Comparative and Noncomparative Justice: Some Guidelines for Constitutional Adjudication

Abstract

In this article, the authors create and apply a novel approach to constitutional adjudication. By fleshing out the logical and practical relationships between constitutional arguments that allege underlying claims of comparative injustice and those that allege underlying claims of noncomparative injustice, and then applying the resulting analytic framework to a variety of constitutional settings, the authors have devised a set of guidelines that courts, lawyers and scholars can use to make and evaluate a wide variety of constitutional arguments.

The Principle of Comparative Justice mandates that relevantly-similar cases be treated similarly and that relevantly-dissimilar cases be treated differently; the Principle of Noncomparative Justice decrees that each person be treated precisely as she deserves or merits, without regard to the way in which anyone else is treated. Given the logical and practical relationships between the Principles of Comparative and Noncomparative Justice that the authors describe, they discern a number of errors, ranging from the misleading to the dire, in the United States Supreme Court's use and evaluation of constitutional arguments that can be characterized as comparative justice arguments, noncomparative justice arguments, or both. The Court's mistakes range from mischaracterizing its own arguments to using the wrong analysis altogether. The guidelines that the authors set out in this article should help to ensure that in the future, other courts, scholars, and lawyers can avoid the same kinds of mistakes.

JEL Classification: K30