Chapter Three
No Nation of Citizens
America’s first civil war never really ended. It just entered a new phase. There were two fronts in this more genteel stage of the war: one over America’s past, and one over its future. The Lost Cause fought a cultural battle for America’s memory, turning Robert E. Lee and Stonewall Jackson into martyrs who’d defended states’ rights and the Confederacy into an underdog that never had its day. Meanwhile, an even more consequential battle unfolded in courtrooms as the two sides fought to rebuild the nation with new principles.
The moment the Civil War ended, the constitutional war began. The story of that shadow war was the most important thing I learned in law school.
The first major blow was struck in New Orleans in 1873, a year before the White League’s revolt. It came in the Slaughterhouse Cases, in a decision that is now universally regarded as incorrect by legal scholars across the political spectrum.1 With this, Southern efforts to rebuild the nation in the image of the Confederacy intersected with the Constitution; together, the two birthed many hideous offspring.
What does it mean to be a citizen, and what does it mean to be a victim? The law had a golden opportunity to make the first of those questions the foundation of our civil rights jurisprudence. Instead, through a series of moves, the Supreme Court deprived the nation of a conversation about the meaning of citizenship and created one about the meaning of victimhood. That choice left our country worse off for more than a century afterward, all the way to the present day, with implications for American law and culture.
Toward the end of Woke, Inc., I argued that identity politics flourishes when people embrace their tribal identities to fill the void left by the absence of national identity.2 In this chapter, I explain how constitutional law encouraged that transition. The Constitution, after all, literally defines what it means to be American. So before I explain the constitutional story of how we became a nation of victims, I’ll tell you why we never got to be a nation of citizens.
The Constitution’s Fourteenth Amendment begins by telling us who counts as a citizen and saying citizens have certain fundamental rights, but it says virtually nothing about what those rights are. Today, we ask what constitutional rights people have instead of what constitutional rights citizens have. This section explains how that happened.
The Slaughterhouse Cases concerned the interpretation of the privileges and immunities clause, a key part of the Fourteenth Amendment. As the dust settled on the Civil War, America began redefining itself by amending the Constitution, passing the Thirteenth, Fourteenth, and Fifteenth amendments in rapid succession. The Northern states passed them, that is, and required the Southern ones to accept them as a precondition for full readmission into the Union.
The Thirteenth Amendment outlawed slavery, and the Fifteenth protected former slaves’ right to vote, but it was the Fourteenth where the Northern states did most of their work reinventing America. The framers put the most important parts at the beginning: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The Slaughterhouse Cases forced the Supreme Court to interpret the Fourteenth Amendment five years after it was ratified. Some poor butchers in New Orleans sued some rich ones, saying they were creating a monopoly preventing them from practicing their trade, an activity the plaintiffs claimed should be an unbridgeable privilege of citizens of the United States.
In a 5-4 decision, the Court reasoned that the privileges and immunities clause didn’t protect the butchers because the rights it covered didn’t include ones that people might have in virtue of being citizens of the United States, but only ones they had in virtue of being citizens of the United States. It’s a very fine distinction, one only a lawyer could love. Instead of asking the straightforward question of what rights American citizens had, the Court asked what rights citizens had to possess in order to unify the states they belong to. That meant that the Court understood the privileges and immunities clause to protect only certain rights to travel around the nation—the rights to travel between states; to travel to Washington, DC; and to use navigable rivers.3
The bottom line? With the privileges and immunities clause, the Fourteenth Amendment’s framers included broad language to protect citizens’ rights, but the Supreme Court immediately transformed it into very narrow language protecting their right to travel around the United States.
If you’re wondering why the Court erased the privileges and immunities clause right after it was written, you’re not alone. The answer is that it felt that protecting the rights of citizens was a job for the states they belonged to, not the federal government, so the federal government could only be in charge of protecting their right to move around the states. The Civil War had ended, but the battle between state and federal power immediately resurfaced in constitutional law.
