The American Civil Rights Tradition: Anticlassification or Antisubordination?

With the publication of Groups and the Equal Protection Clause, Owen Fiss inaugurated the antisubordination tradition in legal scholarship of the Second Reconstruction. Antisubordination theorists contend that guarantees of equal citizenship cannot be realized under conditions of pervasive social stratification and argue that law should reform institutions and practices that enforce the secondary social status of historically oppressed groups. As elaborated by Fiss and subsequent proponents, including Catharine MacKinnon, Charles Lawrence, Derrick Bell, Laurence Tribe, and Kenneth Karst, this principle is variously called the antisubordination principle, the antisubjugation principle, the equal citizenship principle, or the anticaste principle. The latter expression evokes the famous statement of John Marshall Harlan in Plessy v. Ferguson that there is no caste in the United States, as well statements made by framers of the Fourteenth Amendment that the amendment was designed to prohibit “class legislation” and practices that reduce groups to the position of a lower or disfavored caste. Fiss called his version of the antisubordination approach the “group disadvantaging principle” and he defined it as the principle that laws may not “aggravate” or “perpetuate” “the subordinate status of a specially disadvantaged group.