The Equality Paradise: Paradoxes of the Law's Power to Advance Equality

Abstract

This paper, written for Texas Wesleyan Law School's Gloucester Conference, ¿Too Pure an Air: Law and the Quest for Freedom, Justice, and Equality,¿ is a brief exploration of a broader project. Every civil rights movement must struggle with how to allocate scarce resources to accomplish the broadest change possible. This paper compares the legal and political strategies of the Black rights movement and the women's rights movement in the United States, comparing both the strategy choices and the results. These two movement followed essentially the same strategies. Where they have attained success and where each has failed demonstrates the limits of American legal structures to effectuate social change. The broader project will be to contrast this history with the gay and lesbian rights movement, which has followed a less legalistic strategy and has arguably had greater success.

Based on this historical evidence, I argue that the greater the power of the legal structure used, the less likely the result will produce substantive change, because high-level legal structures are constrained by the dominant culture. Without some cultural change, lawmaking through courts is not effective and can perpetuate oppression instead. Legislation can be more effective, but is subject to similar limits of culture in its enactment, interpretation, and enforcement. Paradoxically, the broader the legislation in terms of subject matter and the higher the jurisdiction enacting the legislation, the less effective it will be.

Because of these paradoxes of power, The temptation to focus on the most powerful institution, which can offer the staunchest protection and the broadest sweep, in the United States, the Supreme Court and the Constitution, often wins out. This paper seeks to reveal the tradeoff that decision makes.

Keywords: freedom, equality, rights, civil rights, litigation, legislation, cognitive bias, culture, substantive equality, constitution, courts, rights movements, social movements, African-American, Black, Women, gay and lesbian

JEL Classification: J7, K10, K19, K30, K40, K42, K49