Equal Law in an Unequal World
ABSTRACT: The moral ideal of the rule of law is a basic principle of constitutional legitimacy, embodied in U.S. law in the Due Process and Equal Protection Clauses. Many scholars, however, have worried that the rule-of-law requirement that the laws be general—ordinarily interpreted as a command of “formal equality”—forbids states from pursuing genuine (“substantive”) equality, particularly between groups divided by lines of social hierarchy. They have similar worries about the Equal Protection Clause.
In this Article, I aim to put those worries to rest. First, I show that the formal equality interpretation of the rule of law (and of equal protection) is logically incoherent. Then, drawing on a novel account of how to determine the expressive meaning of a law, I show that not only are the rule of law and equal protection compatible with egalitarian justice, but that they positively demand at least a basic level of egalitarian justice, in the form of the command to eliminate social hierarchies embedded in the law. From this, I conclude that the legal ideal of the rule of law contributes to, rather than threatens, critical projects aimed at the elimination of social hierarchy. Political radicals, associated in the law with, inter alia, Marxism, feminism, critical legal studies, critical race studies, and other intellectual movements, have long been skeptical of the legal ideals traditionally associated with liberalism. This Article suggests that they should learn to love the rule of law.