What is permitted, and what is prohibited, by the equality principle of a liberal democracy? Does affirmative action run afoul of that principle? And where should we look to answer these questions? Many critics of affirmative action take it as axiomatic that affirmative action violates the equality principle. But this is far from clear. Every law classifies. The current law of equality itself classifies by, for example, treating discrimination on the basis of race differently from discrimination on the basis of age. No one thinks that the law of equality is, for this reason, inconsistent with the Equal Protection Clause. No one thinks that constitutional doctrine gives a "special preference" to race discrimination. Whether affirmative action violates the equality principle depends on the content of that principle. There is good reason to think that the best understanding of the equality principle of the United States Constitution has a great deal to do with a prohibition on second-class citizenship, or "caste." An anticaste principle can claim considerable support from the theory and the practice of those who defend the Fourteenth Amendment. Such a principle also fits well - far from perfectly, but well - with the general fabric and thrust of constitutional doctrine. As a matter of political theory, the anticaste principle also has considerable appeal, connected as it is with some of the defining ideals of liberal democracy, which is designed to ensure that morally irrelevant characteristics are not turned into a systematic basis for social disadvantage.2 The anticaste principle seems to serve as a promising basis for both organizing and reformulating many aspects of the law of equal protection.
Cass R. Sunstein,
Affirmative Action, Caste, and Cultural Comparisons,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol97/iss5/7