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Martha Albertson Fineman 

Abstracted from: Martha Albertson Fineman, Beyond Identities: the Limits of an Antidiscrimination Approach to Equality, 92 Boston University Law Review 1713 (December, 2012) (258 Footnotes)



Looking at the mounting statistics and reports on the growing inequality in the United States, one might wonder how a nation built on the ideal of equality could have strayed so far from that ideal in reality. We seem to be proceeding under an impoverished sense of what it means to be a nation committed to equality. From a twenty-first century human-rights perspective, law and policy responses in a number of areas have fallen far short of mounting an adequate response to growing inequality. These policy deficits will be hard to close because our Constitution, with its restrictive federal nature, limits the remedial ability of the federal government, and because current Supreme Court jurisprudence deems that equality requires only sameness of treatment or nondiscrimination rather than a more substantive vision of equality.

A distributional deficit is reflected in the existing and widening income gap between the 1% (or .01%) and the rest of America. This disparity has occupied news recently, as has the tendency for billionaires to pay a lower income tax rate than do their employees earning much lower wages. Also illustrating the unequal nature of the United States' economic distributional system is the fact that in the last half-century, although worker productivity has increased, average wage and compensation rates have remained nearly flat. Workers are producing more, but their compensation remains the same. Recent figures indicate that during the Great Recession following the 2008 global financial crisis, the typical middle class family's median net worth declined by 43.3%, while the wealthiest 10% of the population experienced only a 6.4% decrease in median net worth.

The lack of social mobility in the United States today also indicates that there is a deficit in meaningful access to the opportunities provided by society and its institutions. Significantly, recent studies have found that the United States is a far less mobile society than many European countries. For most people, one of the best predictors of ultimate success and social standing is increasingly the economic position of their parents. The hallowed American mantra of equality of opportunity and access is rendered hollow by such data.

An additional deficit, which both contributes to and is exacerbated by the inequalities resulting from the deficits previously discussed, exists within our democratic institutions. Disadvantaged circumstances lead to disengagement and alienation on an individual level. Additionally, the United States as a whole suffers from structural impediments to democracy as compared with our peer nations. The length and manner in which our elections are run and the role of private money in campaigns create a chaotic and superficial political discourse that avoids in-depth debates on shared factual foundations, favoring instead polarized sound bites, intentional misrepresentations and distortions, and partisan obstinacy. Unsurprisingly, the Supreme Court's decision in Citizens United v. FEC intensified these structural impediments, unleashing mountains of money through political action committees during the most recent election cycle. The fundamental principle of equality guaranteed by “one person, one vote” is vanquished by the ability of corporations and billionaires to buy endless media advertisements, arguably often untrue or distorted, that favor or condemn candidates for office.

This Article compares the legal culture of equality in the United States with the legal cultures of other constitutional democracies. It looks at two manifestations of equality: equality in its narrow sense - as a nondiscrimination mandate - and equality in its broader, substantive sense - as establishing a positive right to access the social goods or resources necessary to sustain equally valued individuals. The Article ultimately argues that the foundational difference between the manner in which equality is understood in the United States and how it is understood in much of the rest of the world arises from the recognition and acceptance in other countries that human need and vulnerability are not only an individual responsibility but also a state responsibility. The U.S. Constitution is ancient by international standards, idealizes an antiquated political-legal subject, and embodies a restricted sense of state responsibility that is unrealistic for defining the appropriate legal relationships that exist between the modern state, the lives of individuals, and the operation of complex societal institutions. Clinging to the idea of a “liberal” constitutional or political-legal subject that was prevalent when the U.S. Constitution was drafted has impeded the evolution of a concept of equality that would complement our developing understanding of what is necessary in terms of state responsibility to ensure that all people are treated as “created equal.” This Article concludes by offering the concept of the “vulnerable subject” as a more viable and appropriate figure around which to build contemporary policy and law and suggesting some measures legislatures and courts could take to build a more responsive and responsible state that would function to ensure meaningful equality of access and opportunity.

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Ultimately, orienting law and politics around the “vulnerable subject” would emphasize a different set of values than those that have evolved around the image of a liberal subject and a restrained state. Those values would be more egalitarian and collective in nature, preferring connection and interdependence rather than autonomy and independence as the guiding visions in both the political and personal realms. In contemporary political discourse the image of the human being as both a legal reality and a political subject is reductive, diminished in both descriptive and aspirational terms. We are perversely individualized and isolated at the same time that we are cast as merely the subjects of balance sheets and statistical models, the asserted inevitability of our selfish nature captured in economic terms such as “moral hazard” and the extent of our ambition confined by the glorification of “efficiency.” Further, the state is perceived as a threat to liberty and autonomy, not as one of the necessary providers or insurers of the resources whereby individual agency can be realized. These are the crabbed images that confine current political rhetoric and hobble the imagination of political and legal theorists. A vulnerability analysis asks us (and our politicians) to embrace a more complex and aspirational reality.


. Robert W. Woodruff Professor of Law, Emory University; Founding Director of the Feminism and Legal Theory Project (1984 to present); Founding Director of the Vulnerability and the Human Condition Initiative (2008 to present).