Over the last 75 years, the Supreme Court has interpreted many of the Constitution’s foundational rights through the lens of equality. From cases involving voting rights, rights of speech, reproductive freedom, parental autonomy and intimate association, the Court has employed equality frameworks in its decision-making. The net result, according to Vanderbilt Law Professor Francesca Procaccini, is a transformation of fundamental rights “into comparative protections instead of substantive ones.”
In a new article “Constitutional Rights and the Equality Problem,” Professor Procaccini spotlights equality’s overwhelming influence on rights, how the Court has consistently conflated liberty and equality interests, and the Court’s transformation of several substantive rights into “species of equality rights.” She goes on to describe key shortcomings of this approach and argues that rights need to move beyond a frame of equality that “has served, for decades, to confine them.”
How Equality Governs Constitutional Rights
Equality, Professor Procaccini argues “has been the gravitational center of modern constitutional rights law for nearly a century.” A post-Reconstruction Supreme Court eschewed the principle in cases such as Plessy v. Ferguson, but in the wake of Lochner v. New York, it assumed a greater role in rights-related decisions.
Professor Procaccini also argues that when the Court has directly recognized fundamental liberty rights under the Due Process Clauses of the Fifth and Fourteenth Amendments, “it has conceived of and framed those liberty rights through the lens of equality.” The limits of those rights – liberty to contract, freedom of intimate association (marriage, family composition, and sexual liberty), reproductive freedom, parental autonomy, and Due Process – have been shaped through equality frameworks.
Similar limitations, she contends, can be found in cases involving freedoms of speech, criminal procedure rights, protections against inhumane treatment, and voting rights protections.
“Inserting hefty measures of equality into the mix has served to steadily expand rights, but also to contort and limit them,” she writes.
How Does Equality Undermine Rights and Democracy?
The article identifies three significant problems with equality’s domination of constitutional rights.
Equality curbs the development of substantive constitutional rights. Professor Procaccini argues that five features of equality’s logic make it “a more conservative, as opposed to generative, framework for protecting rights:”
- It ties rights to current legal and political conditions instead of to new or aspirational conditions
- By reinforcing current conditions, it entrenches current hierarchies. For example, “women, LGBTQ individuals, and African Americans did not benefit from constitutional equality arguments so long as majority consensus was that women belonged in the home, LGBTQ individuals in the closet, and African Americans in segregated spaces,” she notes.
- Because humans are different in countless ways, it invites strong formal limits. Judges of any ideological persuasion must identify a limited set of inequalities to protect against and define the underlying categories narrowly, necessitating questions of “likeness” (i.e., is pregnancy discrimination akin to gender discrimination) instead of worthiness.
- This focus on difference sidesteps questions of what rights are owed. “An equality regime protects against a whites-only election but says little about the right to vote,” she writes.
- Avoiding these questions induces error in the calculation of treatment. She points to sentencing and death penalty reforms of the 1980s and 1990s; their push to enforce consistency “perpetuated underlying injustices in the criminal system, exacerbated mass incarceration, and shifted attention away from substantive sentencing reforms.”
Equality review promotes a “juristocratic rights regime.” Professor Procaccini contends that equality review legitimizes the Supreme Court’s “incursions into domains of policy.”
Proponents of an equality-based rights regime contend that equality analyses are inherently more deferential to political branches than a substantive rights alternative, because they allow legislatures to “level” statutes to be more inclusive or tailored and offer a more neutral standard to enforce.
Professor Procaccini argues that, for many equality violations, leveling “up” or “down” is a non-starter. For instance, when the Supreme Court struck down COVID-era restrictions on in-person worship, leveling was not an option in either direction; tightening restrictions on in-person activities would be untenable, while narrowing restrictions would be irrational.
When it comes to neutrality, she argues that striking down an act of the legislature based on equality is as “interventionist and policy-laden” as striking down a law for violating a substantive right. “It is not less interventionist to declare that campaign finance laws must treat individuals and corporations equally (Citizens United) than it is to declare that corporations have free speech rights to contribute to political campaigns.”
At its core, equality frameworks determine who or what is equal, which requires judges to draw on external principles. “Equality review is, in this way, never neutral.”
Equality is not suited to address today’s constitutional challenges. In early and mid-20th century, the post-Lochner Supreme Court was challenged to identify a neutral approach to rights recognition while addressing, as Professor Procaccini puts it, “the era’s main rights abuses of race discrimination and political persecution.” Equality was astonishingly well-suited to overcome this challenge because it offered an ostensibly neutral and effective approach to disrupt the state’s discriminatory power.
But “while inequality remains a deeply troubling and destabilizing force in contemporary society, the manifestations of inequality today are different from what they were in post-war America,” she explains.
Professor Procaccini argues that modern-day constitutional crises – “substandard living conditions, government dysfunction and abuse, and a climate of extreme divisiveness” – have only been exacerbated by a focus on equality.
Current frameworks, she contends, have widened the equality gap by benefitting the most powerful while only indirectly addressing the standard of living at the bottom. In a highly plural society, determining equality according to specific characteristics becomes “less and less compatible with ordinary lawmaking,” hamstringing efforts to create and pass common sense legislation. It also stokes “pluralism anxiety” – a widespread fear by dominant and traditional groups about the relative dilution of their social and political power – which leads to more fragmentation, polarization, and divisiveness.
“As pluralism has grown, equality has, counter-intuitively, resurfaced many of the same resentments and divisions that equality was originally called on to cure,” Professor Procaccini writes.
Finding the Right Alternative to Equality
Professor Procaccini concludes by calling attention to the power of substantive, groundbreaking rights – for areas such as housing, education, voting, parental support, and healthcare – to potentially resolve modern-day challenges that current standards inhibit or fail to adequately address.
“Equality has spurred great social advances and remains a noble and important constitutional cause,” she concludes, “but its problems undercut the strength of its position as the unassailable center of constitutional rights law. By revealing equality’s stronghold on constitutional rights and the costs it has imposed, this article thus aims to move rights forward and beyond the frame that has served, for decades, to confine them.”