The Idea of Group Rights

Legal rights can be possessed by individuals, by natural communities (such as families), and by various forms of voluntary associations (such as businesses, unions, non-profit groups). Individuals may have a right to free speech, families may have a right generally to direct the education and religious upbringing of their children, and associations may have a right to due process.

But much of what might be called “group rights” is really rights of individuals who can be viewed as being part of a group, e.g., the right of an individual not to be discriminated against on grounds of his or her race or gender.

The meaning of that “group membership”, however, may not be clear. Do all black Americans consider themself as belonging to the “group” of “black Americans”? A number of years ago, I inquired of a well-known black scholar whether he would consider holding the Ralph Metcalfe chair, which brings outstanding black scholars to Marquette University for some lectures, and he informed me that, on principle, he does not accept invitations that specifically include race as a qualification. In some sense, he seems not to have wanted to be considered as being in the “group” of “black scholars.”

Do all women consider themselves as belonging to the “group” of “women”? There are many women who have no sense of common cause with the “Women’s Legal Defense Fund” or the “National Organization of Women.”

Do all those who experience same-sex attractions belong to the “gay rights” movement? Some people with a homosexual orientation seek out therapists and support groups to change their sexual attractions (and some of these succeed), and others don’t try to change them, but choose not to act on them.

Color or gender or sexual orientation, by themselves, seem to be among the weaker forms of group identity. The stronger group identity, even in the case of many blacks and women and homosexuals, may actually be a more “intentional” community: the sub-groups of those groups that share a common sense of history, perceived injustices, and programs for achieving certain goals-which not all members of that group may share.

Another complicating factor regarded group rights is time. We do acknowledge certain group bonds over time, notably family ties, which are held to justify the right of parents to leave inheritances to their children. Do these ties over time exist in other cases? If one is a member of a group like “blacks” or “women” or “homosexuals”, what is the relationship between membership in that group today and events that occurred in the past? Is it appropriate to give some benefit, or even preference, to a member of a group today, on the grounds that people treated members of that group badly a century ago? The most plausible case for such benefits would seem to be cases in which they would go, not to just any members of the group, but to those current members of the group that are demonstrably worse-off because of that past discrimination. Such benefits seem very hard to defend, on the other hand, when it is impossible to elucidate any connection between the bad treatment directed against a group in the past and the well-being of current members of the group (as is generally the case regarding women or homosexuals), and especially in the case of currently well-off members of the group-which suggests that group benefits or preferences per se are doubtful. Moreover, when the costs of benefits or preferences to one group fall on current members of past dominant groups who cannot themselves be shown to have benefitted from the previous discrimination by other members of “their group,” and especially on less well-off ones, that too raises serious questions of justice.

Race and ethnicity may be more complicated precisely because they may overlap with the broad category of “culture”, which is enormously complex. (The Oxford English Dictionary definition [5b] of “culture” is: “A particular form or type of intellectual development. Also, the civilization, customs, artistic achievements, etc., of a people, esp. at a certain stage of its development or history.”) Membership in or participation in a “culture” can be quite deliberate or it can be quite involuntary, or both at the same time in various respects. (The complexities are exemplified by people who define themselves as “multiculturalists” and thereby demonstrate their grounding in “Western civilization,” the source of multiculturalism.)

A group of persons who define themselves as sharing in a culture may have rights relative to that cultural identity. For example, ethnic minorities, when they have a distinct language integral to their cultural heritage, may demand rights to preserve their language and culture alongside the nation’s dominant language and culture.

One of the complicating facts about American life is that the nation’s cultural heritage is partly having a mix of cultures. While the nation started out with an overwhelmingly dominant language and culture (English and Protestant), it was unusual in the extent to which it was based on ideas, especially the ideals of liberal democracy, and-despite all the nativism and tensions in our history-it succeeded in assimilating within itself and its own developing “culture” a large number of people from different cultures (albeit the largest group of people assimilated shared European and Christian cultural backgrounds)-both drawing on and modifying various elements of those cultures.

Group Rights and Constitutional Law

But relatively little of what I have been calling “culture” has been implicated in modern Supreme Court constitutional law, with the possible exception of religion jurisprudence. Most of the “group rights” or “cultural pluralism” at issue today has little to do with diverse cultures or civilizations.¹ The area of modern constitutional law the panel is concerned with is primarily discrimination on grounds of race, gender, and sexual orientation.

An Introductory Point

Before I turn to a discussion of constitutional law today, I want to make an important point. I want to say that in a different world-one in which the Supreme Court had not grossly exceeded its constitutional powers and become itself a threat to important rights (group rights or others)-I would write a very different paper on protection of groups and/or cultural pluralism.

