Abstract

Returning to "Groups and the Equal Protection Clause" after 25 years, this essay responds to the many comments that it provoked and that are presented in the Symposium. It identifies the shift in civil rights practice that led me to question the then prevailing norm of antidiscrimination and to formulate an alternative, first called the group-disadvantaging principle, now known as antisubordination, that more fully responds to the problems of social stratification associated with the racial caste structure that scarred this nation from the beginning. My argument was largely premised on the view that the status of groups and the welfare of individuals are inextricably linked, but in this essay I go beyond that and explore justifications for antisubordination that make the character of community central. I also chart the struggle between antisubordination and antidiscrimination as a gloss on equal protection in a variety of contexts, including school desegregation, the challenge to standardized employment tests, and affirmative action. The role of Congress in advancing the antisubordination principle during the waning days of the Second Reconstruction is duly noted and defended, but without qualifying in any way the importance I attach to securing a more robust place for antisubordination in the work of the Supreme Court. The essay closes with a formulation of the challenge ahead, above all, the elimination of the structures of subordination responsible for the persistence of the black underclass, and calls upon the Court to propound a theory of equal protection adequate for that challenge and for the Third Reconstruction.

Recommended Citation

Owen Fiss, "Another Equality" Issues in Legal Scholarship, The Origins and Fate of Antisubordination Theory (2004): Article 20.
http://www.bepress.com/ils/iss2/art20