Subordination and the Fortuity of Our Circumstances

Abstract

The anti-subordination principle exists at the margins of equality law. This article seeks to revive the anti-subordination principle by taking a fresh look at its structure and underlying justification. First, the article provides an account of the harm of subordination that focuses on one's position in society, rejecting the focus on groups popular in the existing anti-subordination literature. Second, it argues for a theory of state liability that goes beyond both the existing state action doctrine of the Equal Protection Clause and the failure to protect doctrine most associated with Charles Black. The article argues instead that the anti-subordination principle mandates affirmative action due solely to the existence of subordination, regardless of its causes. Third, the affirmative action required by the anti-subordination principle requires preferential treatment that burdens innocent persons. Rather than defend affirmative action on past discrimination or diversity grounds, the article argues that these sacrifices are justified by the arbitrary nature, or fortuity, of the circumstances into which we are born. Unlike John Rawls and other philosophers who have recognized this fortuity, but have argued that it only implicates what persons are entitled to, the article instead argues that this fortuity provides the basis for a solidarity with those born into subordinated positions. Because anyone could have occupied positions of subordination but for the accident of birth, we all have reason to make reasonable sacrifices to end subordination.

Keywords: subordination, discrimination, affirmative action, civil rights, state action, constitutional law, equal protection clause