I would start with the common good, distinguishing it sharply from “the greatest good of the greatest number,” and I would highlight the essential requirement of government to provide protection for the rights of all citizens, including minorities (that is, in different ways, all of us). I would emphasize the constitutional rights and obligations of legislatures (as well as executives and courts), and the people to whom they are accountable, to pursue the well-being of all citizens without exception, both as individuals and as members of the natural and voluntary groups to which they belong. In particular, I would emphasize the very broad (though not unlimited) power of Congress under the Fourteenth Amendment (section five) to rectify unequal treatment by states of their citizens, by the denial of the equal protection of the law, by refusal to provide to all their citizens general rights of legal procedure, or by depriving citizens’ of their just privileges and immunities (as described by Justice Bushrod Washington in Corfield v. Coryell, noting, however, his recognition of the right of government to regulate them reasonably).

That is, I would approach the topic of constitutional protection of rights without a misplaced, almost exclusive, emphasis on the judicial protection of constitutional rights, a preoccupation that is the result of the unconstitutional expansion of judicial review in the last century. I would also vigorously condemn the resultant attitude that permits some of our legislators, as in the recent debate on campaign finance reform, simply to abdicate discussion of issues of constitutional right by turning them over to the judiciary.

That would be a very different discussion, which I would much prefer: one in which I could advance more positive views on the protection of rights (group and otherwise) and the importance of democratic deliberation upon such issues, than I can in the context of our contemporary constitutionalism.

Current Discussions and Background Constitutional Principles

Most of the current discussion of equal protection involves ways in which it can be used to prohibit discrimination on grounds of race, gender, and sexual orientation. In these areas I believe that modern courts have gone well beyond their legitimate constitutional authority to exercise the power of judicial review, with each step (from race to gender, and gender to sexual orientation) constituting greater movement away from the Constitution and sound constitutional policy.²

Let me begin by indicating what I consider to be the basic “background” principle of constitutional law that I would apply in this area. First, and most basically, the guarantee of equal protection of the laws should be understood as the requirement that government should enforce laws for security of person and property (equal “protection”) equally for all citizens. That original core meaning of equal protection has been expanded by precedents to include a broad guarantee of similar treatment for similarly situated people, which is highly problematic, since, as Justice Rehnquist argued in his dissent in Trimble v. Gordon, it makes the equal protection clause into a “cat o’ nine tails to be kept in the judicial closet as a threat to legislatures which may, in the view of the judiciary, get out of hand and pass ‘arbitrary’, ‘illogical’, and ‘unreasonable’ laws.”³ While this expansion of the meaning of the clause is probably irreversible, it should be constrained by employing a deferential rational basis test to apply it. In my view, there is no ground in the Constitution anywhere for any kind of formal “strict scrutiny”-with its shift from a presumption of constitutionality of legislation to a heavy burden on government to justify its action-which is simply a way of shifting power from legislatures to reviewing courts, contrary to the requirement of “legislative deference” for judges in a democratic government.

With respect to race, gender, and sexual orientation, I would apply the following principles:

I. Racial discrimination (on grounds of color) was at the heart of the Reconstruction Amendments, and so it has a special and unique status in constitutional prohibition of discrimination. Although the original meaning of the Fourteenth Amendment was narrower than we think of it-its authors clearly did not intend to outlaw all racial discrimination (the Fifteenth Amendment being the most obvious proof)-there is a broad and enduring cultural consensus against racism that supports deference to precedents that give it a wider reading.

Although racial classifications are not per se irrational-hiring black cops on the grounds that they may be more effective in a black residential area in some circumstances is not only not irrational, but simply sensible-they generally operate under a burden of meeting a real (not nominal) “rational basis” test. While the presumption is still on the challenger to the law, the original common-sense meaning of strict scrutiny applies-not a test imposing a substantial burden of proof on government, but simply an observation that judges will examine such classifications more closely, in light of the history of racial prejudice behind slavery, segregation, and other racial discrimination

II. Gender discrimination is more complicated than race, because there are deeper, unresolved questions of gender roles. Despite virtually universal agreement that gender roles in the past were much too rigid (which provides support for some deference to precedents that have broadened the Fourteenth Amendment to prohibit some gender classifications), there is still significant disagreement in society about whether gender is ever a reasonable ground for different treatment in the law (as the defeat of the ERA indicated). Moreover, the single constitutional provision dealing per se with gender concerns only voting. Perhaps most importantly, today women exercise untrammeled voting rights and are, strictly speaking, a majority rather than a minority. Under these circumstances, judicial review of gender issues should be quite limited: gender classifications in the law need only meet a deferential rational basis test, leaving it to the political process to sort out evolving social mores.

