From Protection to Empowerment

Abstract

To those alarmed by the current state of the Court and its jurisprudence, Jack Balkin’s The Cycles of Constitutional Time sounds a hopeful note—this too shall pass: the current regime, the constitutional rot, the polarization. This Essay proposes an addition to the list of things that will hopefully pass away— the minority protection model of rights jurisprudence. The minority protection model grew out of American apartheid at a time when being Black was the trigger for oppression and the wholesale denial of citizenship. In contrast, this Essay notes that we are now living in a time when denials of citizenship are partial and when oppression and privilege intersect in the bodies of the traditionally marginalized as well as the traditionally privileged. This Essay discusses how this relative oppression and “hybrid intersectionality” have caused modern rights protection to turn on subjective evaluations of the salience of a given characteristic rather than on objective marginalization. It argues that modern rights protection now depends on power as much as need—regardless of whether one uses the liberal or conservative iteration of the minority protection model.

This Essay seeks to explain this shift from protection to political power in terms of jurisprudential tribalism, in which jurists’ desires for peer group affirmation dictates, often unconsciously, their understandings of which characteristics are salient and warrant protection in a conflict. It uses the opinions and nonanswer of Masterpiece Cakeshop to illustrate the challenges of hybrid intersectionality and the influence of the Justices’ tribal affiliations on their evaluations of which rights are implicated in a case. This Essay concludes by calling for a shift in rights jurisprudence from a focus on minority protection to a focus on minority power sharing, noting that a framework of empowerment is better able to engage intersectional identities and combat jurisprudential tribalism.

Keywords: Minority Protection Model, Rights Jurisprudence, American Apartheid, Citizenship, Marginalization, Hybrid Intersectionality, Minority Power Sharing, Empowerment, Identity, Tribalism