Equality, Status, and Identity in American Constitutional Law

In three essays I consider how American constitutional law might be refashioned according to status egalitarian principles. In “In Defense of Immutability,” I take up the immutability criterion in 14th Amendment jurisprudence. In short, under the immutability criterion, social groups defined by the possession of an immutable trait receive heightened legal protection. Yet the Court has never clearly or persuasively defined “immutable,” and most legal scholars now reject the immutability criterion as descriptively inadequate and morally implausible. In this chapter I offer a defense of the immutability criterion. In my view, the immutability criterion accurately captures an essential feature of unjust status hierarchies, namely, that dominant groups in a status hierarchy will tend to identify subordinate groups on the basis of stigmatized traits that possess a fixed social meaning. Equal Protection therefore requires the Court to look not to immutable physical or psychological traits but to the existence of immutable, stigmatized social identities. I conclude this Chapter by showing how my account of “social immutability” extends legal protection to traits such as language, hair, and gender presentation. In “The Badges of Slavery Revisited,” I consider Congress’s authority under Section 2 of the 13th Amendment to abolish racial status hierarchy. Since at least the late 19th century Section 2 has been understood as granting Congress the authority to abolish the “badges and incidents” of slavery. Surprisingly, however, there has been little historical inquiry into the meaning of the badges metaphor. Recently, legal historians have argued that Congressional authority to remove the badges of slavery should extend only to practices that mirror chattel slavery. In fact, as I argue in this Chapter, the badges metaphor was widely used in the antebellum period to condemn political subordination of many sorts, including misogynistic gender norms, exploitative labor relations, and segregation. Contemporary legal scholars who invoke the badges metaphor to condemn a wide variety of injustices, and not just those due to the legacy of chattel slavery, are thus correct in thinking that Section 2 remains an untapped font of legislative authority. Finally, in “The Case for Unconditional Birthright Citizenship,” I examine the moral justification for unconditional birthright citizenship. Contemporary egalitarians increasingly dismiss the practice as arbitrary and unjust; yet, in this essay I demonstrate that in multi-ethnic liberal democracies characterized by relatively high levels of immigration, unconditional birthright citizenship is necessary for creating a non-racialized, egalitarian national identity. Birthright citizenship expresses a fundamental legal commitment to incorporating, on equal terms, potentially vast demographic change into the body politic. Overall, I conclude that birthright citizenship has proven to be a deeply effective means by which to eliminate inherited status hierarchies and so deserves the support of contemporary egalitarians.PHDPhilosophyUniversity of Michigan, Horace H. Rackham School of Graduate Studieshttps://deepblue.lib.umich.edu/bitstream/2027.42/153414/1/nserafin_1.pd