I looked up the histories of the nine justices and discovered that one of the ones in the narrow majority, Nathan Clifford, was pro-slavery. Justice Clifford was appointed in 1857, shortly before the war. Afterward, he did his best to defuse the Reconstruction Amendments. He coined the phrase “equality is not identity,” arguing that treating races equally didn’t require treating them identically; his theory later became known as “separate but equal” in Plessy v. Ferguson.4 We defeated the Confederacy’s generals, but we never defeated its Supreme Court justice. Supreme Court justices, as we keenly appreciate today, are appointed for life.
The Fourteenth Amendment had begun by specifying who counted as a citizen, and then with the privileges and immunities clause attempted to ground Americans’ fundamental rights in their citizenship. If that key plank of the Fourteenth Amendment had survived Justice Clifford and the Slaughterhouse Cases, our nation would’ve evolved a jurisprudence clarifying the relationship between citizenship and fundamental rights—for instance, one of the first things the Court would’ve had to do would be to distinguish the privileges citizenship grants from the immunities it entails. Such distinctions about the benefits of citizenship would likely have evolved side by side with an account of its duties; one cannot develop a theory of what one is owed by others without simultaneously developing a theory of what one owes them.
Instead of illuminating the rights of citizens, as the years went on, the Court gradually located fundamental rights in the remaining two clauses from the second sentence of the Fourteenth Amendment. With its due process jurisprudence, it made the Fourteenth Amendment protect the fundamental rights of people instead of citizens. With equal protection doctrine, it gave instructions about which groups of people ought to be regarded as victims deserving of special protection.
The privileges and immunities clause was gone, but judges saw convenient language right after it in the due process clause, saying that states couldn’t deprive people of life, liberty, or property. This seemed like a promising location for rights that were fundamental but unspecified elsewhere in the Constitution.
The problem was that the due process clause, in the end, was meant to provide only procedural protections, not substantive ones. It said not that states couldn’t deprive people of life, liberty, or property, but that they had to provide timely notifications and hearings first. It was an attempt to prevent America from recreating one of English law’s greatest mistakes: the Star Chamber.
The Star Chamber was a secretive English court that wielded vast power from its seat in the Palace of Westminster. Until it was abolished in 1641, it would frequently haul nobles in without notice, representation, or charges and assign them whatever punishment it wanted, sometimes ignoring the law to do so. It did all this to fight the nobles’ privilege in the name of a nebulous legal concept called equity, which was vague enough to mean whatever the Star Chamber wanted it to. Remind you of anyone else?
The US Constitution’s guarantee of due process was meant to prevent the Star Chamber from being reborn in America. It may have been unsuccessful; these days, I think the Star Chamber goes by “Twitter.” But the thought was good. Getting timely notifications and hearings about judicial acts that might deprive you of life, liberty, or property is actually pretty important. The Fourteenth Amendment’s due process clause was always meant to protect those boring procedural rights, not juicy substantive ones. That’s why it’s called the due process clause.
The justices solved this problem by saying that the due process clause protects not only procedural due process but also substantive due process. If the term sounds strange, that’s because it’s an obvious contradiction, Orwellian doublespeak. Antonin Scalia spent his entire judicial career railing against substantive due process, claiming it would be the death of democracy.5
According to Scalia, the way substantive due process works is basically this: a judge looks at a law and thinks really hard about whether they like it or not. If they don’t, most of the time, they say that it deprives people of a fundamental liberty without due process of law.
The legal fiction justifying substantive due process is this: fundamental rights are so important that no number of timely notifications or hearings could be sufficient to justify the government in taking them away. So if the government has taken away a fundamental liberty, it doesn’t matter how good the process it used was: we can deduce that it wasn’t the amount of process that was due because no amount of process could be good enough.
If that argument doesn’t make sense, don’t worry about it. It’s legal nonsense, meant to sound impressive, but ultimately meaningless—full of sound and fury, but signifying nothing. What it comes down to is that the Court felt the Constitution ought to have some clause protecting fundamental rights, and it wrapped itself into knots trying to find a way to say those rights came from the due process clause, because they were actually located in the privileges and immunities clause but an earlier Supreme Court had killed that.
