The Language of Argument

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The Law of Discrimination

Everyone knows that the statute in question had its origin in the purpose, not

so much to exclude white persons from railroad cars occupied by blacks, as to

exclude colored people from coaches occupied by or assigned to white persons....

No one would be so wanting in candor as to assert the contrary.

If Harlan is right, the Court’s argument has a false premise, so the statute in

Plessy should have been found unconstitutional even if the Court was right

about what was necessary to find a law unconstitutional.

We can summarize this discussion by listing various ways in which argu-

ments from precedents can fail:

1. The precedent and the present case might not truly resemble each
   other in the ways that the argument claims.


2. The respects in which the cases resemble each other might not be
   important enough to justify the same decision in the present case.


3. The precedent and the present case might also differ from each other
   in important respects that justify distinguishing the precedent.


4. The precedent might be mistaken or immoral enough to be overturned.


5. There might be other, stronger precedents that conflict with the
   precedent in the argument.
   Whenever you evaluate or present any argument from a precedent, you
   need to ask whether the argument fails in any of these ways.

THE LAW of DisCRiminATion

These general methods of legal reasoning can be seen at work in a particu-

lar area of constitutional law—the law of discrimination. To understand the

cases in this area, some background will be helpful.

The Equal Protection Clause

The provision of the Constitution that governs discrimination is the equal

protection clause of the Fourteenth Amendment. It provides as follows:

No state shall make or enforce any law which shall... deny to any person within

its jurisdiction the equal protection of the laws.

The clearest thing about this clause is that it is not clear. Whatever it means,

it cannot mean that laws cannot ever treat people unequally. Criminal laws

treat those who commit crimes quite differently from those who do not. The

general idea behind the clause seems to be that like cases should be treated

in like ways. Put negatively, the clause prohibits unequal treatment when

there is no significant difference. This, however, is still both general and

vague, for we need principles that determine what sorts of likenesses matter

and what kinds of differences are significant.

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