Liberty, the New Equality

Posted: 1 Oct 2002

Abstract

What equality was to the twentieth century, so should liberty be to the twenty-first. This article examines the rise of judicial and academic toleration of judicial review for the purpose of protecting equality, culminating in the Warren Court's jurisprudence and the theory of representation-reinforcement of John Hart Ely. The article argues, however, that taking a commitment to equality seriously leads to further evolution of the understanding of the court's role in a democracy, toward a greater protection of liberty.

This article examines the development of the concept of representation in the Republic, from revolutionary times onward. It argues that the core obligation of a representative has consistently included a "communion of interests," which involves an obligation to accord positive value to the interests of all constituents, reflected in the legislators' obligation to live under the same burdens that they impose on others. The principle arises from a deep notion of political equality. This insight provides the core of Ely's representation-reinforcement theory, which identifies a malfunction in the representative process when value is denied to the interests of particular groups.

Professor Brown argues that, in a world of increasing heterogeneity of values and interests, similar malfunction can occur even without the singling out of groups for disfavored treatment. The same severance of the communion of interest, constituting a failure of representation, can occur when generally applicable rules operate to restrict activities of life that are important only to some. In these areas of difference among people, the structural means of protecting liberty that we usually count on in the representative process - the obligation of all to live by the same rules - cannot serve as the bulwark against oppressive laws that it has always been assumed to be. Thus, courts are needed to evaluate whether legislators would, in fact, be willing to assume the burdens that their laws impose on others, by examining the degree of the burden in proportion to the public need for such restrictions. This call for reasons is the core of protection of liberty under the Constitution.

Suggested Citation

Brown, Rebecca L., Liberty, the New Equality. Available at SSRN: https://ssrn.com/abstract=332922

Rebecca L. Brown (Contact Author)

USC Gould School of Law ( email )

699 Exposition Boulevard
Los Angeles, CA 90089
United States
213-740-1892 (Phone)
213-740-5502 (Fax)

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