Working Paper No. 02-28:
Equal Opportunity, Affirmative Action, And The Anti-Discrimination Principle: The Philosophical Basis For The Legal Prohibition Of Discrimination
Date Posted: 2002
Abstract (below) | Full text (most recent) on SSRN
This article provides a comprehensive examination of the philosophical history and the moral foundations of American anti-discrimination law. Both the Equal Protection Clause and the Civil Rights Act are designed to embody a fundamental moral principle, the anti-discrimination principle. The article begins by identifying three different interpretations of this principle: the anti-differentiation interpretation that prohibits unequal treatment on the basis of irrelevant characteristics, the anti-oppression interpretation that prohibits the oppressive unequal treatment of minorities, and the anti-subordination interpretation that prohibits conduct that has the effect of subordinating or continuing the subordination of minorities. It then traces the history of the Equal Protection Clause and the Civil Rights Act, demonstrating 1) that the Equal Protection Clause was originally understood as an anti-oppression principle, that over the course of the twentieth century it evolved into an anti-differentiation principle, and that over the last three decades it was again transformed into a fluctuating mix of these two interpretations, and 2) that the Civil Rights Act was originally understood as an anti-differentiation principle but quickly shattered in a confused amalgam of anti-oppression, anti-differentiation, and anti-subordination principles. The article proceeds by performing a normative analysis of both provisions to demonstrate that the Equal Protection Clause is properly interpreted as an anti-differentiation principle and the Civil Rights Act is properly interpreted as an anti-oppression principle. Finally, it provides an explanation for the ideological strife over the issue of discrimination for the past three decades and draws some implications about how both the Equal Protection Clause and the Civil Rights Act should be interpreted in the future.