To Define is to Limit: Achieving Equality and the Role of the Judiciary
The principle of equality underpins the United States’ judicial system. The Fourteenth Amendment exemplifies this, guaranteeing every citizen equal protection under the law. Though many court cases fundamentally serve to protect equality, disagreements exist over exactly what equality under the law means and how to secure it. Within two landmark Supreme Court cases, Plessy v. Ferguson and Loving v. Virginia, two opposing theories of legal equality emerge. The Plessy majority interprets equality as being generated by acknowledging differences, particularly racial characteristics while the Loving Court views equality as stemming from a firm refusal to place people into definitional boxes. Though these theories contrast with each other, this interaction of Plessy and Loving reveals that the US judicial system’s attempts to define people cannot create equality: they can only limit it.
In Plessy, the majority opinion creates a theory of equality. It claims that distinctions between people based on racial characteristics will always exist, so the Court must function within this unequal world by acknowledging such differences in its writings. Justice Henry Billings Brown, a former Associate Justice of the Supreme Court, states that “the object of the [Fourteenth] Amendment was undoubtedly to enforce the absolute equality of the two races before the law . . . but . . . it could not have been intended to abolish distinctions based on color,” directly asserting that the law perceives differences between people due to innate discriminatory systems built into the fabric of US society.[1] He later proclaims that he “cannot accept” the assumption that “social prejudices can be overcome by legislation”.[2] Through these statements he implies that, since society has a hierarchy based on discrimination, the legal system is also allowed to discriminate because it is incapable of fostering amity between separate groups of people through mere legal mandates. The main theory of equality within the case, therefore, involves bringing the law to citizens at many different levels in society, rather than placing all citizens on the same level before the law.
While interpreting the Constitution with the help of societal context generally fosters progress, the Plessy case directly affected a “separate but equal” doctrine which created more inequality through legalized segregation. Given Justice Brown’s assertion that the government must provide “to each of its citizens equal rights before the law and equal opportunities for improvement and progress,” this result appears counterintuitive.[3] However, the mechanism by which Plessy attempted to defend equality facilitated a caste system because it operated under the assumption that the law views citizens through the same biased lens that general society does. Though the Plessy opinion also reads that “if one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane,” its very determination to separate them makes them unable to fulfill Justice Brown’s view that “if the two races are to meet upon terms of social equality, it must be the result of mutual affinities, a mutual appreciation of each other’s merits, and a voluntary consent of individuals.”[4] The legal—and then societal—distinction between different races prevents them from encountering each other in a way that would allow this creation of social equality illustrated by Brown. Plessy’s separation of different races and direct acknowledgment of differences facilitates a worldview where people are not viewed as equals in any aspect of life.
Harlan’s dissent to Brown’s opinion and the consensus of the Loving Court reveals a new theory of equality: the assumption that all are equal within society allows for more equality. Harlan’s claim that “our Constitution is color-blind . . . and neither knows nor tolerates classes among its citizens” directly responds to Brown’s writing that distinctions exist and can be codified into law because they will exist regardless.[5] The same view of a casteless society presents itself in Loving. This case criticizes Virginia laws by directly quoting their mentions of race within the law, stating that they do not agree that “these statutes, despite their reliance on racial classifications, do not constitute an invidious discrimination based on race.”[6] This presents the crux of the argument: placing citizens into categories based on any sort of uncontrollable characteristic directly contradicts equality because it allows them to be perceived differently by the law. If the Constitution is meant to protect “the principle of equality at the heart of the Fourteenth Amendment,” it simply cannot bring any direct acknowledgment of differences into its interpretation.[7] In Loving, this is affirmed by the statement that the Court “cannot conceive of a valid legislative purpose . . . which makes the color of a person’s skin the test of whether his conduct is a criminal offense”.[8] Loving also describes restricting whom someone can marry “on so unsupportable a basis as . . . racial classifications” as fully unequal, revealing equality to mean a lack of classification and definition under the law.[9] This approach to equality deviates from the approach shown in Plessy but is still rooted in a desire for all citizens to achieve legal equality.
Loving’s construction of equality does not state what specific groups of people are equal under the law. This lack of direct definition results in a far more progressive outcome than in the Plessy decision by allowing equality to be extended to everyone. The Loving case is particularly radical because it contends that racial classifications used to prohibit intermarriage between races are “designed to maintain White Supremacy”.[10] This provocative statement supports the idea that defining people based on external characteristics only serves to draw lines between them, and it can even entrench harmful power structures more firmly. The Loving case champions the notion that defining people based on race correlates with the preservation of racial power structures by implying that people of different races are inherently different (or more maliciously, inferior). From this implication, some might extrapolate that these differences also expose differences in value as human beings. To solve this issue, Loving frees people from society’s restrictive prejudices and allows them to be recognized legally as people with identities and rights beyond race.
The Loving decision resulted in more equality because it freed people from definitions that tied their rights to one unchangeable aspect of identity. Plessy directly acknowledged that “legislation is powerless to eradicate racial instincts or to abolish distinctions based on physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation.”[11] Loving operates within this framework, but rather than trying to create more equality, it simply ignores differences between people and lets society solve issues without judicial intervention. Loving does not force anyone to marry someone of a different race in the name of equality; the case simply states that “the freedom to marry, or not marry, a person of another race . . . cannot be infringed by the State”.[12] This hands-off approach shows that issues of equality cannot effectively be solved by judicial intervention; rather, the judicial system must leave the path to equality as accessible as possible by not imposing barriers to equality in other branches of government. Both cases grasp that equality is affected by social movements and that the role of the judiciary is to step back and facilitate progress, but only Loving manages to actually achieve this goal by operating under a non-definitional policy. These two theories of interpretation are not binaries, though. An inherent trade-off exists in defining what an opinion includes and allowing for ambiguity to expand equality to reach all citizens. Generally, leaning toward a lack of definition facilitates equality more effectively than imposing categorization.
Journeying from equality that is based on divisions to equality built on an ideal of a world without differences, Loving’s drastic step away from Plessy in guaranteeing equal rights without racial caveats created progress integral to building modern society. Today, the legal system no longer explicitly divides us based on race, gender, or sexuality, but our history of oppression and prejudice still haunts us. The national reckoning with and discussion of racism proves that confronting and repairing our past is no longer a judicial issue. Education and conversation provide better anecdotes to these societal plagues than passing legislation. The law cannot force people to like or respect one another—only social movements and willingness to connect with those of different backgrounds can create these bonds (and then too, perhaps not perfectly). Fundamentally, the law does not draw more from society than is already present; it cannot and will never fully contradict natural feelings of people. The judiciary limits, not creates, and we must look beyond the law to find equality.
References
[1]Plessy v. Ferguson, 163 U.S. 537 (1896)
[2]163 U.S. 537 (1896)
[3] Plessy v. Ferguson, 163 U.S. 537 (1896)
[4]163 U.S. 537 (1896)
[5]Plessy v. Ferguson, 163 U.S. 537 (1896)
[6]Loving v. Virginia, 388 U.S. 1 (1967)
[7]388 U.S. 1 (1967)
[8]Ibid.
[9]Ibid.
[10]Ibid.
[11]Plessy v. Ferguson, 163 U.S. 537 (1896)
[12]Loving v. Virginia, 388 U.S. 1 (1967)