III. Sexual orientation is a relatively recent legal category, which is designed to include various forms of sexuality and sexual behaviors without making normative distinctions among them. In fact, it is probably fair to say that this category frames the question so as to deny the appropriateness of any such judgments. Most Americans, historically-and probably most Americans today-have believed that there is a normative sexual orientation-heterosexuality-that provides the natural basis for the family, the essential cell in human society. In the past they were likely to regard other subcategories of sexuality, such as homosexuality, very harshly. Today, happily, they are more likely to be sympathetic toward the plight of such minorities, and especially the unjust treatment many of them have received and still receive. But many of them do still regard heterosexuality as normative, and other subcategories as afflictions, and I think this is a reasonable position (in fact, I think it is the right understanding). Sexual orientation is therefore not itself a proper basis for a constitutional guarantee of non-discrimination, though, of course, people of all sexual orientations have rights (e.g., to withhold police protection from homosexuals would be a denial of the “equal protection” of the laws). Refusal to permit gay marriage, and other public policy measures based on a critical moral stance on homosexual acts (e.g., in the educational sphere), are therefore sound and legitimate decisions of the ordinary democratic process.

This is not objectionable on the grounds that it implies that society has less concern for the well-being of individuals with same-sex attractions; in fact, such legislation itself would reflect, not only a desire to defend the heterosexual family as an essential element of the common good, but also a desire to help homosexuals in various ways, much as laws reflecting a negative judgment of alcoholism reflect a genuine equal concern and respect for alcoholics themselves.⁴

Putative Consequences of Sound Constitutional Principles

Were these basic background principles of constitutional law implemented, there would be much less judicial review, and efforts to expand judicial protection of minorities would be undermined. On some accounts, this would have horrible consequences, leading to wholesale deprivation of fundamental constitutional rights of minorities. But I don’t think that would be the case. The various groups seeking heightened judicial protection (e.g., black civil rights groups, feminists, homosexual activists) would generally be able to do a successful job of protecting themselves from the worst sorts of harm (especially defending security of person and property) in the ordinary political and judicial processes. The analysis of Federalist No. 10 is as powerful now as it was in 1788: the tremendous diversity of interests in the United States (much greater now than then) makes it highly unlikely that a majority will successfully combine to work serious sustained injustice upon minority groups. The main exception to this principle in U.S. history is the exception that proves the rule: black Americans faced deep injustices before and after slavery because they were deprived of the effective right to vote, and therefore did not have a share in the bargaining and coalition-forming processes in American politics. Blacks, women, and homosexuals today do have that right to vote and exercise a significant amount of political power. Very intense minorities can usually exercise effective veto power over hostile legislation (or its enforcement), and these groups are intense minorities.

The constellation of political realities described by Federalist No. 10 may also limit the power of these groups to advance their agendas through the political process, of course. Black leaders and feminists who want affirmative action may not get it (though they may get some), and homosexuals may not get gay marriage (though they may get it, at least in some jurisdictions, and approximations of it, such as civil unions, in others) and lose on DOMA. It is even possible that the recently introduced Federal Marriage Amendment-declaring that “Marriage in the United States shall consist only of the union of a man and a woman”-may be passed. But that is just to say that they are subject, like many others, to the limitations of being a minority in a democracy with lots of different opinions, passions, and interests.

There would remain, also, of course, genuine particular instances of injustices, and certainly the indignation and resentment in response to these is understandable. No set of institutions or policies can come close to eliminating all injustice. And so blacks, women, and homosexuals would, unfortunately, as they have on so many occasions, sometimes face unfair discrimination that is difficult to get at through ordinary guarantees of equality (such as equal opportunity race and gender anti-discrimination laws, in the case of blacks and women, and more general anti-discrimination principles in the case of homosexuals). I do not deny these, but at the same time I think that much of this injustice is not amenable to legal regulation, without creating other injustices. And so, while we should work to minimize such instances, we should recognize the limits of law, and, in particular, of judicially created law.