But the privileges and immunities clause protected the rights of citizens, while the due process clause protected people. The Supreme Court’s flailing efforts to locate fundamental rights in the Fourteenth Amendment’s due process clause, then, made the question come down not to the nature of citizenship, but to a single issue: what fundamental rights do people have?
In contrast, suppose that we had framed the analysis of fundamental rights through the privileges and immunities clause, as the framers of the Fourteenth Amendment intended. Instead of taking the due process clause, cutting out the process part, and asking judges to decide which rights the single word “liberty” entails, there would’ve been at least two important guardrails to guide judicial inquiry. First, since the law would’ve had to wrestle with the difference between the privileges and immunities of citizenship, the question for judges would be more specific than what they thought the word “liberty” meant. Second, even more importantly, while today’s judges ask what fundamental rights people have, in a world without the Slaughterhouse Cases, they’d ask what fundamental rights citizens have.
These are completely different questions. If all people have a fundamental right that derives from their humanity, that right does not in fact derive from their citizenship. There are probably many fundamental human rights—like, perhaps, the rights to due process and equal protection of the law—but the privileges and immunities clause doesn’t attempt to protect them. I like Kant’s account of what human beings owe each other, but I’ve never thought the Fourteenth Amendment enshrined the categorical imperative in the Constitution.
So, counterintuitively, if Fourteenth Amendment jurisprudence had evolved in the way it ought to have, we might be making the opposite of the legal arguments we make today. Today, we argue that people possess fundamental rights and make grand, sweeping claims about human rights in court. But if the privileges and immunities clause replaced substantive due process, those arguments would be losers, not winners. If a right is fundamental for all humans, it cannot be one of the privileges or immunities conferred by American citizenship.
Of course, one could argue that some fundamental human rights are protected through the privileges and immunities of American citizenship. In a world without the Slaughterhouse Cases, this argument likely would’ve been one of the first ones lawyers raised—in fact, it might have sprung up under a doctrine of immunities. One could attempt to argue that the privileges of American citizens involve some special rights beyond what all humans possess, and the immunities of American citizens involve things that can’t be done to them because they shouldn’t be done to any human. This would have been an interesting and complex question for constitutional law.
Although a worthy question, this argument that human rights are included among the immunities of American citizens would’ve had to contend with the troubling fact that the structure of the Fourteenth Amendment seems to deliberately distinguish between the protections it gives citizens and the ones it affords all people. The amendment begins by saying who’s a citizen and immediately follows that by protecting two classes of rights citizens have. It then shifts its focus from citizens and explicitly says that all people have the rights to due process and equal protection of the law. This structure suggests that the privileges and immunities of citizenship were meant to entail rights beyond the ones offered to everyone. If the privileges and immunities clause was meant to protect rights all people have, why not just use the word “person” like the remaining two clauses of the same sentence?
Elucidating the differences between human rights and the privileges and immunities of citizens would’ve raised difficult and fruitful questions in constitutional law—for instance, the exploration might have begun by asking what duties citizens have that noncitizens lack. The legal concepts raised by the resulting jurisprudence would’ve inevitably trickled out into American culture, the same way constitutional doctrines about the value of diversity have after being introduced by equal protection analysis of affirmative action law, or the way debates over liberty have shaped culture through due process law.6
Imagine how different the nation would be if we discussed citizenship with the same seriousness with which we discuss diversity, the same fervor with which we debate fundamental liberty. That was supposed to be our path. Talking about the nature of citizenship sounds lofty and abstract, while talking about diversity sounds practical and pressing. But there’s actually greater constitutional justification for discussing citizenship, and if it weren’t for the Slaughterhouse Cases, those discussions would’ve seemed very practical.
But the privileges and immunities clause now stands for nothing. And so instead of having the Fourteenth Amendment pose the intriguing question of what rights citizenship confers that humanity itself does not, we are left with the highly subjective question of what fundamental liberties all people possess.
