“I regard it as a salutary doctrine that cities, states and the Federal Government must exercise their powers so as not to discriminate between their inhabitants except upon some reasonable differentiation fairly related to the object of regulation. This equality is not merely abstract justice. The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected. Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation.”
–Robert Jackson, Railway Express v. New York
I wrote a while back about Operation Meth Merchant, a case in Georgia in which stores owned by South Asians were 100 times more likely than white-owned stores to be targeted for investigation. Dismayingly–but not surprisingly–the equal protection argument has been rejected in District Court.
Which brings us back to my recent series of posts–soon to continue–about Roe v. Wade. Several commenters noted that arguments about over- and under- inclusiveness and as-applied violations of equal protection were unlikely to be successful. As the case of Operation Meth Merchant case reflects, these criticisms, as far as they go, are right–the exercise is literally academic. I understand that Yick Wo and Shapiro v. Thompson are largely observed in the breach, and successfully making these types of arguments under existing precedents is immensely difficult. A real-life litigator would unquestionably be unwise to rely on such arguments rather than simply asserting that a woman’s fundamental right to reproductive freedom should trump the compelling state interests reflected in legislation, although I personally find these arguments much less compelling.
Still, I think it’s worth thinking about these arguments. First of all, I don’t believe that the current jurisprudence on the subject is correct. While evidently there are going to be significant enforcement inequities in any non-utopian legal system, and legislation is often not going to meet strict formal standards of logical consistency, I’m not willing to take the Rehnquist route and simply throw up my hands and give up on trying to address even the most egregious cases of arbitrary application. It will not always be easy to draw distinctions between the inequities that are inevitable even in honest attempts to write and apply laws fairly and egregious arbitrariness, but it is judge’s job to make these judgments. And it’s particularly important not to abandon the field entirely in cases like the drug war and abortion law, where grossly inequitable enforcement is absolutely critical to the maintenance of legislation in the first place.
Secondly, I think it’s worth discussing the patently irrational construction and arbitrary enforcement of abortion statutes for other reasons. First of all, these practices are important policy considerations even if they do not rise to the level of being constitutional violations in themselves. If a rule isn’t important enough to apply with even a modicum of fairness, this strongly suggests that the ends are not compelling enough to justify state coercion, and also suggests that the laws are unlikely to be effective enough to justify the negative externalities. (This is particularly important with respect to drug laws, where a fairly applied statute would not abridge fundamental constitutional rights.) Secondly, I think that this analysis should inform other types of constitutional reasoning. If we are left with the difficult problem of balancing a fundamental right against a potentially compelling state interest–and as long as Griswold and Eisenstadt remain good law, this is the situation with abortion laws–it would ordinarily be appropriate to accord a significant measure of deference to legislatures. However, in making the prudential judgments involved in such balancing, it is surely worth considering the fact that abortion laws in many respects bear little rational relationship to the asserted state interests, and are virtually unenforceable against people with any social status. Legislatures in such circumstances should sure be accorded less than the usual deference, even if one doesn’t believe that the arbitrary construction and application of the laws rises to the level of a constitutional violation.