Should a liberal constitution constrain the racially discriminatory actions of state as well as nonstate employers? This essay answers in the affirmative, arguing that once we take seriously the right to nondiscrimination on the basis of race in terms of employment, we realize that such a constitution must constrain the actions of both. In doing so, this essay draws from John Rawls’s four-stage sequence, a sequence that suggests one way philosophical principles translate into constitutional design. A Theory of Justice is (...) the go-to theory for a wide range of political issues from a perspective of liberal theory, but scholars have paid less attention to it and comparative constitutional law. I take up this neglected inquiry by focusing on the distinction between the horizontal and vertical effect of a right not to be discriminated against on the basis of race in matters of employment. My analysis draws from the United States Constitution and the Constitution of the Republic of South Africa. A vertical effect constrains state power: a right to nondiscrimination is violated only when a state or public body discriminates on the basis of race. A horizontal effect constrains nonstate actors: a private employer may violate rights by discriminating on the basis of race. I argue that, in line with the South African Constitution, Rawls importantly adopts a horizontal effect of the right not to be discriminated against on the basis of race by ensuring formal equality of opportunity. His theory of justice suggests that a liberal constitution ought to constrain the racially discriminatory actions of both state and nonstate employers. This, in turn, represents an important response to racism that occurs in the private sphere. (shrink)

The conventional interpretation of equality under the law singles out certain groups or classes for constitutional protection: women, racial minorities, and gays and lesbians. The United States Supreme Court calls these groups 'suspect classes'. Laws that discriminate against them are generally unconstitutional. While this is a familiar account of equal protection jurisprudence, this book argues that this approach suffers from hitherto unnoticed normative and political problems. The book elucidates a competing, extant interpretation of equal protection jurisprudence that avoids these problems. (...) The interpretation is not concerned with suspect classes but rather with the kinds of reasons that are already inadmissible as a matter of constitutional law. This alternative approach treats the equal protection clause like any other limit on governmental power, thus allowing the Court to invalidate equality-infringing laws and policies by focusing on their justification rather than the identity group they discriminate against. (shrink)

Central to the freedom of association is the freedom to exclude. In fact, American constitutional law permits associations to discriminate on otherwise prohibited grounds, a principle of expressive discrimination or what I call "expressive exclusion." However, we lack a complete normative defense of it. Too often, expressive exclusion is justifi ed as a simple case of religious accommodation, or a simple case of freedom of association or speech—justifi cations that are defi cient. I argue that expressive exclusion is essential in (...) creating genuine space for democratic dissent. It stands at the intersection of speech, association, and democracy. (shrink)

Central to the freedom of association is the freedom to exclude. In fact, American constitutional law permits associations to discriminate on otherwise prohibited grounds, a principle of expressive discrimination or what I call "expressive exclusion." However, we lack a complete normative defense of it. Too often, expressive exclusion is justifi ed as a simple case of religious accommodation, or a simple case of freedom of association or speech—justifi cations that are defi cient. I argue that expressive exclusion is essential in (...) creating genuine space for democratic dissent. It stands at the intersection of speech, association, and democracy. (shrink)

Rights -- Justification in theory -- Justification in practice.

ABSTRACT Because of the irresolvable disagreement between the Federalists and Anti-Federalists, the U.S. Constitution both embodies value pluralism and has encouraged it ever since its adoption. Rather than ignoring the nation-centered, dynamic ideas of the Federalists or the state-centered, static ideas of the Anti-Federalists, the Constitution incorporated both views, giving rise to plentiful opportunities for interpretive disagreements that have not, however, stood in the way of the interpreters’ shared commitment to the document itself. In this respect, the Constitution and constitutional (...) law model the politics of pluralism. (shrink)

In a sex selective abortion, a woman aborts a fetus simply on account of the fetus’ sex. Her motivation or underlying reason for doing so may very well be sexist. She could be disposed to thinking that a female child is inferior to a male one. In a hate crime, an individual commits a crime on account of a victim’s sex, race, sexual orientation or the like. The individual may be sexist or racist in picking his victim. He or she (...) could be disposed to thinking that one race or sex is inferior to another. I argue that while a prohibition on sex selective abortions is anomalous in a liberal, criminal legal framework, hate crime legislation may not be. The former but not the latter constitutes a thought crime. I define a thought crime as one where an agent’s motivation is not just relevant but sufficient to take an act from the domain of the non-punishable to the domain of the punishable. Ignoring a woman’s sexist motivation in procuring an abortion suddenly renders her act of abortion legal. On the other hand, discounting an agent’s bias in committing a hate motivated assault or murder does not transform the act from a punishable one to a non-punishable one. Assaulting or murdering is already a crime. (shrink)