As an illustration of the costs of this unguided subjectivity, consider that the substantive due process doctrine was actually created in Dred Scott v. Sandford, when in 1857 the Court ruled that for the federal government to side with a state that freed an escaped slave was a violation of his owner’s right to not have his property taken away without receiving due process of law under the Fifth Amendment. The Fifth Amendment requires the federal government to give due process, while the Fourteenth requires it of states.7 The right to own a slave struck the Court as so fundamental that no number of notifications or hearings could justify taking the owner’s property away.
A conservative Court then resurrected substantive due process in the early 1900s in the Lochner era, a legal civil war where for four decades the Court struck down whatever progressive laws it disliked, saying they infringed on some fundamental liberty, usually the liberty to make contracts. In Lochner v. New York itself, for instance, the Court ruled that a New York law setting maximum working hours for bakers violated the bakers’ Fourteenth Amendment substantive due process right to freedom of contract.8
The conservative era of substantive due process ended only when President Franklin D. Roosevelt threatened to pack the Court, tired of it derailing the New Deal. He came up with some story about needing to add more justices to the Supreme Court to help the older justices carry the workload. It was obviously bullshit, but substantive due process was also bullshit, so the morality of all this is unclear.
Incidentally, as I wrote this, Microsoft Word informed me that the word “bullshit” might be offensive to my reader and I ought to reconsider using it. As I said in the last chapter, America’s victimhood complex drags everything into its grasp. I will use the word and trust you to be brave and strong. Anyway, one reason we don’t have fifteen justices right now is that Justice Owen Roberts defected from the conservative wing in what’s now called “the switch in time that saved nine.” After that, the conservative justices gave up their arms and stopped using substantive due process to do whatever they wanted.
But three decades later, a liberal Court used substantive due process in Roe v. Wade and created a constitutional right to have an abortion.9 The monster was back. Scalia devoted his life to fighting it.10 He died of natural causes, but sometimes I think that somehow, it must’ve been substantive due process that killed him.
I wish I could at least hear the arguments that once we fully understand what it is to be a citizen, it’s clear that citizenship entails an unenumerated privilege or immunity to control one’s body through having an abortion. I wish I could hear the arguments about whether it’s a privilege or an immunity or, as some lawyers would no doubt argue, both. And I want to hear a judge question them about what theory of the relationship between the privileges and immunities of citizenship allows them to say that the choice of abortion is protected by both.
That’s the kind of thing judges should be asked to do. Having judges decide what fundamental rights people have is—if you’ll pardon my language—balderdash.
The Constitutional Oppression Olympics
After the Supreme Court ended one conversation about American identity, it began another. We never got to find out what it means to be a citizen. But the Court told us exactly what it means to be a victim, and we listened carefully.
Consider, for example, the most famous footnote in constitutional law, Carolene Products footnote 4, the progenitor of modern equal protection jurisprudence. United States v. Carolene Products was decided in 1938, one year after the switch in time that saved nine. The newly compliant Court dutifully upheld the federal government’s power to prohibit certain kinds of milk from being shipped in interstate commerce, holding that the kind of economic regulation it had struck down for decades under substantive due process was now presumptively constitutional because Congress only needed to have a rational basis for passing such laws.11
Hardly anyone remembers the substance of Carolene Products. What’s more important is that, just as it gave up its arms on adjudicating economic regulations, the Court snuck in a key footnote that opened the door for it to possess broad authority on civil rights. Writing for a plurality, Justice Harlan Stone wrote that the Court would employ a stricter form of judicial review on some laws, concluding that “prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.” This more searching form of judicial review came to be known as strict scrutiny.
As later Courts fleshed out the meaning of the footnote, it grew into the “suspect class” doctrine, laying out the criteria that would presumptively make laws affecting certain groups merit strict scrutiny instead of the rubber stamp of rational basis review. Such protected groups were to be recognized if they were discrete and insular (meaning relatively powerless to mobilize their fellow citizens to protect them through the political process), if they had historically been discriminated against, and if membership in the group was based on immutable characteristics.
