Patrick McKinley Brennan (Villanova University School of Law) has posted A CONSTITUTION FOR EQUALS? BUILDING BETTER THAN STUDENTS FOR FAIR ADMISSIONS on SSRN. Here is the abstract:
An important but underappreciated aspect of Students for Fair Admissions v. Harvard College (2023) (SFFA) is what it said, or rather failed to say, about whether our Constitution is committed to basic human equality, the idea that we are one another’s equals and should, therefore, be treated as equals. It is not the different idea, with which it is sometimes conflated, that we should be given equal opportunities or outcomes. Disconcertingly, among the six opinions filed in SFFA, only Justice Clarence Thomas’s concurrence finds the Constitution committed to basic human equality. What is more, Justice Thomas offers an argument for why he finds basic equality in our Constitution, and that argument, as well as possibilities for improving upon it, are the focus of this Article. The main thesis is that it is time for our Constitution to be regrounded in our unwritten constitution’s commitments to basic equality, a higher truth that does not require us to be blind to the lesser facts of our diversity and differences. It begins by laying out Justice Thomas’s argument for basic human equality that starts with Lincoln at Gettysburg, moves back through the Declaration of Independence, and lands on the tradition of political philosophy exemplified by Hobbes, Locke, and Montesquieu, all three of them named by Justice Thomas in SFFA. Working dialectically through those theorists’ understandings of basic human equality, it concludes that all three of them differ radically from the ennobling human equality Justice Thomas rightly associates with Lincoln, the Declaration, and our Constitution. The problem, it argues, is that the theorists favored by Justice Thomas redefined human nature downwards to provide what Machiavelli called “effectual truths” that would support politics of a new, lower kind. The point of their deliberately oversimplified conceptions of human nature was precisely to provide conceptions of human equality that would preserve private inequalities. We can build better in the cause Justice Thomas has begun. In search of a more truthful account of human nature and human equality in which to reground our Constitution, it first explores the prodigious efforts of Harry Jaffa to show the meaning of the Declaration’s “all men are created equal” proposition to which Lincoln had the nation dedicated at Gettysburg. It then pivots to the work of Alexis de Tocqueville, who contended that the American mind on human equality was that all men and women are made in the image and likeness of God and are therefore one another’s equals. The Christian idea of human equality, expressed in the Declaration as “created equal,” was never meant to be a scientific proposition about something empirical; it was always a claim about the rightness of representing ourselves to ourselves according to the higher truth of our equality vis-à-vis one another because of our equality before God. This Christian idea of human equality, the Article goes on to argue, is already part of our unwritten constitution, as elaborated by the great constitutional theorist, Orestes Brownson. Brownson found in our unwritten constitution a metaphysical understanding of human persons according to which we are equals because we are all, even now, participants in the goodness of God. This participationist metaphysics provides a justification for the secondary sovereignty of equals by which they create and sustain a constitutional order that does justice and right for the common good. Finally, building on the metaphysics Brownson found lodged in our unwritten constitution, it develops the concept of friendship as the primary purpose of law understood as rightly ordered to the common good of equals. Arguing that the diversity and inequalities that are true of those who are fundamentally one another’s equals have social purposes to be achieved through lawmaking aimed at friendship, it concludes by assessing the prospects for living as equals today. Although neither the common good nor friendship provided the explicit basis of the majority’s decision in SFFA, both of those concepts support the Court’s rule that a student must be treated on the basis of his or her ability to contribute to a university community – not on the basis of race. It could yet be Justice Thomas’s legacy to recommit our Constitution to basic human equality as a higher truth about how humans stand vis-à-vis one another because of how they stand before God.
Recommended.