24 December 2012

States and Identities

'Beyond Identities: The Limits of an Antidiscrimination Approach to Equality' by Martha Fineman in 92(6) Boston University Law Review (2012) 1713-1770 compares
the legal culture of equality in the United States with the legal cultures of other constitutional democracies. It looks at two manifestations of equality: equality in its narrow sense – as a nondiscrimination mandate – and equality in its broader, substantive sense – as establishing a positive right to access the social goods or resources necessary to sustain equally valued individuals. The article ultimately argues that the foundational difference between the manner in which equality is understood in the United States and how it is understood in much of the rest of the world arises from the recognition and acceptance in other countries that human need and vulnerability are not only an individual responsibility but also a state responsibility.
The U.S. Constitution is ancient by international standards, and it embodies and idealizes an antiquated political-legal subject and a restricted sense of state responsibility that is unrealistic for defining the appropriate legal relationships that exist between the modern state, the lives of individuals, and the operation of complex societal institutions. Clinging to the idea of a “liberal” constitutional or political legal subject that was prevalent when the U.S. Constitution was drafted has impeded the evolution of a concept of equality that would complement our developing understanding of what is necessary in terms of state responsibility to ensure that all people are treated as “created equal.” This article concludes by offering the concept of the “vulnerable subject” as a more viable and appropriate figure around which to build contemporary policy and law and suggesting some measures legislatures and courts could take to build a more responsive and responsible state that would function to ensure meaningful equality of access and opportunity. 
In discussing the responsive (and responsible) state Fineman comments that
Powerful, resource-giving institutions like the family, corporations, schools, and financial institutions are both constructs of the state – brought into existence and maintained under the legitimating authority of law and the regulatory machinery of the state – and also the way in which the state constitutes itself. It is the legitimating authority of law and the regulatory machinery of the state that give content and consequences to these institutions and in doing so, illustrate the state’s established monopoly over legitimate means of coercion.
Any contemporary call for a more responsive state must begin with the observation that the choice is not one between an active state on one hand and an inactive state on the other. The state is always at least a residual actor. The choice is one between the state exercising responsibility through the structuring and regulation of its various institutions or adopting of a policy of benign neglect and abandonment of responsibility in which its inattentiveness facilitates and enables patronage, spoilage, and corruption by powerful individuals and organizations. Insistence that the state be restrained and government be small, as is prominent in American politics today, ignores the many ways in which the state, through law, shapes and governs institutions from their inception to their dissolution.
The state must also be understood as a political construct as well as a functioning entity, and as such it expresses certain preferences and values that should be explored for their accuracy and desirability. Our current conception of the state as being in need of restraint is built around the privileging of autonomy in which individuals, institutions, and the state itself are viewed as isolated entities, appropriately separated from one another. This perspective reifies all three, particularly the individual and the institutional, which are viewed as natural and ungovernable rather than socially constituted. The paramount value under this conception is liberty, whether it is expressed as mandating autonomy for the individual or a free market for the institutional, and the state is the enemy. In consequence, this perspective limits the development of understandings of the potential for the state to effectively regulate institutions, modifying or structuring them in more responsive ways. A restrained state is a state that can easily avoid assuming responsibility for inequalities and unwarranted privilege because its position as the ultimate societal authority, while recognized, is ideologically contained. It is important to concede both that the state can be and has been abusive, overreaching, and authoritative, and that avoiding this overreaching requires vigilance. Nonetheless, advocating vigilance is not the same thing as urging abandonment or retreat on the part of the state.
In contrast to the restrained state, the responsive state accepts responsibility for its operation and also that of the societal institutions which it has helped bring into existence. The responsive state views individuals and institutions as intertwined, symbiotic, and interdependent with each other and also with the state and its apparatus. Institutions are shaped through law and their operation profoundly affects individual options, opportunities, and well-being and the ability of the state to effectively govern. State responsiveness recognizes that the intertwining of the individual with the institutional can be either generative or destructive, warranting supervision and correction by the only entity capable of doing so: the modern state. This state, in turn, should be understood as a cluster of relationships, institutions, and agencies reflecting and shaping public norms and values through law and policy. Those relationships include the relationship between citizen and state, as well as between state and institutions. In a responsive state individuals realize that they too comprise the state and instead of standing outside of it they have a responsibility to see it is working effectively. Perhaps we could call this relationship “democracy.”
The roadblocks to realizing a truly democratic and responsive state in the United States are many. Responsiveness is under suspicion, particularly if it costs money. Recently, the economic recession has served as an excuse and provided political cover for arguments to further dismantle what was an already weak commitment to social welfare programs. However, the real hurdles to the realization of the idea of a responsive state are ideological, epitomized in the particularly distorted vision of what constitutes autonomy, independence, and individual responsibility that has overtaken political rhetoric and action in the United States.
To overcome the obsession with autonomy and individualism that has impoverished American political discourse and resulted in the cynicism and disaffection of so many citizens, it will be important to emphasize that the basic foundational premise of the responsive state is inclusive, collective, and radically democratic and egalitarian. The state, in this view, is constituted for the “common benefit” and, thus, any privilege or favoritism resulting from state action or concession must be justified in those terms. The focus should be on the state’s responsibility for and relationship to those who are privileged, as well as those who are disadvantaged. Structures that have served to unequally allocate society’s resources to the benefit of the few must be monitored and reformed. To do this, it will be necessary to ensure more transparency in law and policymaking and to provide far greater opportunities for public assessment of legislative and executive actions so that the idea of a democratic correction for political impropriety is more than just an empty promise in political science textbooks.
Initially, the common-benefit premise would have to be applied both as a basis against which to assess the appropriateness of existing privilege in society and as a means by which to analyze the generation of new forms of privilege. This Article began by documenting the vast and growing inequality in American society. The construction and valorization of the restrained state has helped to facilitate that inequality, and its resultant privileging should be assessed critically to determine whether policies that perpetuate the status quo are justified. Politicians will tell us that this is an impossible task when what they really mean is that it will place them in an uncomfortable position, particularly with those who are most privileged. The answer to their concerns is to reiterate that the responsive state begins and ends with the concept of political responsibility. This responsibility is placed on politicians and state functionaries to ensure access to and opportunities within the institutions that have been entrusted with generating and allocating wealth, power, and position in a market society. Political responsibility precedes and is an essential complement to the idea of personal responsibility, which focuses only on individual autonomy and free-market ideals.
In understanding how we might conceive of a responsive state, it is important to realize that just like the individual and the institutional, the state is vulnerable. This is true whether the state is perceived as restrained or as responsive. Powerful entrenched interests can hijack even the most egalitarian impulse for their own purposes. Governmental structures and practices can facilitate such distortions. As recent arguments in favor of corporate subsidies and advantages for the wealthy have illustrated, assertions that privileging is done for the common good are susceptible to manipulation. This is particularly true in a political system that is contentious, obfuscating, and renders legislators and executives ineffective by tolerating processes that are prone to manipulation and distortion of facts and arguments rather than conducive to problem solving and cooperative bipartisanship. The challenge is how to structure state responsiveness in light of its vulnerabilities, namely the possibility of capture and corruption, and the current tendency of the political system to actually provide incentives for overreaching, repressive tactics, and democracy-frustrating “hyper-partisanship.”