Constitutional scholar Bruce Ackerman argued in an influential article that Carolene Products was the Supreme Court’s attempt to redefine itself as a cog in the system of democracy instead of its overlord. With the rational basis review’s rubber stamp, the Court abandoned its Lochner-era power to strike down any law it disliked; it presumed that a democratically passed law was constitutional. But, Ackerman said, with footnote 4 the Court identified the rare times judicial activism was appropriate: to correct defects in the democratic process that had allowed majorities to oppress minorities. The idea is that some groups of minorities, like black people in the Antebellum South, were likely to face prejudice so strong that it could prevent them from protecting themselves using normal political processes. Since groups especially likely to be victimized couldn’t fully protect themselves, it became the Court’s job to guarantee them equal protection.12
The equal protection clause did in fact play this role sixteen years after Carolene Products, when the Court applied it to find that segregation was unconstitutional. Brown v. Board of Education was a case where the Constitution worked as intended and the equal protection clause really did bring justice to a historically oppressed minority group that had been disempowered by the majority. But as the decades went on, the Court kept looking for new victim groups to protect, and it started using the framework outlined by Carolene Products to find them.
So black people were enshrined by precedent as the gold standard of constitutional victimhood, the ideal suspect class—any law that treated them differently was automatically suspect. For all other groups seeking to fight discriminatory laws, to get special constitutional protection, they had to prove to the Court that they met the requirements of Carolene Products footnote 4: that they were “discrete and insular,” that they were politically powerless, that they’d been discriminated against historically, and that their group identity was based on immutable characteristics.
In other words, to get coveted suspect class status, groups had to do their best to argue that they were like black people, the paradigmatic victims. Otherwise, they’d be consigned to rational basis review, and the Court would reflexively approve of almost any law treating them differently from other groups. The Oppression Olympics was born in equal protection law, and suspect class status was the gold medal.
Some groups made it. Along with race, today national origin, religion, and status as an alien are called suspect classifications. Any law treating a group differently on the basis of one of those categories faces the harsh light of strict scrutiny, and the government must prove that the law is narrowly tailored to achieve a compelling state interest. As a demonstration of how demanding strict scrutiny is, consider that only two policies treating people differently on the basis of race have ever survived it: the internment of the Japanese during World War II, and affirmative action.
After a long battle, women eventually won something called intermediate scrutiny and gender became known as a quasi-suspect classification. The basic problem was that women could prove some elements of the Carolene Products criteria, but not others. They could show they’d experienced a history of discrimination and that their identities were based on immutable characteristics. But they weren’t politically powerless, since they controlled about 50 percent of the nation’s votes, and they were by nature the opposite of a discrete and insular group. So eventually gender became a quasi-suspect classification, along with legitimacy of birth. Women got a silver medal.
After that, the Court felt that constitutionally recognized victim groups had flourished enough and that suspect classes ought to be kept scarce. There could only be so many spots on the victimhood podium, and groups had to compete with each other to get them. There have been no new suspect classes in decades. Among the many groups who sought precious suspect class status and lost were the poor, the intellectually disabled, and the elderly. And, so far, gay people.
The final groups to win the Oppression Olympics were, ironically, white people and men. They won a sneaky come-from-behind victory that has hardly been noticed even to this day. Legal scholars often use the terms “suspect class” and “suspect classification” interchangeably. But in fact there’s a big difference between the two, one law professor Jed Rubenfeld identified in an article on affirmative action.13 Equal protection law initially focused on identifying suspect and quasi-suspect classes like black people and women. But as time went on, conservative justices gradually broadened the language so that instead of saying laws treating black people differently were automatically suspect, equal protection doctrine said that laws treating races differently were. Today, instead of saying that black people are a suspect class, we say that race is a suspect classification. So laws treating white people differently from others also face strict scrutiny.
We kept using the Carolene Products criteria to identify victim groups like women. But once we identified and protected them, men got that protection too, because we now say not that laws treating women differently are suspect, but that laws treating genders differently are. With this judo-like legal move, a national history of discrimination against women became a legal reason to protect men. A history of discrimination against black people was rephrased as a history of discrimination on the basis of race, so now all other races share black people’s spot at the top of the victimhood podium. It was an incredible last-minute legal maneuver before the race for victimhood status ended and the hierarchy was frozen. Equal protection law had been about protecting victimized minorities, but the majority struck back and subtly protected itself from victimization too.
