In 1866, the United States added the Fourteenth Amendment to the Constitution, guaranteeing each citizen “equal protection of the laws.” Exactly one hundred years later the Court addressed how to understand the clause in changing times. Harper v. Virginia State Board of Elections, 383 U.S. 663 said:

"In determining what lines are unconstitutionally discriminatory, we have never been confined to historical notions of equality. Notions of what constitutes equal treatment for the purposes of the Equal Protection Clause do change."

Loving v. Virginia, 388 U.S. 1, was more specific when the Court said, “The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination.” (Emphasis added). But how will courts recognize “invidious racial discrimination?” And how should they attempt to eliminate it? Unfortunately, courts have avoided substantive answers to those questions. Instead, they use what Felix Cohen termed “transcendental nonsense,” avoiding difficult questions of equality and race while telling a mythical story about our society.

The hollowness of judicial reasoning on questions of equal protection is most clear in the requirement to show “purposeful intent,” and the wide acceptance of most “race-neutral” statutes. In Washington v. Davis, 426 U.S. 229, the Court said, “a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose.” A significant disproportionate impact across races, without clear discriminatory purpose, does not violate the Constitution’s promise of equal protection. This analysis relies heavily on a subjective (and unknown) mental state of the lawmaker and ignores the subtlety with which discrimination occurs. Consider the perspective of Holmes, who wrote “If you want to know the law and nothing else, you must look at it as a bad man.” The United States Supreme Court tells “the bad man” in the legislature that if he wishes to discriminate, he is only required to be unclear about his intentions.

Such absurdity only touches the surface of transcendental nonsense concerning equal protection. In his essay, “Transcendental Nonsense and the Functional Approach,” Felix Cohen criticized the abstract terms courts used to eschew difficult questions in favor of circular reasoning. He said:

“In every field of law we should find peculiar concepts which are not defined either in terms of empirical fact or in terms of ethics but which are used to answer empirical and ethical questions alike, and thus bar the way to intelligent investigation of social fact and social policy.”

Examining questions of equal protection, we ask first, “what violates the Equal Protection Clause?” The Supreme Court answers by saying “any law or policy with purposeful discrimination.” Because purposeful discrimination involves an internal mental state, however, we must ask a second question. “How can we identify a discriminating purpose?” There is no answer based in any empirical or ethical analysis, no actual standard to measure against, which means that a court decides whatever it wants.

The troubling results of this method are on display in McClesky v. Kemp, 481 U.S. 279. McClesky, a black defendant sentenced to death, provided the Supreme Court with a study which revealed that prosecutors sought (and were granted) the death penalty more often in cases with black defendants, particularly when the victim was white. The Court found that such trends did not prove a violation of the Equal Protection Clause. McClesky could not prove “that either the state or the prosecutor acted with discriminatory intent.” The study controlled for over 230 non-racial variables, but that was not enough to convince the Court. The problem for McClesky was that “discriminatory intent” is defined in neither ethical nor empirical terms. No amount of empirical evidence could have helped.

The reason the courts act this way, however, is not necessarily based in their own racial biases. Rather, it is judicial cowardice, a way to avoid the reality and difficult questions that our society and legal systems should be addressing. The courts alone cannot give racial minorities equal protection in this country. Psychological studies reveal racial biases in people who were not even aware of their own prejudice (See: Project Implicit). Can the courts outlaw unknown prejudice? Black, Hispanic and Native American children live in poverty at nearly three times the rate of white children (Poverty Rates). Can the courts redistribute wealth? Should they? Public schools get significant funding from local property taxes (See page 2), increasing the likelihood that children in poverty-stricken areas receive substandard education. Are the courts willing to tackle these kinds of problems? It is not only clear and purposeful discriminatory acts that deny racial minorities equal protection. It is the very structure of our society that denies them fair economic opportunities and the ingrained biases of others that continue invidious discrimination, with or without intent.

The Supreme Court almost realizes this in McClesky, but it quickly backpedaled away. It said:

“McClesky’s claim, taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system… If we accepted McClesky? ’s claim that racial bias has impermissibly tainted the capital sentencing decision, we could soon be faced with similar claims as to other types of penalty.”

The Justices are not oblivious to reality. Perhaps it’s not that they are too skeptical to believe McClesky, but that they are too frightened to. To believe him is to recognize that we fall far short of our constitutional promises, and fixing the problem will require a complete restructuring of how we think about and carry out “justice.” It is easier not to address the question of equality, whether it’s possible, realistic, or even (at some levels) desirable. It is easier to tell a story that discrimination isn’t pervasive, that this is the land of opportunity, that we live in harmony and that everyone gets a fair chance. We tell a story where the law protects everyone equally. It might not be a true story, but it makes people feel good. Well, except people like McClesky. It kills people like him.

-- ChristopherBuerger - 04 Apr 2008

This story sucks! Tell me something with a happy ending.

(On a serious note, that quote from McClesky? really stood out to me as well. I was planning on writing my paper on it, but changed my mind last minute. That is a good thing, because you did a better job than I could have done. Excellent paper!)

-- JosephMacias - 05 Apr 2008