Abstract

Preventing Balkanization or Facilitating Racial Domination: A Critique of the

New Equal Protection

The Supreme Court requires that equal protection plaintiffs prove defendants acted with discriminatory intent. The intent rule has insulated from judicial invalidation numerous policies that harmfully impact racial and ethnic minorities. Court doctrine also mandates that state actors remain colorblind. The colorblindness doctrine has caused the Court to invalidate many policies that were designed to ameliorate the conditions of racial inequality. Taken together, these two equality doctrines facilitate racial domination. The Court justifies this outcome on the ground that the Constitution does not protect “group rights.”

Constitutional law theorists have criticized these aspects of equal protection doctrine. Recently, however, some theorists have defended the Court’s discarding of group-based equal protection. They argue that the social justice advocates should pursue redress for vulnerable groups by assuring dignity-based liberty claims under the Due Process Clause. In a widely cited article, Professor Kenji Yoshino argues, in fact, that dignity is the “New Equal Protection.” Applying insights from “social capital theory,” Yoshino contends that group-based equal protection causes “pluralism anxiety” – or a fear of “balkanization” among the justices. Dignity arguments by contrast do not present such concerns because they rest on appeals to universal justice.

This Article contests the view that the Court should discontinue class-based equal protection in order to maintain social cohesion. Leading social capital theorists find that multiculturalism, though temporarily divisive (if at all), provides many long-term benefits. Also, numerous social-psychological studies find that racial and ethnic inequality cause far more social disruption than group-based identities. This empirical research also demonstrates that the Court’s equality doctrine mirror the views regarding race relations held by most whites and contradict the views held by most persons of color. The enforcement of white majoritarian viewpoints cannot serve as a valid foundation for an equality doctrine. Antisubordination theory, by contrast, would provide more egalitarian outcomes and should inform Court doctrine.