Much of the legal history of the fight for gay rights can be understood as the struggle for gay people to win recognition as a suspect class or, as we put it today, to make sexual orientation a new suspect classification. Much hinges on achieving constitutional recognition as a victim group—preferably prototypical victims like black people, winning coveted strict scrutiny, or at least plausible victims like women, getting intermediate scrutiny. Failing that, gay people would be relegated to dreaded rational basis review like the elderly, intellectually disabled, or poor, and laws treating them differently would be rubber-stamped.
Indeed, that’s how the early gay rights cases went, as in Bowers v. Hardwick, when in 1986 the Court applied rational basis review to find a Georgia law banning gay sex constitutional.14 Gay people couldn’t prove a history of discrimination anywhere near that experienced by black people, the paradigmatic victims. The discrimination was in the present, with laws like Georgia’s ban on gay sex, but the constitutional definition of victimhood provided by equal protection law required the Court to look at the past.
So gay people have done their best to meet as many of the Carolene Products criteria as possible, creating a discrete and insular group identity, establishing a history of discrimination, arguing that they’re politically powerless, and claiming that homosexuality is an immutable characteristic. The Court told everyone how to shape their group identities to receive constitutional victim status, and gay people have dutifully crafted their group identity around its requirements. Their efforts have not yet been rewarded on the federal level, but some state laws have granted gay people suspect class status.
As law professor William Eskridge noted, this need to be seen as politically powerless created strange incentives: “Gay rights advocates have spent a generation seeking political advances for sexual minorities—yet now find themselves arguing that gay men, lesbians, and bisexuals are ‘politically powerless.’ During the same time period, traditionalists have sought to block gay power—yet now say that ‘homosexuals’ are political powerhouses.”15
The more effective gay rights advocates are in the political arena, the less effective they are in the legal one. Each minor political victory sets them further back in their effort to reach the ultimate constitutional prize, suspect classification status. The Court’s victimhood-centric approach to equal protection ensures that gay people have an incentive to portray themselves as victims no matter how many political victories they achieve. It gives them an incentive to pursue the big win of victimhood instead of the slow win of politics. They must always be victims.
Carolene Products footnote 4 also created a world where gay people would have more legal protection if they argued in court that being gay was an immutable characteristic that they could never change—that they’d been born that way.
As Douglas Murray points out in The Madness of Crowds, to this day science is undecided on the question of whether homosexuality stems more from nature or nurture. Nevertheless, he writes,
The single factor that has most clearly helped to change public opinion about homosexuality in the West has been the decision that homosexuality is in fact a “hardware” rather than a “software” issue. Some people—mainly religious conservatives—continue to try to smuggle in their contrary view on this matter. For instance some of them still like to describe homosexuality as a “lifestyle choice”—a phrase insinuating that homosexuals have chosen their own programming.
Countries and times in which this attitude predominates tend to coincide with periods of repressive laws against homosexual activity. And so there is an understandable push to reject the “lifestyle choice” claim and encourage the recognition that homosexuality is a hardware matter or, as Lady Gaga would put it, a matter of being “Born this way.”16
When the Court’s equal protection jurisprudence evolved to grant groups more judicial protection if they argued their identity was immutable, it put two thumbs on the scales in favor of the “born this way” view of homosexuality. Murray observes that, conflicting scientific evidence notwithstanding, the narrative of immutable gayness became so powerful that it quickly became a sign of bigotry not to accept it.
Ironically, now that the gay rights movement has rode the wave of immutability to great victories, progressive society is contemplating a new dogma: sexuality is fluid. We occupy a strange moment where social norms still demand we think gayness is innate, but also demand we think sexual orientation is fluid. Speaking on the issue is therefore like navigating Scylla and Charybdis; best to wait ten years until the trends settle before opining.
