Practical Equality and the Limits of Second Best Strategies for Justice

By Tolson, Franita | Constitutional Commentary, Fall 2019 | Go to article overview

Practical Equality and the Limits of Second Best Strategies for Justice


Tolson, Franita, 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).

In Practical Equality: Forging Justice in a Divided Nation, Professor Robert Tsai argues that doing the hard work of equality sometimes requires the use of doctrines that are not expressly equality-based but can achieve the same goals as equality doctrine. These "second-order" doctrines, which include fair play, reasonableness, anti-cruelty, and free speech, are vehicles through which equality can be vindicated without triggering the controversy that often walks hand in hand with the quest for equal treatment. Even for those of us who believe in making overt demands for equality, we do not always agree on the proper means of achieving these goals. Moreover, these demands can complicate the struggle to protect equality norms when they are under assault, as they are now; second order doctrines are important alternatives when the goal is to preserve gains as opposed to breaking down existing barriers. Professor Tsai's book is not only important, but it lays out a much-needed path forward for achieving equality in challenging times. For all of its attributes, however, the book also raises important questions about the circumstances in which the demand for equality must be overt, express, and uncompromising. While second-order doctrines are an important part of any strategy seeking to create a more just society, it is vital that they do not replace first-order calls for equality and justice. Equality must be both practical and radical.

PART I: EQUALITY BY ANY MEANS NECESSARY?

There are many wonderful themes and concepts in Practical Equality around which even those with diametrically opposed views of equality can coalesce. The book does an excellent job of tying equality to broader notions of dignity and fairness underlying the second-order doctrines that it advocates, illustrating that its themes are not about progressive ideals but universal ones. Liberal organizations like the NAACP get similar treatment in the book as the conservative Lambs Chapel, showing how reliance on doctrines other than equality can transcend the differences that tend to prevent agreement about what equal treatment requires (p. 195). For this reason, the use of second-order doctrines to achieve the goals of equality is attractive--it avoids antagonizing opponents, seeking to find common ground where none existed before, and it does so all in the name of justice.

For example, the doctrine of fair play resolved difficult cases when courts were reluctant to commit to a broad reading of the Fourteenth Amendment in most contexts. In criminal justice cases, in particular, fair play has served to deliver justice to African-Americans accused of heinous crimes who confess only because of ill treatment at the hands of the police. While the equality implications of these cases might be clear to those who are committed to its terms, even courts unsympathetic to the plight of African-Americans in that space were forced to confront the fundamental injustice of coerced confessions (pp. 51-60). Because fair play is, according to Professor Tsai, based on "widely shared intuitions about how crucial decisions should be made," it is, in some ways, more attractive than resolving cases by defining the scope of equal protection(pp. 67-68). (3) Instead, it is far easier to determine what fair play prohibits. Wider reliance on notions of fair play could have special resonance in the death penalty context, where equality arguments have explicitly failed (pp. 80-92). As Professor Tsai argues, statistics show that people are less in favor of criminal justice reform where they associate the criminal justice system with blackness, even while conceding that the challenged policy is cruel (pp. 80-92). (4) Being aggressive in policing cruelty through fair play (and also through anti-cruelty doctrine) can do some of the work that equality doctrine would otherwise be tasked with in this context. …

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