Abstract

This paper, part of an online symposium devoted to Owen Fiss's 1976 article, "Groups and the Equal Protection Clause," criticizes the article and its "group disadvantage theory" on a variety of grounds. First, I demonstrate the incoherence, inconsistency, and question-begging character of some of Fiss's foundational conceptions such as perpetual subordination, circumscribed political power, and status harm. Second, I show that black progress and political influence, even at the time Fiss was writing but more dramatically since, has refuted the empirical claims implicit in his discussion. Third, I defend the anti-discrimination principle against Fiss's attack on it, showing that the principle's individualistic-universalistic aspiration is socially sound and normatively just in its limited, temporary, and less judicialized ascription of individuals to groups, especially when compared with Fiss's theory. The criteria necessary to apply Fiss's group disadvantage theory, I show, are not only breathtakingly vague but also beg precisely the kinds of questions -- about group identity and achievement, political efficacy, inter-group competition, intra-group differentiation, the distinction between unfair practices and group-disadvantaging practices, and distributive justice -- that judges have no business answering.

Recommended Citation

Peter H. Schuck, "Groups in a Diverse, Dynamic, Competitive, and Liberal Society: Comments on Owen Fiss's "Groups and the Equal Protection Clause" " Issues in Legal Scholarship, The Origins and Fate of Antisubordination Theory (2003): Article 15.
http://www.bepress.com/ils/iss2/art15