In the introduction, I observed that Americans often fight each other by attempting to use language to control thought. Law controls both language and thought. In my last book, for instance, I showed how our nation’s obsession with diversity stems from a piece of dicta in Regents of the University of California v. Bakke, a plurality opinion on affirmative action.17 As you can see, those bits of nonbinding judicial commentary in Fourteenth Amendment equal protection jurisprudence tend to wield outsized cultural influence: you can trace a direct line between Carolene Products footnote 4 and the modern insistence that homosexuality is innate. The Supreme Court writes a footnote in 1938 in a case about milk, and seventy years later Lady Gaga is telling you gay people are born that way.
All of this maneuvering has been done to get the Court to declare that gay people meet its victimhood criteria. And the funny thing? If gay people do succeed in getting sexual orientation declared a new suspect classification, a history of discrimination against gay people, their political powerlessness, and the immutability of gayness will ultimately justify making laws about straight people receive strict scrutiny too. Under the old regime, gay people would’ve been a suspect class, and only they would receive special protection; under the new regime, sexual orientation would become a suspect classification, and straight people would receive special protection too.
The moves and countermoves in the constitutional war for victim status have led equal protection law to a strange place. It is a hodgepodge of rules reflecting little more than the efforts of each identity group to seize power by claiming victimhood. In the Oppression Olympics, ironically, might makes right.
Equal protection law’s three-tiers-of-scrutiny approach is famously bad.18 Groups have to compete with each other to win scarce victim status, it’s not clear how many Carolene Products criteria they have to meet or what the criteria mean, past discrimination matters but present discrimination doesn’t, and if a minority group somehow succeeds in proving victim status, the corresponding majority then gets the same protections.
Fighting discrimination doesn’t have to be a competition for victim status. Legal scholar Susannah W. Pollvogt has outlined a theory by which equal protection law could focus not on identifying special victim groups but on making sure individuals don’t have their merit burdened by being reduced to mere members of groups they belong to. She begins with this observation:
[I]s it the nature of the group being discriminated against that makes the discrimination [wrong], or the nature of the discrimination itself?
By comparing social groups to one another and sorting them into suspect, quasi-suspect, and non-suspect classes, the Court itself engages in discriminatory, hierarchical ordering of these social groups with respect to one another. Worse yet, this ordering is virtually permanent. Rather than analyzing the relevance of a particular trait in the context of a specific discriminatory action, the Court declares certain classifications suspect for all time and in all circumstances.
And although this designation is based on history, it then becomes permanent and ahistorical, applied with symmetry to subordinated and non-subordinated groups, and unlikely to be subject to reexamination.19
Pollvogt explores a variety of interesting cases in equal protection jurisprudence to divine a new theory. Some of the most informative ones are those very rare cases when the Court has denied a group suspect class status, but still struck down laws burdening them as discriminatory. In City of Cleburne v. Cleburne Living Center, Inc., for instance, the Court ruled that people with cognitive disabilities weren’t a suspect class, but still struck down a regulation denying a company the right to build a group home for them.20 Although rational basis review is virtually always a rubber stamp, the Court found it so obvious that the city simply didn’t want cognitively impaired people to live near nonimpaired ones that it struck the law down. The trait of cognitive disability had nothing to do with the government’s interest in regulating housing, so the only plausible explanation for the law was prejudice. The impaired individuals were being denied housing based on disdain for their group. They weren’t given the chance to be good neighbors.
This is the true heart of the equal protection clause, Pollvogt argues, not all that stuff about finding special victim groups and arranging them in a hierarchy. When the government burdens individuals on the basis of their membership in some group, the question is simply whether the nature of that group is relevant to the purpose the government is trying to achieve. In Brown v. Board of Education, for instance, there was simply no connection between race and public education, so the only plausible explanation for why a law would put black people in different schools is that the lawmakers didn’t like black people. A black person with many identities beyond their race would be sent to a school on the basis of their blackness, even though blackness has nothing to do with school. Pollvogt sums up her theory this way:
Thus, the political theory underlying much of the Court’s post–Carolene Products jurisprudence actually focuses more on the individual than on the group. Specifically, it seeks to preserve (1) an ethos of self-determination based on individual merit and, in connection with this, (2) a modicum of social mobility in which individuals can express that merit.21
When a law targets a group for unfavorable treatment, Pollvogt says, instead of asking whether that group has special protected-victim status, equal protection law should simply require the government to prove that there’s a connection between the trait that defines the group and the interest the government’s trying to achieve. Otherwise, it’s interfering with individuals’ self-determination on the basis of their membership in some group with no proof that belonging to that group is relevant to anything.
