Should the Left Dissent?

By Tebbe, Nelson | Constitutional Commentary, Fall 2019 | Go to article overview

Should the Left Dissent?


Tebbe, Nelson, Constitutional Commentary


PRACTICAL EQUALITY: FORGING JUSTICE IN A DIVIDED NATION. By Robert L. Tsai. (1) W. W. Norton & Company, 2019. Pp. 276. $27.95 (Cloth).

I.

When a political community is as polarized as America is today, people on the left often will be unable to protect core principles, such as equal membership, basic liberty, and distributive justice. They will find themselves thwarted by opponents who are unable or unwilling to embrace an egalitarian vision. (And conservatives will face a converse challenge, of course.) This situation is difficult, to say the least. Not only is political polarization unpleasant, but it can impede the functioning of democratic self-governance.

In his creative and beautifully articulated book, Practical Equality: Forging Justice in a Divided Nation, Robert L. Tsai suggests a way forward. To his main question, "[w]hat is to be done to confront injustice when the timing doesn't seem right or the odds are stacked against you?," Tsai responds that egalitarians should pursue "equality by other means" (p. 3). Practical equality describes a method or strategy of embracing second-best solutions when ideal outcomes are unattainable. Constitutional concepts that can approximate equality include procedural due process, rationality review, the prohibition on cruel and unusual punishment, and freedom of expression. Pursing these alternatives is smart strategy, for Tsai, but it is also required by "constitutional duty" or moral obligation (p. 7). Moreover, practical equality can produce consensus, or at least majority support, for an outcome, partly because its techniques do not require a finding of bias on the part of government decisionmakers. (3)

Tsai's first example is President Trump's signature travel ban. The outlines of this story are well known. Soon after he was inaugurated in January of 2017, Trump fulfilled his campaign promise to effectuate a "total and complete shutdown" on Muslim travel to the United States. (4) He signed an executive order that effectively excluded travel into the country by citizens of several Muslim-majority nations, among other measures. (5) Chaos ensued at airports and other ports of entry, lawyers brought challenges, and courts quickly invalidated the executive order. Shortly thereafter, Trump issued a revised ban, which also was quickly invalidated. (6) Courts offered different rationales for these judgments. Some judges held that the travel ban violated immigration statutes, others found violations of due process, and still others decided that Trump had discriminated against Muslims in violation of the Establishment Clause. (7) Ultimately, the Supreme Court upheld the third and final version of the travel ban. (8) Chief Justice Roberts reasoned that the executive's decisions on immigration issues deserved deference, and that the administration's findings were sufficient to satisfy that deferential review, irrespective of any impermissible bias against Muslims that might have motivated Trump, who was the sole lawmaker in this situation. (9)

How should a practical egalitarian handle such a case? Tsai notes that a group of law professors argued that the travel ban was motivated by religious animus and therefore violated the Establishment Clause (p. 10 & n.3). (10) Tsai does not endorse that approach." Instead, he prefers the ruling of the Ninth Circuit, which reasoned that the travel ban violated due process in various ways, such as by altering the rights of green card holders without giving them notice and an opportunity to be heard (pp. 75-76). (12) The Ninth Circuit's decision was "textbook use of alternative means to promote equality" and it was productive because it "repeatedly forced the administration to modify a deeply unequal policy," so that ultimately three countries were dropped from the ban and several exemptions were created (p. 79). Anything more would be too much to ask of courts, Tsai suggests, because judges "can't stop ethnonationalist agendas on their own"--that can only be done through raw politics (p. …

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