Episode description

Equality creates a framework for how we should treat others, and how we should expect to be treated by others. The institution of laws enforces the rules of equality within that framework. Law helps shape the conversations in public life and in politics about what can, and cannot, be done when dealing with more abstract concepts like fairness, freedom, and equality. Law also acts as dispute resolution when we see our intangible values being infringed upon. It helps create compromises and resolutions to problems that arise from differing values, viewpoints, and ideologies.

Law can fail when judges fail to empathize with someone’s complaint about equality, such as in the case of Plessy v. Ferguson. Judges struck down a complaint because they thought the plaintiff was imagining his own discrimination. Their failure was one of empathy, but the legacy was one of racism and segregation. Law also fails when judges ratify policies that make broad judgements about social or racial groups. By doing this, they legitimize incorrect and dangerous ideas. They end up establishing a policymaker’s incorrect judgement as law, as though it had been correct. This in turn encourages other people to increase their attacks on these groups, because they see their own views as legitimized by the law.

When fighting against policies that infringe on equality, consider more than one angle of argument. For instance, Trump’s Muslim ban was clearly an attempt to disenfranchise immigrants from Muslim majority countries, but it never actually mentioned Muslims. This made judges uneasy about declaring it discriminatory on the basis of religion. Instead, those opposed re-framed the debate around another American value: fairness. By arguing the ban impacted many residents already in the US with green cards, it violated their right to expect free and fair treatment. This argument was successful enough in court that the Trump Administration had to completely rewrite the ban, leaving out new countries and providing exceptions benefiting hundreds of thousands of people.

Robert L. Tsai is a Professor of Law at American University. He is also an acclaimed essayist and author, focusing on constitutional law and history. He is the author of three books: Practical Equality: Forging Justice in a Divided Nation (W.W. Norton Feb. 19, 2019), America’s Forgotten Constitutions: Defiant Visions of Power and Community (Harvard 2014), and Eloquence and Reason: Creating a First Amendment Culture (Yale 2008).

You can follow him on Twitter @robertltsai.