The Present Situation

But constitutional law is not likely to be controlled by the principles I have set forth. The more powerful forces in the law today are those related to elite intellectual opinion and its influence (disproportionate, though not unopposed) in the legal process. Justice Scalia described this well in Romer v. Evans:

When the Court takes sides in the culture wars, it tends to be with the knights rather than the villeins-and more specifically with the Templars, reflecting the views and values of the lawyer class from which the Court's Members are drawn. How that class feels about homosexuality will be evident to anyone who wishes to interview job applicants at virtually any of the Nation's law schools. The interviewer may refuse to offer a job because the applicant is a Republican; because he is an adulterer; because he went to the wrong prep school or belongs to the wrong country club; because he eats snails; because he is a womanizer; because she wears real-animal fur; or even because he hates the Chicago Cubs. But if the interviewer should wish not to be an associate or partner of an applicant because he disapproves of the applicant's homosexuality, then he will have violated the pledge which the Association of American Law Schools requires all its member schools to exact from job interviewers: "assurance of the employer's willingness" to hire homosexuals . . . This law-school view of what "prejudices" must be stamped out may be contrasted with the more plebeian attitudes that apparently still prevail in the United States Congress, which has been unresponsive to repeated attempts to extend to homosexuals the protections of federal civil rights laws . . .⁵

But, on the other hand, whatever the deficiencies of the plebeians, they are supposed to have their votes in a democracy, and those democratic votes should control public policy, unless they violate the U.S. Constitution-the actual U.S. Constitution, not one that is made up by judges as they go along. Judges may or may not improve it, as they re-write it, but that is not the standard of judicial power in a democracy, or at least it shouldn’t be.

And, moreover, there is at least room to doubt whether the Templars will always do a good job of re-writing the Constitution. There are many ways in which elite intellectual opinions are dubious today, as they were in the Gilded Age, especially on the culture war issues of religion and morality, and with regard to these issues I’m inclined to agree that we’d be better off being ruled by a random sample of almost any American telephone directory rather than by elites. Unsurprisingly, elites don’t generally agree with this assessment. And so they have approved of and helped to defend the process by judges have become a particularly useful vehicle for circumventing “unenlightened” plebeian opinion.

The founders wrote the Constitution with an assumption that judges would have very limited power (power tied to genuine interpretation of law), and therefore did not put in place many checks on judicial power. That assumption, given the development of modern constitutional law-for example, the expansion of the equal protection clause, as well as substantive due process and a transmogrified Ninth Amendment)-is no longer accurate, and so the original checks on judicial power have turned out to be woefully inadequate.

Constitutional law is regarded by the plebeians as a rather arcane field beyond their ken (as it typically is), and therefore they exert themselves to overturn judicial decisions (which requires an extraordinary exertion) only rarely, when the courts incautiously fly in the face of intense sustained majoritarian opinions. Exercised more cautiously-not too often, and in limited areas, where majority opinion is less intense-the odds are low that the plebeians will successfully counter the Templars.

And that is why the use of judicial power to advance the protection of groups identified by elite intellectuals as specially in need of judicial protection-e.g., blacks, women, and homosexuals-is the likely future direction of constitutional law, despite the fact that, politically and socially, it is getting less necessary all the time.

Less Favored “Groups”

On the other hand, there are other minorities or cultural groups in American society that don’t receive the same kind of attention and support from the Templars. In fact, judges will not only NOT protect them, but will go out of their way to frustrate the use of democratic processes to protect them.

For example, in the Supreme Court case striking down a Louisiana law mandating the teaching of creation-science when evolution was taught in public schools, the Court seems to have been completely oblivious to what the teaching of evolution in the public schools entailed for fundamentalist families (i.e., their children being taught that their religious views are wrong). One doesn’t have to be a creationist to be concerned about this curtailing of parental rights in the religious upbringing of their children. But the Court didn’t even consider that the purpose of the law might be, not the offensive propagation of a religious doctrine, but the defensive vindication of free exercise rights.⁶

Gun-owners are another group that has not exactly qualified for a great deal of support from legal elites and the judiciary. (And this is arguably not just a right of isolated individuals, but a right of what is very much a genuine sub-community of Americans-if you don’t think so, go to a gun show some day.). There is, of course, considerable disagreement about the scope and purpose of the Second Amendment, but if judges were more sympathetic to gun rights, whatever ambiguity or uncertainty there might be in that provision would pose an insignificant obstacle to expanding legal protection for them. There is certainly more support for gun rights in the Constitution, no matter how you read it, than for privacy rights.

Another group that doesn’t qualify for heightened judicial protection is the unborn. John Hart Ely’s observation remains well-taken: “I’m not sure I’d know a discrete and insular minority if I saw one, but confronted with a multiple choice question requiring me to designate (a) women or (b) fetuses as one, I’d expect no credit for the former answer.”⁷ Stenberg v. Carhart,⁸ which struck down attempts to forbid a particularly gruesome form of late-term abortion, shows how far the Knights and Templars are willing to go to defend the rights of a favored “group” of theirs-that is, the “rights of women”, many of whom are appalled by this procedure-against the “threats” posed by another group-“the unborn.” (Of course, the unborn are not in a position to “organize” and defend their interests; nor were the handicapped newborns like the ones at issue in Bowen v. American Hospital Association⁹).