That’s just prejudice. Instead of forcing everyone to demean themselves by playing the Oppression Olympics, we can refocus equal protection law on ensuring individuals don’t have their merit burdened by arbitrarily being reduced to irrelevant group identities.
Modern Victimhood
The evolution of Fourteenth Amendment jurisprudence saw America wage an endless battle over how to redefine itself after the Civil War, and its choices were often very poor. But the constitutional origin story of our present identity is not just a tale about how the law incentivized us to present ourselves as victims instead of citizens; it is simultaneously a tale about how judges gave themselves more and more power to decide who counted as a victim.
And in doing so, the Court gradually gave itself near total power over the most important questions about American identity. This was fine with liberals when it used that power to create a right to abortion and protect gay rights, just as substantive due process was fine with conservatives when the Court struck down economic regulations for decades during the Lochner era. But now we once again have a strongly conservative Court wielding the power to decide who is oppressed.
This is the lesson about law I learned from Antonin Scalia: the tools you create to fight oppression will one day be used by your enemies to oppress people. Both sides need to remember that when building their tools. The equal protection doctrine liberals built up to protect their favored minorities was adapted by conservatives to protect majorities. The due process doctrine conservatives built to fight progressive labor laws was used by liberals to allow abortions.
Now it will fight progressive laws once more, unless conservatives abandon substantive due process and resurrect the privileges and immunities clause, which they ought to do but probably won’t. Just as FDR was driven to threaten court packing to respond to the Lochner Court, we see liberals talking themselves into packing the Court more and more with each passing day.22
White liberals, you see, suffer from their own victimhood complex today. Their oppressor is not any particular race, gender, or class, but they do have a hated overseer. Their abuser is the Constitution itself—the power of a Supreme Court that disagrees with them, the ability of the president to nominate members of that court, the ability of the Senate to confirm them, and looming behind it all, the Great Compromise that gave small states disproportionate representation in the Senate and therefore disproportionate votes in the Electoral College.
Liberals have increasingly taken to arguing that there is something presumptively wrong about presidential, congressional, and judicial power not reflecting the will of the popular vote. But, of course, this is only wrong if you begin with the premise that our national identity ought to be determined by popular vote, which is precisely what the constitutional compromises between large states and small ones were meant to deny. The increasing sense of grievance among white liberals, then, really reflects a sense that the Constitution’s form of republican government has trapped them in a bargain they are unwilling to accept.
It is a great irony that while modern America’s victim complex began as a tale of conservative white victimhood after the Civil War, it has evolved through the constitutional war into an ongoing story about liberal white victimhood. Just as the South seceded from the Union when the Constitution began to threaten its perceived interests and it couldn’t muster the electoral votes to resist, we face the specter of blue states doing the same today. Imagine we had another Lochner era, forty years of a conservative Court using substantive due process to decree who is the victim and who is the oppressor; imagine it applying equal protection to decide which groups have faced historical discrimination and which traits are immutable; imagine more Republicans win the presidency while the population of coastal states grows quicker than their electoral power.
We are left with a constitutional impasse. Can a nation survive under these conditions, where small states would never give up the concessions that were necessary to induce them to join the Union while modern large states would never agree to make those concessions? Do states have a right to secede if they grow unhappy with the Constitution? Why should we expect the Union to remain whole?
The best answer I have sometimes seems naïve: the Union can only stay intact this time, and perhaps should only stay intact, if Americans come to see themselves as fellow citizens rather than each other’s victims. Otherwise we will continue to be locked in endless cultural and legal warfare, like the Hatfields and the McCoys, always avenging the last generation’s grievances, fighting to control the future but never looking forward to it. How could we? We’ve already had one civil war, and we’re still fighting it. The past is not past.