Owen Fiss is right to encourage us to doubt the constitutionality of both state laws and provisions of the 1996 Welfare Reform Act that deny illegal and legal immigrants what might be called “social welfare goods”–access to medical care, education, food stamps, and job opportunities.He is also correct, in my view, to suggest that the unconstitutionality of those provisions follows from their inherent tendency to subjugate a group of people into pariah or near-pariah status, rather from than their tendency to group individuals unfairly according to an irrational classification.As Fiss argues, the Equal Protection Clause, best read, does indeed prohibit the severe subjugation of groups of persons no less than it prohibits the unfair classification of individuals.Further, and although this “antisubjugation interpretation” of the Equal Protection Clause has been only a minor theme in the Supreme Court’s development of the Fourteenth Amendment (in contrast to the antidiscrimination principle), Fiss is probably right to suggest that the antisubjugation principle may rest on a superior reading of the Clause than the antidiscrimination principle.The antisubjugation principle, for which Fiss and many others now argue, may as a general matter represent an ideal that is truer to the amendment’s history, closer to the natural reading of the language of the clause, and more conducive to justice than the cramped antidiscrimination principle the Court now embraces.But whether or not that’s the case, Fiss is surely right to conclude that if we read the Equal Protection Clause as prohibiting the subjugation of groups of people into pariah status, then the provisions of the Welfare Reform Act denying immigrants access to basic welfare and social goods are unconstitutional. Fiss’s interpretation of the Clause, and his argument for its application to the laws governing immigrants, is an unorthodox, even dissident reading.The result is not one the Court is likely ever to reach, at least not on the grounds Fiss advocates.Nevertheless, both the interpretation and the result are in my view correct.
Where Fiss goes wrong, I believe, is in coupling this reading of the Fourteenth Amendment with the utterly conventional and orthodox view expressed at the end of his article, to the effect that it is and should be the role of the judiciary to police this constitutional antisubjugation principle against the errant political branches of government.On Fiss’s view, shared by virtually all liberal constitutional scholars, the majority, through its representatives, acts in response to political pressures, and the Court, through the justices, acts so as to ensure that the political will of the people results in laws that are in accordance with the communitarianism, egalitarianism, and general conception of justice at the heart of our constitutional scheme of government.The legislative role is to enact the people’s will, while the Court’s job is to ensure that we “preserve our society as a community of equals,” as envisioned and even mandated by the Constitution.
There are serious problems with this division of constitutional labor, even from the perspective of one who wholeheartedly shares Fiss’s egalitarian commitments.The first is obvious, and strategic: there is next to no chance that the Court will adopt a view of the Fourteenth Amendment that bears even a family resemblance to the one Fiss advocates.The second is legal, or textual: by its own terms, the Fourteenth Amendment’s Section Five envisions congressional rather than judicial enforcement of its promises.A third and deeper problem, however, and the one least often noted, is at once moral and political.It is a problem that has been evident since the beginning of our practice of judicial review, but that tends to be buried with each new wave of righteous, justice-based litigation brought under the majestic clauses of the Fourteenth Amendment–and even more deeply buried when the proposed litigation promises some measure of success. Fiss’s argument–that the Supreme Court should invalidate scores of state and federal laws impeding immigrants’ access to social goods, on the grounds, basically, of these laws’ inegalitarianism–indirectly highlights what the moral costs of its success might be.
By delegating to the Court the work of ensuring compliance with constitutional norms, Fiss effectively divests the people and their representatives of constitutional obligations and responsibilities:we can be constitutionally reckless, he seems to be saying, if the court is vigilant. To be sure, this divestiture would hardly matter if the Constitution were nothing but a string of procedural, structural, nuts-and-bolts legalistic regulations. And it would matter even lessif the Constitution were merely a tool of the propertied classes, as is sometimes claimed. But these constrained conceptions do not accord with the Constitution as Fiss and his fellow liberal constitutionalists read it. For them, the Constitution is the expression and embodiment of our egalitarian and communitarian better selves: It defines and imposes our defining conception of social justice–at once liberal and egalitarian, respectful of individuals and mindful of our communitarian natures–and it embodies, expresses, and enforces our political morality. Yet Fiss, in his focus on the Court’s constitutional responsibility, overlooks the people’s responsibility for moral governance. His implicit message seems to be that our politics need not be constrained by moral ideals, aspirations, or conceptions of justice, so long as our higher law and the Court that interprets it are.
There is something deeply wrong–and, I submit, deeply illiberal–about this conception of politics. Our politics, and not just our law, should be informed by a moral responsibility not to create pariahs, or allow a permanent underclass to develop, or to permit lower castes to live among us. It may be, as Fiss insists, the role of the apolitical Court, acting “above the [political] fray,” to ensure that the “majority” does not unduly subjugate an already downtrodden group of people. But if the legal imperative for this moral constraint stems from the Constitution, and especially from the Fourteenth Amendment (which directs Congress, not the courts, to enact laws ensuring compliance with its grand promises) then it is imperative that the majority and their representatives, acting “in the fray,” come to an appreciation of the moral and constitutional constraints upon it. If the Constitution says what Fiss thinks it says (and I believe it does) then the audience for his interpretive argument must be the people, not the courts.
Liberal constitutionalists perversely insist on a division of labor that imagines the Court as societal super-ego, voice of reason, or moral conscience, whose peculiar job is to constrain an out-of-control majoritarian political process motivated by irrational and often hateful passions. We should worry that this very image might undercut rather than bolster the slim chance that our political lives and choices might one day be informed by the very egalitarian and communitarian commitments which Owen Fiss, to his great credit, so clearly holds.