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Varieties of Justice (Aristotle): 

Varieties of Justice (Aristotle) Justice - in wide sense (all of morality) Justice in narrow sense Formal/procedural justice Substantive justice Distributive Remedial: private (torts & contracts) and Criminal (retributive)

Equality: Remedial vs. Distributive: 

Equality: Remedial vs. Distributive In remedial justice, the relevant sort of equality is arithmetic: equality of exchange (contract) or compensation/harm (torts). In distributive justice, the equality is proportional. Benefits distributed in proportion to merit, contribution.

Just Treatment: 

Just Treatment Aristotle: treat equals equally,unequals unequally. Is equality before the law an empty concept? Peter Westen:Yes. Means treat all the same, except when it’s right to treat them differently. Anthony D’Amato: No. Rules out arbitrary distinctions. Even-numbered vs. odd.

Law and Discrimination: 

Law and Discrimination Why should the law be indiscriminate? Because the legal system is supposed to be one of mutual benefit, for the common good. Is is possible for a law to be indiscriminate? If a law prohibits some form of action, it pleases a heavier burden on those antecedently willing and able to perform that very action. If it prescribes some positive duty, it burdens those antecedently unwilling and those for whom the action is especially costly.

Classical Utilitarian Solution: 

Classical Utilitarian Solution Laws should aim at maximizing total utility. Each person “counts for one and only for one”. Can, in principle, justify very unequal solutions: e.g., gladitorial games.

Other Possible Solutions: 

Other Possible Solutions Aim at approximate equality of burden imposed by the entire system of laws. Apply the “maximin” rule: always minimize the burden on those bearing the maximum burden. Always shift cost away from those over-burdened, unless doing so makes someone else still more over-burdened. Further problem: how to measure “burden” inter-personally? Individually or by groups? Do prohibitions always burden the prohibited? Seat belt, DWI, pedophilia?

Discrimination and the 14th Amendment: 

Discrimination and the 14th Amendment The Fourteenth Amendment Arbitrary Classifications “Suspect categories” and “strict scrutiny” Defensive doctrines Problem cases Alternatives to the standard interpretation

The Fourteenth Amendment: 

The Fourteenth Amendment 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.

Section 5: 

Section 5 The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

What is “equal protection”?: 

What is “equal protection”? Amendment doesn’t explicitly preclude any classification, not even racial ones. Arguably, the phrase is intentionally vague or open-ended. Who decides what it means, and on what basis?

Prohibiting “Arbitrary” Classifications: 

Prohibiting “Arbitrary” Classifications Two elements: Classification must fulfill some “legitimate purpose”. E.g., suppressing black people would not be a legitimate goal. The “fit” between the classification scheme and the goal must be sufficiently close: not too over-inclusive, nor too under-inclusive.

Stated or Unstated Purpose?: 

Stated or Unstated Purpose? The stated purpose of the law may not be its real purpose. E.g.: poll taxes, or literacy tests. In inferring the real purpose of the law, should (must) the courts apply a principle of charity?

“Suspect” Categories: 

“Suspect” Categories Certain forms of classification, such as ones involving race, sex, national origin, are considered “suspect”. If the classification is not suspect, then the law must only pass “minimal scrutiny”. Suspect classifications must pass “strict scrutiny”. What is it about race & ethnicity that warrants strict scrutiny? What other categories?

“Fundamental Rights”: 

“Fundamental Rights” If the classification scheme affects “fundamental rights” (such as the right to vote), “strict scrutiny” is once again triggered. No definitive list or criteria for “fundamental” rights has been given.

Minimal vs. Strict Scrutiny: 

Minimal vs. Strict Scrutiny To pass “minimal scrutiny”, it is only necessary that the classification scheme bear some reasonable relationship to the legislation’s purpose. To pass “strict scrutiny”, the fit between the classification scheme and the purpose must be as close as possible, except in certain special cases.

Defensive Doctrines: 

Defensive Doctrines Defensive doctrines specify cases in which a law can pass “strict scrutiny”, even if the degree of fit to the purpose is not perfect. “One step at at time”: unavoidable administrative (not political) obstacles. Compelling state interest: for example, national security. Even then, the discrimination must be “narrowly tailored”.

Intermediate Scrutiny: 

Intermediate Scrutiny Triggered by discrimination on the basis of sex (“gender”). Must be “substantially related” to an “important” state interest. Supposedly a lower standard than strict: but do the terms (‘important’ vs. ‘compelling’) have clear meaning?

Some Problems: 

Some Problems The question of whether a “compelling (or important) state interest” is involved seems to involve the courts in essentially legislative questions: weighing the importance of some substantive end. In addition, it violates the idea that constitutional rights supercede issues of cost/benefit balancing.

Two Alternatives to the Standard Doctrine: 

Two Alternatives to the Standard Doctrine Limit the 14th amendment to the prohibition of classifications that stigmatize or insult certain groups. The Group Advantage Principle: allow (even require) state action that favors the interests of historically disadvantaged groups.

Limit to Stigmatic Harm?: 

Limit to Stigmatic Harm? Why should stigma (damage to dignity or social position) be the only harm considered? Can the courts reliably decide this? (In Plessy v. Ferguson, the SC denied that segregation carried any stigma of inferiority.) Is there a necessary link between discrimination against minorities and stigma? (E.g. quotas for “over-performing minorities”) Doesn’t discriminating on the basis of intelligence, talent, achievement stigmatize the losers?

Individuals and Groups: 

Individuals and Groups Are groups real entities in their own rights, or are they mere aggregates of individuals? Can groups have legitimate claims on other groups, that are not merely the sum of individual claims on other individuals?

Fiss’s Definition of “Group”: 

Fiss’s Definition of “Group” An “entity”: with distinct existence and identity, apart from its members. Members view themselves as part of the group, and are so viewed by others. Interdependency: the identity and well-being of members depends, in part, on that of the group.

Group Disadvantage Theory: 

Group Disadvantage Theory The 14th amendment is to be interpreted as protecting the interests of groups that are: Socially and economically disadvantaged (relative to others). Politically marginal and vulnerable (an isolated minority).

Fiss’s Arguments for Group Disadvantage Interpretation: 

Fiss’s Arguments for Group Disadvantage Interpretation Only explanation of how the 14th amendment applies, even when the state merely enforces the discrimination of others (Shelley v. Kraemer). Only explanation of how facially innocent, de facto discrimination can be found in conflict with 14th. (Poll taxes, literacy test).

Are all of Fiss’s criteria necessary?: 

Are all of Fiss’s criteria necessary? Must the group be perceived as such by others? (Gay, bisexual?) Must the group be disadvantaged? (Professions? Homemakers? Religious minorities? Asians?) Must the group be a source of identity? (Drug addicts? Mentally ill? Ex-cons?)

Fiss claims that the Courts must “amplify the voice” of disadvantaged: 

Fiss claims that the Courts must “amplify the voice” of disadvantaged Is this consistent with the principle of majority rule? Does this apply only to protecting enumerated rights, or does it extend to influencing policy (taxes, regulations, welfare)?