Legal Commentary

Larry Tribe on Liberty and Equality

By Jack M. Balkin

I?m delighted that the symposium at the University of Tulsa Law School honoring my work triggered this intriguing exchange between two of the most exciting contributors to that event, Heather Gerken and Kenji Yoshino. I have followed their continuing conversation with great interest and find myself, perhaps unsurprisingly, in broad agreement with both of them except insofar as they appear to disagree with each other.

Kenji is undoubtedly right that the ?too many groups? problem will worry the current Supreme Court and its plausible successors for the foreseeable future, and that this worry puts something of a ceiling on realistic aspirations and thus on useful strategies for making progress along the equality axis. And Heather is undoubtedly right that the ?too many individuals? problem would give the same Court and its successors qualms that prevent the ?one right at a time? strategy from entirely solving the problems plaguing the ?one group at a time? strategy. The very things about the language of universalism that make the ?liberty? strategy appealing to some (like me) no doubt make it frightening to others.

But it seems to me that the resolution of this puzzle is to be found not in dividing to conquer but in uniting to assuage. Michael Tomasello, co-director of the Max Planck Institute for Evolutionary Anthropology, has a lovely little piece in The New York Times Magazine for this May 25 (at p.15), ?How Are Humans Unique?? Asking that ubiquitous question, he defends an answer focused less on our distinctive tool-making and concept-manipulating capcities than on our quite unique skills for social learning, communicating and construing the intentions of others. Tomasello makes a strong case for the proposition that it is because human beings ?are adapted for such cultural activities ? and not because of their cleverness as individuals ? that human beings are able to do so many exceptionally complex and impressive things.? He adds that, ?[o]f course, human beings are not cooperating angels; they also put their heads together to do all kinds of heinous deeds. But such deeds,? he observes, ?are not usually done to those inside ?the group.? Recent evolutionary models have demonstrated what politicians have long known: the best way to get people to collaborate and to think like a group is to identify an enemy and charge that ?they? threaten ?us.? . . . The solution ? more easily said than done ? is to find new ways to define the group.?

Is it too audacious to hope that a strategy can proceed by cautious steps that sometimes speak the language of groups (when we are ready as a culture to enlarge the group we think of as ?us?) but at other times speaks the language of rights (when we are ready as a culture to perceive a right as universally appealing), eschewing any a priori preference between the two? Isn?t that the very prospect that makes the Obama candidacy so exciting?

Like Heather, I?d rather see gay-rights cases stand with Brown than with Roe, but not for any readily generalizable reason. For me, what has always made Roe v. Wade uniquely difficult, indeed sui generis, isn?t the character of the liberty the woman in the case must claim but the nature of the countervailing interest or right that the challenged exercise of her liberty would jeopardize, a feature that is dramatically less present in Lawrence and in the same-sex marriage cases than it was in Roe.

The strategy that for me promises the greatest glimpse of the infinite is a strategy that resists rigid compartmentalization and that reaches across the liberty/equality boundary to recognize the ultimate grounding of both in an expanding idea of human dignity.

Full post as published by Balkinization on May 28, 2008 (boomark / email).