Michael Perry and Disproportionate Racial Impact
17 Pages Posted: 14 Nov 2022 Last revised: 15 Nov 2022
Date Written: November 11, 2022
I am delighted to be contributing to this festschrift honoring Michael Perry. He and I go back a long way. He may not remember how far back, but I do. In 1980, when Michael was a faculty member at Ohio State’s law school, he organized a symposium on John Ely’s recent Democracy and Distrust, and he invited me to contribute to it, which I did. (The contributions were published in the 1981 volume of the Ohio State Law Journal.) I am not sure Michael knew me then, or why he invited me, but we have known each other and had both an intellectual and personal relationship ever since. Indeed, even as I was writing this, I was looking forward to receiving Michael’s contribution to a symposium I had organized and, COVID willing, to seeing him in person at that symposium. (Unfortunately, family matters prevented him from coming.)
I am assuming that most of the contributors to this festschrift will focus their remarks on Michael’s human rights literature. After all, international human rights, and how they should bear on constitutional adjudications in the United States, has been Michael’s preoccupation for many years and the subject of his many books. And surely it is a topic, or set of topics, that merits the attention I expect it to receive in this festschrift. Nonetheless, human rights and how they relate to the U.S. Constitution will not be my focus. I intend to look at Michael’s early work, and in particular, his work on equal protection. I think some of what Michael wrote on this topic was misguided. But I focus on it, not to find a bone to pick somewhere in Michael’s impressive body of work, but because his error in that early work has an analogue in today’s political discourse, which makes that error of many years past of contemporary importance.
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