Friday, January 13, 2006

Constitution of Status summary

I've reduced a 30pp article to about two. "If social heirarchy is a sin to
democratic ideals, then democracy always exists in a fallen condition,
a penitent perpetually in hope of redemption. Democracies are always
unfinished projects." Click on Read...

Constitution of Status -- Balkin
106 Yale L J 2313

I-----The idea of a democratic culture

Democracy has both formal features (regular elections, majority rule)
and a social structure. [Isn't the latter better termed
egalitarianism? Is it really an *essential* part of democracy?] It's
hard to think of formal features without the social structure, because
we think either "electoral democracy" will lead to "social democracy"
or the lack of social democracy will corrupt elections.

A "democratic culture" thus excludes unjust social heirarchies, and
the democratic ideal calls for revolution against them. All
democracies have existed in a sociological predicament, because it's
more than just a procedure. "If social heirarchy is a sin to
democratic ideals, then democracy always exists in a fallen condition,
a penitent perpetually in hope of redemption. Democracies are always
unfinished projects."

How should the constitution deal with groups and group conflict? Does
it just lay down rules of fair, neutral competition, or does it try to
break down older forms of social heirarchy? Balkin thinks the
latter. [He doesn't really need the constitution here: he just means
"good government", as I think we'll see later.] What is the
constitution of status?

Romer v. Evans: Kennedy said Colorado amdt 2 showed a severe and
invidious animus, a desire to harm a politically unpopular
group. Scalia said it was just a cultural and moral struggle best left
to the democratic process.

Amdt 2 was an attempt of a dominant culture to keep a lower status
group subordinate. It doesn't really require animus for a law to be
bad: any unjust social heirarcy should be unconstitutional.

II-----Group conflict and the economy of status

Cultural struggles arise when groups struggle over wealth and power,
but especially over status. Status is the respect and imputed positive
qualities of a group. Weberian theory analyzes social structure in
terms of status groups, rather than Marx's economic classes: status
groups (e.g. whites, protestants) may be of any economic class, and
status heirarchies exist when there is a vertical structure of super-
and subordination. A status heirarchy puts positive meaning on one
group, and negative on another, linking them relatively.

Immutability isn't necessary for a trait to be linked to status. What
traits define status is historically contingent. Immutability helps
stability, but sometimes laws can be passed to help stability
(anti-miscegenation). Sometimes low status groups have some
compensation for their place: Weber gives as an example the Jewish
pride in being God's chosen people.

Groups compete both for material resources and for status. These
fights can be largely symbolic (confederate flag placement), but
symbols and meanings have huge value, both in themselves, and in the
power they can bring. Status fights are usually a zero-sum game: one
group gets more respect, and the dominant group feels less special.

Because status groups are often organized around styles of life,
status competition is often expressed in terms of moral
disapproval. Temperance was a fight of Protestants against Catholics
and immigrants for a way of life and preserving traditional
values. But animus is not always present: it can be pity or fear or
disgust (as is often the case towards gays).

When unjust social heirarchies are strong, society often seems very
much at peace. Betters can condescend to associate freely with lessers
without fear. But when status heirarchies weaken, betters feel
threatened, and feel status nostalgia, when everyone knew their place
and things were moral.

Romer v. Evans again: grudging tolerance for homosexuals can occur
only if they are lower in status. Otherwise they are accused of
destroying traditional marriage by lowering it in status. [But it will
be lowered in status, right? Balkin must think it's worth it for
justice, or he must think a mere dissipation of wrong moral
objection can be a non-zero-sum game.]

Social movements (abolition, gay rights) push majorites to accept
redistributoins in status. Such movements try to create problems in
maintaining traditional controls and morality. Moral or religious
discourse is one of the most important ways to justify existing
heirarchies. [And also for attacking them, of course.]

Any departure from the baseline that views homosexuality as deviant is
seen as giving them "special treatment." [But what Amdt 2 was stopping
was special treatment, to some extent: but it's special treatment to
break down heirarchy.]

Social movements bring invisible groups to a state of being visible
but politically powerless. Then, as their rights are agitated for,
they are then accused of being a vocal minority with lots of power.

III-----The constitution and status heirarchies

Scalia wants cultural struggles to be left to politics. Democracy,
indeed, can kill heirarchy, if there are more in the lower-status
group (a pyramid). But if society is "vase-shaped", then a
middle-class can dominate a smaller lower-status group.

The constitution has various status-disestablishing clauses. Most
obvoius are the Reconstruction amendments. The Fourteenth Amdt has
both a citizenship clause and an anti-special interest meaning, so
that working people could be protected against monopolies and
"economic nobility." The Establishment clause weakens religious

The Bill of Attainder and Nobility Clauses are critical: they depend
on the asymmetry of status relations. They are concerned with
prohibiting social exclusion, and do not prohibit laws of social
inclusion. If an affirmative action law gives benefits to blacks, it
does not single out whites as inferiors, or turn blacks into the new
aristocrats; in fact, they may reinforce black inferiority. [All this
ignores the "neutral equality" interpretation of the 14th, and its
"general welfare" ideas.]

Various theoreticians have found doctrines of anti-caste principles in
clauses or in general.

Why are some heirarchies bad and others okay? Why can we socially
disapprove of gamblers, but not gays? Because gayness is a central
part of one's social existence, and are frequently condemned as
deviant. The very meaning of an unjust heirarchy brings the
constitution to bear.

What's the difference between okaying gays and retaining moral
disapproval of pedophiles? Pedophilia is naturally exploitative. Isn't
that a moral judgment? Yes, but the point isn't to get rid of all
moral judgments--then we'd stop being able to act against status
heirarchies. The point is that moral judgments are naturally suspect
when they are used to reinforce heirarchies.

Group conflict and heirarchy is central to the study of constitutional
liberty. The Carolene Products footnote (discrete and insular
minorities) can be read as a sociological view of heirarchy. It's not
just the process-view that some outcast social groups are unable to
form coalitions to protect their interests; it's that this prejudice
is corrosive of democratic institutions. In fact, without this
rejection of heirarchy, there'd be no reason to prevent majorities
from imposing their will on minorities as long as elections ran


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