, the bulk of the authorities she discusses before this crucial point seem to agree with her. Finally, nearing the end of the book, we see that Drymiotou does not want to disregard these distinctions in the legal analysis, but rather shift the focus to what these grounds share. They fall into a conceptual legal category of factors that alert the judge or policy maker to experiences of vulnerability and disadvantage. The author buries this insightful critique of an established methodology in the last few chapters of the book.
As a result, Drymiotou spends too little time on the work of those who disagree with her point of view. She lists deficiencies of the singular, fixed, abstract grounds approach in chapter six, but gives insufficient attention to its merits. If this method for identifying violations of the equal protection of the laws is as flawed as Drymiotou suggests, then why have so many judges employed it? The literature explaining this approach and its value is vast, and justices have articulated it in majority opinions and in dissents. Former Chief Justice William Rehnquist, for example, expressed concern that this trend would expand the U.S. Supreme Court’s power too far and alarm at the extension of heightened scrutiny to more classifications. In his dissent in SUGARMAN V. DOUGALL he wrote, “unless the Court can precisely define and constitutionally justify both the terms and analysis it uses, these decisions today stand for the proposition that the Court can choose a ‘minority’ it ‘feels’ deserves ‘solicitude’ and thereafter prohibit the States from classifying that ‘minority’ different from the ‘majority’” (p. 657). In short, the fixed grounds approach provides clear boundaries. A more subjective interpretation of the equal protection clause could increase abuses of judicial power.
In addition, although she accepts that courts have found violations based on distinctions analogous to enumerated grounds, she does not explore the myriad of cases in which judges make such analogies. She does cite one useful example, Justice Marshall’s separate opinion (dissenting in part) in CLEBURNE V. CLEBURNE LIVING CENTER, INC. In the opinion Marshall likened the situation of intellectually disabled persons to that of blacks and women, because these individuals have all faced disadvantages linked to their experiences as members of these groups. However, there are many other interesting cases in which the Court expounded on the goals of the Equal Protection Clause, and how that purpose should influence interpretation in unique situations.
An example of such a case is PLYLER V. DOE, in which the U.S. Supreme Court applied the Equal Protection Clause to a Texas law which withheld state funds from school districts for the education of children who were not lawfully admitted into the United States and authorized districts to deny enrollment to these children. The majority explained the political powerlessness of undocumented resident aliens, characterizing them as a “shadow population” and potentially “a permanent caste … encouraged to remain here as a source of cheap labor, but nevertheless denied the benefits that our society makes available to citizens and lawful residents” (pp. 218-219). The Court was troubled by the denial of the particular benefit at issue in the case, public education. It cited a central goal of the Equal Protection Clause, “the abolition of governmental barriers presenting unreasonable obstacles to advancement on the basis of individual merit,” and found the Texas policy to be an affront to the purpose of the clause (p. 221-222). Although the Court did not afford suspect classification to undocumented children, it fashioned a unique approach based on contextual factors. The Court’s holding in this case has been criticized for creating a custom-tailored approach. Drymiotou could have examined cases like this, which modify an established method of interpretation, to both [*71] explain the approach she rejects and to explore how her method would work differently in specific cases.
Aside from these methodological limitations, Drymiotou makes important contributions to the literature. Her explanation of the right to free-identity belonging is particularly valuable and it provides a useful theoretical basis for consistently evaluating cases involving affirmative action policies and laws promoting minority group integration. As the author notes, proponents of the alternative fixed-grounds approach fail to explain why cases such as FISHER V. TEXAS, in which an affirmative action policy sought to promote inclusion, should be treated in the same manner as a case such as KOREMATSU V. UNITED STATES, in which the policy sought to exclude a minority group, simply because they both involve distinctions based on race. Examining such cases for violations of the right to free-identity belonging, courts can assess whether policies aimed at inclusion actually promote the immersion and integration of minority individuals. Courts would also ask if integration would occur at the cost of minority groups’ cultural identities. The author contends that the protection of some minority groups’ identities may require exceptions from generally applicable laws that do not take into account differences, thereby disadvantaging some groups. Her criteria for the legal assessment of respect for this right provides a list of questions judges and policy makers can ask themselves when examining a claim of a violation. The inquiries focus on determining whether the claim of the identity group expresses the personal uniqueness and real interests of the beneficiaries, and the extent to which this claim will ameliorate any damage and protect beneficiaries from oppression by members of their own group. This is a feasible approach to addressing a crucial need in increasingly multicultural societies.
In sum, Drymiotou presents a thought provoking analysis of the right to equal protection of the law and her model for interpreting this concept addresses flaws in established approaches. With this book, she has taken an important step toward developing legal doctrine that can be used to protect vulnerable members of democratic societies.
CASES:
CLEBURNE V. CLEBURNE LIVING CENTER, INC., 473 U.S. 432 (1985) (Marshall, T. dissenting in part).
FISHER V. UNIVERSITY OF TEXAS, 133 S. Ct. 2411 (2013).
KOREMATSU V. UNITED STATES, 323 U.S. 214 (1944).
PLYLER V. DOE, 457 U.S. 202 (1982).
SUGARMAN V. DOUGALL, 413 U.S. 634 (1973) (Rehnquist, J., dissenting).
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© Copyright 2019 by author, Maureen Stobb.
