Anderson on Democratic Equality

There must be a better way [than luck egalitarianism] to conceive of the point of equality. To do so it is helpful to recall how egalitarian political movements have historically conceived of their aims. What have been the inegalitarian systems that they have opposed? Inegalitarianism asserted the justice or necessity of basing the social order on a hierarchy of human beings, ranked according to intrinsic worth. Inequality referred not so much to the distributions of goods as to relations between superior and inferior persons. Those of superior rank were thought entitled to inflict violence on inferiors, to exclude or segregate them from social life, to treat them with contempt, to force them to obey, work without reciprocation, and abandon their own cultures. These are what Iris Young has identified as the faces of oppression: marginalization, status hierarchy, domination, exploitation, and cultural imperialism. Such unequal social relations generate, and were thought to justify, inequalities in the distribution of freedoms, resources, and welfare. This is the core of inegalitarian ideologies of racism, sexism, nationalism, caste, class, and eugenics.

Egalitarian political movements oppose such hierarchies.

Elizabeth S. Anderson, What is the Point of Equality? (pdf)

The Fundamental Principle of Popular Sovereignty…Good for One Day Only

At the end of the Supreme Court’s term last year, I noted that when it came to the Affordable Care Act case, every justice agreed with the principle that the Constitution creates a system of enumerated powers at the federal level. But, when it came to the Arizona’s punitive immigration law, those same nine justices all agreed the federal government was endowed with unenumerated powers, resulting from sovereignty, to regulate immigration.

As I said then, “both positions were consistent with past decisions”:

All this illustrates a point I’ve been trying to make–we have to distinguish between claims about what the Court does, from what it does, but both involve talk.  Both are consequential, but neither are automatic. The key is not to ignore what the Court says or to take it as truth, but rather to focus on in what contexts certain things are taken for granted (and here we’re not just talking about the Court but also the larger legal community) and how it differs from other contexts.

This term brings a similar example, although this time it involves a smaller number of justices.

State are not Sovereign: The Supreme Court and Voting Rights

[Update: For a sense of legal landscape in the wake of the Supreme Court’s decision, read The Way Forward After Shelby County by Joey Fishkin]

The Supreme Court has struck down Section 4 of the Voting Rights Act (pdf), rendering Section 5 inoperable until Congress changes Section 4 (assuming Congress can and there is anything Congress could pass that the Supreme Court would allow, which is unclear).  I addressed the most fundamental conservative objection to the Voting Rights Act after oral arguments – that it is a “racial entitlement”.

Generally speaking, you should just read Justice Ginsburg’s dissent, which righteously shreds Chief Justice Roberts’, and Jessica Mason Pieklo.

I wanted to address something a little more abstract.

Roberts’ opinion repeatedly references ‘state sovereignty’ as an (unenumerated) constitutional principle that supposedly overrides the enumerated power of Congress to enforce the 15th Amendment through appropriate legislation. Let’s leave aside the issue of enumeration, and of the case law (Ginsburg dispatched that handily).  The bigger problem with this is that it’s absurd.

The Constitution makes clear that sovereignty is not vested in governments. It is vested in the people. Neither the states nor the federal government are sovereign. (Yes, don’t miss that second part – and let’s not pretend that a war settles constitutional questions either). From the opening words of the preamble of the original Constitution to it’s final clause, from the beginning to the end of the Bill of Rights, the basic, most fundamental constitutional principle is popular sovereignty. The entire process of ratification, by conventions rather than by state governments, only makes sense if you begin with popular sovereignty.

Literally every other principle we associate with American constitutionalism–separation of powers, federalism, enumerated powers–flows from this basic principle.

Individual Rights are Trumps

Individual rights are political trumps held by individuals. Individuals have rights when, for some reason, a collective goal is not a sufficient justification for denying them what they wish, as individuals, to have or to do, or not a sufficient justification for imposing some loss or injury upon them. This characterization of a right is, of course, formal in the sense that it does not indicate what rights people have or guarantee, indeed, that they have any.  But it does not suppose that rights have some special metaphysical character…

Ronald Dworkin, Taking Rights Seriously

The Meaning of Freedom

The state can’t give you freedom, and the state can’t take it away. You’re born with it, like your eyes, like your ears. Freedom is something you assume, then you wait for someone to try to take it away. The degree to which you resist* is the degree to which you are free.

-Utah Phillips

*Note that Phillips was a pacifist – lest the word ‘resist’ be misunderstood.

Rights as a Claim and a Resource

Instead of thinking of judicially asserted rights as accomplished social facts or moral imperatives, they must be thought of, on the one hand, as authoritatively articulated goals of public policy, and on the other, as political resources of unknown value in the hands of those who want to alter the course of public policy.  Stuart Scheingold, The Politics of Rights

“…there is something very wrong with that system”

We have . . . learned the . . . lesson of history that no system of criminal justice can, or should, survive if it comes to depend for its continued effectiveness on the citizens’ abdication through unawareness of their constitutional rights. No system worth preserving should have to fear that if an accused is permitted to consult with a lawyer, he will become aware of, and exercise, these rights. If the exercise of constitutional rights will thwart the effectiveness of a system of law enforcement, then there is something very wrong with that system.  Justice Arthur Goldberg, Escobedo v. Illinois (1964) [h/t Jerome Skolnick]