Academic journal article Constitutional Commentary

The Hidden Costs of Dissent

Academic journal article Constitutional Commentary

The Hidden Costs of Dissent

Article excerpt

PRACTICAL EQUALITY: FORGING JUSTICE IN A DIVIDED NATION. By Robert L. Tsai. W. W. Norton & Company, 2019. Pp. 276. $27.95 (Cloth).

It's not every day an author is fortunate enough to have such accomplished scholars and committed egalitarians engage so thoughtfully with his ideas, so I wish to begin by thanking Professors Franita Tolson and Nelson Tebbe for engaging with the arguments in Practical Equality. Each took the time to separately review the book, but for reasons of efficiency I'll combine my response. (2)

Both Tolson and Tebbe believe, as I do, in a more robust theory of equality than the thin gruel that has emerged from the Supreme Court's jurisprudence. Indeed, they are way ahead of me in articulating compelling normative visions of a just and equal society. (3) Yet they also see, as I do, that thicker accounts of equality--and most rights generally--won't find much traction before the High Court any time soon. Thus, we share the sense that a supplemental theory might be necessary to accompany our preferred ideal theory of equality.

Practical Equality strives to do just that, by coming up with an approach that's compatible with most theories of equality, while helping decisionmakers to sidestep troublesome pitfalls that more often than not lead to indecision and the reinforcement of unjust conditions. In that sense, the book offers not a comprehensive account of equality, i.e., what an egalitarian society should look like in the best of worlds, but instead the description of an egalitarian ethic and a set of work-arounds, built on past experiences, that can be used in the deeply flawed circumstances that we often find ourselves.

I'm grateful both reviewers see "significant power" (4) in the approach I have outlined, which holds that embattled egalitarians can, and sometimes should, look for ways to do the work of equality by other means when they run into major roadblocks. These second-order concepts--many of which tie "equality to broader notions of dignity and fairness" (5)--can, as Tolson says, "preserve gains" as well as "find common ground where none existed before... all in the name of justice." (6) Doing the work of practical egalitarianism isn't about reconciliation or enforcing norms of civility; rather, it's about finding people where they are ideologically and forging a series of compromises both big and small, in as many different ways as possible, to advance the goals of equality.

Because Tolson and Tebbe start out as steadfast egalitarians, most of their concerns about my approach have to do with settling for too little. That is to say, they worry that when people move to pursue an alternative remedy, they might be either leaving winning equality arguments on the table or foreclosing the possibility of making broader equality arguments in the future. I want to spend some time trying to allay those concerns.

There's no doubt the American tradition of dissent is compelling. But there are also hidden costs associated with dissenting if there is a real chance of reaching an accord that can reduce the unequal burdens faced by someone or some group. Making tradeoffs between possible solutions is always difficult, for they entail choosing which kinds of arguments to invest in and which ones to bypass. More resources put into one kind of argument means fewer resources for another kind of argument. But it's not just the availability of arguments in the ecosystem we should care about; we should also care about avoiding terrible, demoralizing losses, and reducing inequities in ways that can build momentum for future progress.

Tolson acknowledges the importance of second-order preferences and strategies when it comes to doing the work of equality, (7) but thinks that there remain circumstances in which "equality must be overt, express, and uncompromising." She says equality has to have the capacity to be "both practical and radical." (8) I heartily agree.

So, what are the circumstances in which demands for equality must remain explicit and exacting? …

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