Encuadres noticiosos en la cobertura de primeras damas

No contemporary English-speaking legal philosopher has defended this idealistic approach to law more forcefully than Ronald Dworkin. Although he does not cite Hegel as his model, Dworkin argues that legal systems consist of laws in the narrow sense (pre-scriptive rules) and unstated moral principles that lay out a philoso-phy of government that can be seen as justifying the system as a whole. To see how this theory works, let’s consider a famous case in American jurisprudence, Brown v. the Board of Education of Topeka (1954). This unanimous landmark Supreme Court decision ruled unconstitutional racially segregated public schools on the grounds that they denied black children their right to an equal education. The decision was controversial because it marked a radical departure from standing precedent. In an earlier landmark decision, Plessy v.

Ferguson(1896), the same court had upheld Jim Crow statutes man-dating racially segregated facilities.

Which decision was right – Brown or Plessy? Both Plessy and Brownappealed to the Fourteenth Amendment of the Constitution (1868), which asserts that no state shall ‘deny to any person within its jurisdiction the equal protection of the laws’. Writing for the majority in Plessy, Justice Henry B. Brown argued that racial segre-gation as such did not stamp a ‘badge of inferiority’ on blacks and,

more important, he noted that Congress itself had passed a law requiring ‘separate schools for colored children in the District of Columbia’ (Arthur 1989: 218). It seemed evident to Brown that the same legislators who drafted the Fourteenth Amendment and passed the school bill presumed that there was no conflict between racial segregation and equal protection. Indeed, as Dworkin himself notes: ‘the floor manager of the civil rights bill that preceded the amendment told the House that “civil rights do not mean that all children shall attend the same school”’ (Dworkin 1986: 360).

From the standpoint of legal positivism and a morally minimal-ist understanding of the rule of law, the decision rendered in Plessy would seem to be the correct one. This does not mean that it was morallycorrect, but only that it was legally correct. But Dworkin, like the vast majority of American jurists today, disagrees. To see why, let’s look more closely at the Brown decision. Writing for the court, Justice Earl Warren noted that the intentions of those sup-porting the Fourteenth Amendment were so diverse – some propo-nents believed that the Amendment permitted segregated schools while others held that it ‘removed all legal distinctions’ among citi-zens – that appeal to such intentions alone rather suggests that the meaning of the amendment is at best ‘inconclusive’ with respect to the legality of segregated schools. But as Warren goes onto argue, even if the statutory meaning of the Amendment as intended by the framers had been conclusive – in presuming the compatibility of segregated schools and equal protection – this fact alone would not have exhausted the Amendment’s deeper moral and philosoph-ical meaning.

What is this meaning? Warren noted that ‘[s]eparate educational facilities are inherently unequal’ because – contrary to Justice Brown – their underlying intention is to stigmatize racial minorities as inferior by providing them inferior facilities. Echoing Justice John Harlan’s dissent in Plessy (‘the arbitrary separation of citizens . . . is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution’) [Arthur 1989: 219], Warren argued that, even if the separate facil-ities provided to blacks had been equal, separation alone would have stigmatized them as inferior, and this would have affected their moti-vation to learn. Conceding this sociological fact, however, does not yet show that equal facilities that happen to be motivated by racist intentions violate the Fourteenth Amendment’s equal protection

clause. If blacks receive the same education as whites, but in different schools, aren’t they receiving equal protection?

According to Dworkin, Warren’s unstated argument against this interpretation of the Fourteenth Amendment appeals to the Amendment’s deeper philosophical meaning, as this is reflected in the founding ideas of the American Constitution. These ideas revolve around the moral virtue embodied in the rule of law: respect for the dignity of individuals. The Fourteenth Amendment’s equal protection clause is really about protecting the equal dignity of everyone, regardless of race. Within the American context, this idea – of treating everyone with equal respect – entails that everyone has equal civil and political rights. Furthermore, it entails showing equal concern for everyone’s interests. Of course, what it means to give people equal civil and political rights and to show equal concern for their welfare is itself a matter of interpretation on which Dworkin has expended much energy. Yet however they are inter-preted, neither one of these two senses of showing equal respect for all – taken alone or separately – suffices to justify the Warren deci-sion. One can still imagine blacks being given equal rights and having their interests equally considered within the framework of ‘equal but separate’ education. So the principle of equal respect must include a fourth element: it must not be motivated by prejudices that aim at demeaning a select group of citizens (Dworkin 1986: 384).

Dworkin thus believes that this interpretation of equal con-cern and respect for all provides the best overall interpretation of the Fourteenth Amendment as a principled articulation of the American philosophy of government. However, Dworkin’s interpre-tation is itself neutral with respect to two approaches one might take with respect to the law: a blind approach and a colour-sensitiveapproach. An approach to the law that bans the use of all racial categories would be consistent with the Brown ruling, if we assumed that such categories have the effect – intended or other-wise – of demeaning selected racial groups. However, an approach that permits the use of racial categories could also be consistent with the Brown ruling, so long as they do not have – and weren’t intended to have – this effect. Indeed, as Dworkin argues, a colour-sensitive approach satisfying these conditions (the banned sources approach) might even be a better interpretation of the principle of equal respect and equal concern than the colour-blind approach, since it would permit affirmative action statutes that authorize giving racial

minorities admission preferences to schools of higher education in partial compensation for the continuing effects of past and present racial discrimination: ‘[If] race were a banned category because people cannot choose their race, then intelligence, geographical background, and physical ability would have to be banned cate-gories as well . . . So [a wise judge acting on legal principle] will reject the banned categories theory of equality . . .’ (ibid.: 394, 396).

Dworkin presumes that only one interpretation of the principle of equality fits with actual American jurisprudence and justifies that practice, namely the interpretation that permits treating different classes of persons differently for the sake of showing equal respect and concern for all. One does not show equal respect to blind people by allowing them to drive but rather by providing them with audible cues, signs translated into Braille, guide-dogs, and supplemental social security stipends for purchasing necessary aids. Similarly, one does not show equal respect and concern for blacks by merely allow-ing them to attend the same colleges that whites attend if the college admission policies still discriminate against them. In general, there is no principled way for the law to predict in advance which ‘unde-served’ natural and social differences have a bearing on persons’

capacities to be treated with equal respect and concern; therefore there is no way for it to rule categorically that racial categories are to be banned from the law but not categories pertaining to disabil-ity, innate intelligence, and so on.