The Hidden Costs of Dissent
34 Constitutional Commentary 489 (2019)
18 Pages Posted: 15 Jun 2020 Last revised: 16 Oct 2020
Date Written: January 22, 2020
This essay appears as part of a symposium dedicated to the book, ROBERT L. TSAI, PRACTICAL EQUALITY: FORGING JUSTICE IN A DIVIDED NATION (W.W. Norton 2019), and published in CONSTITUTIONAL COMMENTARY. In it, I jointly respond to two separate review essays by Franita Tolson and Nelson Tebbe. First, I emphasize that the book presents not a comprehensive theory of equality, i.e., what egalitarianism should look like under ideal conditions, but instead an account of egalitarian ethics and a menu of work-arounds that can be useful to promote egalitarian goals under more trying circumstances. Second, as to the concern that over-reliance on second-best solutions could contribute to ongoing oppression, I reply: while such a risk exists, it depends on what is prioritized and how any particular tool is deployed. Reducing material or symbolic forms of inequality immediately should generally be given priority over leaving inequities in place due to inchoate worries about the inherent limitations or potential misuse of legal or political concepts. Third, refraining from using the principle of equality when the risk of validating a tragic outcome is high reduces the possibility of conceptual lock-in. Forbearance leaves space for future creativity. Fourth, as to the worry that bypassing an opportunity to dissent can reduce the acceptability of equality arguments, I reply: the beneficial use of direct equality arguments can encourage others to also make them, but declining to do so doesn't necessary stifle debate. A prominent use of the equality principle to justify a glaring inequity will usually be more damaging to future debate than strategic silence accompanied by a just outcome that can be built upon.
Keywords: constitution, constitutional law, equality, egalitarianism, pragmatism, politics, popular sovereignty, political theory, jurisprudence, legal history
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