I recently asked a well-known national reporter who covers the Supreme Court to characterize the present Court, and the answer I received was that it is “mainstream.” I asked whether striking down partial-birth abortion prohibitions was “mainstream,” expecting to hear the at least somewhat plausible response that Stenberg was an exceptional or unusual decision. Instead, I was amazed to be told that the decision was a “mainstream” decision. Despite polls and Congressional votes suggesting that overwhelming majorities of Americans-recognizing such abortions for what they are, namely, infanticide-support such limits, apparently this good representative of the Knights was casually confident that what was mainstream in the news office was mainstream in the larger society. And being “mainstream” among the Knights, not the Plebeians, is all too often what really counts, if you want the protection of courts.

Not too long ago-before the resurrection of the takings clause-I would have added that property owners get pretty short shrift from the judiciary. That’s less so now, since conservatives have found that they too can take particular constitutional provisions, erect them into vague general principles, and then have the Court balance various opposing interests to decide whether legislation passes muster with it.¹⁰

The point here is not that the Court should expand its intervention into politics to defend a wider range of groups. I do think the Constitution provides some measure of protection to religious groups, to gun-owners, and to property owners, and certainly permits states to defend the unborn. But I am not so much concerned that particular groups do or don’t get their slice of the pie as I am that the Court is doing the slicing-and it’s not clear where the principles for divvying up the pie come from, other than its own particular predilections.

Conclusion

The courts have an important role to play in defending rights, both of individuals and groups. Were the Court to adopt a stance, like the one I suggest, that would result in fewer laws being struck down, it would still impose some limits on democratic majorities-the ones imposed by the Constitution, fairly (and not “open-endedly”) interpreted-in the name of minority rights.¹¹ It would also, in ways that current constitutional law too often fails to do, prevent the courts from themselves violating one of the central principles of the Constitution: the right of the people to govern themselves.

1. I put American Indians to the side as a special and complicated category, since they have a unique and very anomalous constitutional status as “quasi-nations” within a nation.
2. The broad principles of constitutional law that shape my approach are discussed in The Rise of Modern Judicial Review rev. ed. (Rowman and Littlefield, 1994), Judicial Activism rev. ed. (Rowman and Littlefield, 1997), and How to Read the Constitution (Rowman and Littlefield, 1996).
3. Justice Rehnquist, dissenting in Trimble v. Gordon 430 U.S. 762, at 777 (1976).
4. On the issue of equal concern, see my response to Joseph Raz in Natural Law, Liberalism, and Morality (Oxford University Press, 1996), chap. 7, and on the ways in which laws based on traditional morality would reflect that concern see my “Homosexuality in American Public Life” in Same-Sex Matters (Spence Publishing Co, 2000), chap. 1.
5. 517 U.S. 652-53 (1996).
6. The Court’s decision in Edwards v. Aguillard reflected the same impulse as the work of some contemporary political theorists who urge curtailment of parental educational rights in the name of inculcating “liberal” principles (though the Court did not go as far as some of them would). See, for example, Stephen Macedo Diversity and Distrust (Harvard University Press, 2000), and my review of it in the American Journal of Jurisprudence (2001).
For the record, I don’t think the law passed in Louisiana was the right way to deal with the free exercise problem. Equal educational opportunity in the form of school vouchers is.
7. Cited in Gunther Constitutional Law, 12th Ed.(Foundation Press, 1991), p. 516, n. 6.
8. 530 U.S. 914 (2000).
9. 476 U.S. 610 (1986).
10. See, for example, Dolan v. Tigard, where the Court engages in pretty much the same sort of balancing and policymaking that conservatives have long criticized liberal judges for doing. The takings clause-and the contract clause-do provide some genuine protection for property owners (and Lucas v. South Carolina Coastal Council is an example of an effort by Scalia to vindicate these rights, without adopting the typical forms of modern judicial review. But the general thrust of contemporary takings law looks just like the use of vague generalities requiring judicial “specification” that modern judges have used in so many other areas of constitutional law, usually for liberal policy purposes.
11. As Charles Black pointed out, in The People and the Court (Prentice-Hall, 1960), real assessment of the efficacy of judicial review would consider the laws that never had to be struck down because the threat of judicial review prevented them from being enacted in the first place.