Inequality in the United States can seem intractable. It’s often referred to as “structural,” with an aura of durability reserved for the Hoover Dam or the Brooklyn Bridge. But an American University Washington College of Law professor shows there’s hope to rectify current and longstanding injustices.
Robert Tsai’s new book is called Practical Equality: Forging Justice in a Divided Nation, and it provides workable suggestions for protecting and strengthening individual rights. And as Tsai explains in an interview, these issues are deeply relevant in 2019.
“I wanted to write a book that could speak to our times,” he says. “Whether they’re activists, regular people, lawyers, or even politicians, I want them to be able to pick up the book to find a roadmap—to confront these issues of equality and understand why we keep getting into the same rut.”
Practical Equality is Tsai’s third book and will be published by W.W. Norton & Company. He’ll appear at Politics & Prose for a discussion with New York Times scribe Adam Liptak on February 21 at 7:00 pm.
According to Tsai, Americans fighting for social justice keep bumping up against certain forms of resistance. He identifies two major, recurring obstacles.
“First, who is equality for? The thing about equality is it’s fundamentally a moral question. It’s about, ‘How do we fairly treat people? How do we see ourselves as a country?’”
The other impediment is anxiety over the “consequences” of equality. In other words, for privileged groups in society, what will happen if they expand rights to marginalized minorities?
“A lot of white people were frightened about what would happen if black children went to school with their white children, and they fought integration,” he says. “People were worried that if marriage rights were extended to same-sex couples, it would somehow destroy the institution of marriage.”
Fairness and Due Process
In his book, Tsai drops the reader into a frenzied weekend in January 2017, when President Donald Trump’s executive order effectively prevented foreign nationals of seven Muslim-majority nations from entering the country. As federal authorities implemented the controversial travel ban, lawyers and activists flooded American airports to assist migrants and protest.
After lawyers made arguments based on fairness and due process, courts ruled that the initial policies were too sudden and haphazard. The US Supreme Court eventually upheld the travel ban, but it looks quite different in its current form.
“A lot of things happened along the way that actually reduced some of the harms that people experienced from the travel ban,” he says. “The administration took some countries off the list, and that ended up affecting thousands of people.”
That lawyers presented arguments about fairness is important, he says. It’s a principle overlapping with—but not identical to—equality.
“What due process can protect is a kind of fairness that sometimes approximates the moral quality that we can’t agree on,” Tsai notes.
This is a key theme of Practical Equality. You can achieve something close to equality, not by obstinately talking about equality, but by showing flexibility and reframing the debate. For instance, he examines criminal justice policies and recommends bringing attention to cruelty and inhumane treatment of prisoners.
Tsai’s call for a multipronged approach relies on extensive historical precedent. During the 19th century antebellum period, abolitionists made sweeping arguments about individuals’ natural rights to be free. But there was also the Underground Railroad, which enabled ex-slaves to become full citizens in the North.
In addition, abolitionists used other practical ways to weaken the institution of slavery. “They tried to free slaves through the legal system. They took advantage of lawsuits arguing that slaveholders had engaged in assault and battery and unlawful imprisonment,” he explains. “In some states, they were successful. Even though they didn’t get a ruling that said slavery was morally wrong, they were able to use whatever means were at their disposal to reduce the harms of slavery.”
He cites a 20th century example, on Georgia’s death penalty, where reformers put all their eggs in one basket. In the 1987 US Supreme Court case McCleskey v. Kemp, lawyers utilized a study showing racial discrimination in death sentences to argue an equal protection violation.
“They had this great study, but they really should have understood that they were asking for a lot. They were asking for the court to strike down the entire death penalty in a state,” he says. The Supreme Court predictably upheld capital punishment in Georgia, and the justices minimized the significance of the racial disparities uncovered.
But he believes there were other arguments that could have been explored. “It turns out there were very few guidelines determining when a prosecutor would seek death against somebody. You had 100-plus counties in Georgia where each prosecutor could do his or her own thing,” he says. “If the advocates had pushed the fairness argument stronger, could they have avoided that disastrous ruling? The fairness argument by itself can be the common ground that you need to get some other people onto your side.”
Equality is Complicated
Fairness versus equality is a significant distinction right now, he says. Many contemporary battles are about treatment of undocumented immigrants or, say, convicted felons. If a large swath of the US population believes those people shouldn’t be granted equal status, discussions about due process and human rights might resonate more with the public. And on refugee issues, there are international standards that should be followed, he notes.
“People tend to think noncitizens deserve to be treated differently. But what’s being tested right now is, ‘How far can you take that argument? How much can you dehumanize someone who’s a foreigner?’” Tsai says. “The pragmatic thing that we can do to help migrants is to probably use some of these other arguments, such as anti-cruelty.”
He wants equality-seeking readers to think through strategy and efficacy. Activists often go full steam ahead, and Tsai says that can be necessary. But sometimes, he says, a court challenge isn’t advisable, and there are other ways to seek change. That includes local activism and electing new, pivotal state officials like the attorney general or secretary of state.
“I want people to see that equality is a complicated thing,” he says. “We need to be able to talk about it in this big robust way and to fight hard on behalf of equality. But we also need to have a backup plan.”