Brigham Young University Prelaw Review
Volume 19
Article 9
1-1-2005
The Right to Equal Concern and Respect: The
Foundation of Affirmative Action
Joshua Marshall
Follow this and additional works at: http://scholarsarchive.byu.edu/byuplr
BYU ScholarsArchive Citation
Marshall, Joshua (2005) "The Right to Equal Concern and Respect: The Foundation of Affirmative Action," Brigham Young University
Prelaw Review: Vol. 19, Article 9.
Available at: http://scholarsarchive.byu.edu/byuplr/vol19/iss1/9
This Article is brought to you for free and open access by the All Journals at BYU ScholarsArchive. It has been accepted for inclusion in Brigham Young
University Prelaw Review by an authorized administrator of BYU ScholarsArchive. For more information, please contact [email protected].
2005]
Affinnative Action: A "Helping Hand" 01· a ''Hand-out"?
39
equality is still progressing along with society. It is the best way co allow
everyone the universal right of life, liberty, and the pursuit of happiness.
The Right to Equal Concern and Respect:
The Foundation ofAffirmative Action
Joshua Marshall*
Affirmative action creates a just society only if irs factual realization anchors upon the fundamental principle of the right ro equal concern and
respecr.
resident Lyndon B. Johnson originally introduced affirmative action in
1965 when he stated, "we seek ... not just equality as a right and a theory, but equality as a fact and as a result." 1 As President Johnson noted, t:wo
ideas compose the definition of affirmative action: the principle of equality
and the faccicity of equality-equality as a fact present in the real world.
Affirmative action has within its scope the capacity to bring both ideals of
equality and of justice into the American society.
P
However, the success ro which affirmative action produces equality and
justice depends upon how closely its enforcement and court rulings remain
true to the principle from which affirmative action stems-namely the right
to equal concern and respect. Affirmative action creates a just society only if
its factual realization anchors upon the fundamental principle of the right to
equal concern and respect. First, chis essay focuses on the right ro equal concern and respect. Second, it focuses on how affirmative action moves from
principle to the factual realization of equality and justice in American society.
The Principle of Equal Concern and Respect
Legal philosophers often argue about the origins of law. Some theorists
believe that law seems from a social contract and enciclement to protection;
* Joshua James Marshall is a senior majoring in philosophy. He is from Boise,
Idaho. After receiving his undergraduate degree at Brigham Young University, Joshua
plans on going to medical school.
~----
~
~
42
Brigham Young University Prelaw Review
[Vol. 19
others hold that law's foundation comes from rules or from language. 2
Whatever the argument, one cannot hide char law intrinsically connects to
morality and principles. 3 For example, the laws derived from America's political institution clearly originate from principle-based elements essential
to human life .
Principle-based laws protect and liberate people by allowing them to realize their full potential as humans. First, the United Scares Constitution
states the principle char this nation's people hold essential to human life and
happiness. Second, the Constitution lists rules to ensure individuals' rights
co the aforementioned principle. The American Constitution also sets forth
specific rules directly derived from rights and principles that originate in life,
liberty, and happiness. Thus, law and particularly American law make as irs
foundation intuitive notions of what composes a complete human life- or
rather what defines a human being.< Intuitive notions of individual life, liberty, and happiness make their foundation upon principle and in particular
the right to equal concern and respect.
The right to equal concern and respect is the fundamental right of all
human beings. Governments which recognize individuals' rights to life liberty and happiness must uphold and protect the right to equal concern and
respect.s Affirmative action is a rule based on the right to equal concern and
respect. Therefore, affirmative acrion has the capacity to assist individuals to
enjoy a complete human life. However, affirmative acrion must hold the
right to equal concern and respect foundational to its existence; otherwise,
it loses all validity as a means to social equality.
The right to equal concern and respect means each individual has the
right ''to be treated equally without regard to his person or character or
castes," and it "is enforced by the fact that no one else can secure a better
Borgna Brunner, "Bakke and Beyond: A Hiswry and Timeline of Aftlrmative Action,"
http://www.infoplease.com/spot/affirmative l.h nnl (accessed 22 March. 2004).
' The particular legal rheorim rhar I refer ro include Jean Jacques Rousseau, H. L.A.
Han, and Jurgen Habermas.
' Ronald Dworkin, Taking Rights Serioush' (Cambridge: Harvard Universiry Press, 1978),
176, 177.
• Ronald Dworkin, Sovereign Virtue, (Cambridge: Harvard Universiry Press, 2000), 407.
Dworkin, Taking Rights, 76- 80, 182.
5 Ronald Dworkin, Taking Rights, 181.
1
2005]
The Right to Equal Concern and Respect
43
posmon by virtue of being different in any such respect. "6 The word
"equally" in this sense means that each person deserves respect regardless of
his or her social position; "equally" does not mean the equal distribution
of resources. This differentiation remains the most misunderstood part of
affirmative action.
Two different idealizations of affirmative action exist. The fLrSt idealization charges affirmative action with the role Qf distributing resources among
minoriry groups whose income remains below the majority. ff affirmative action's role is to equally allocate resources then this laws does not base itself
on the right to equal concern and respect.
The second idealization charges affirmative action to ensure individuals
treated with less respect than the majority of citizens receive the means to
raise their social position. T he fundamental principle of affirmative action
does not concern itself with the allocation of resources to poor citizens bur
rather concerns itself with ensuring that individuals receive equal treatment
and respect. Affirmative action holds validity only if its foundation rests on
rhe right to equal concern and respect.
The right to equal concern and respect acts as the foundation for affirmative action for three reasons. First, the right to equal concern and respect
is a condition of the social contract rather than a product of it.- Second,
equal concern and respect does not come by way of merit or inheritance but
simply by being human; 8 finally. equal concern and respect creates the standard from which political systems judge particular actions as just or unjust.
The right to equal concern and respect must exist as a prerequisite for a
viable social contract to operate according to justice. Without this principle,
laws skew justice and categorize humans according to individual character,
social position, and even others' perceptions. If individuals do not have the
right to equal concern and respect, a priori in a society, then they will fail to
receive adequate justice.
The United States Constitution bases its laws and government organization primarily as the right to equal concern and respect. This document
grotmds itself on the principle that "all men are created equal." The
6
Ibid., 179.
• Ibid., 18!.
' Ibid., 181 - 82.
Brigham Yotmg University Prelaw Review
42
[Vol. 19
others hold chat law's fmmdacion comes from rules or from language. 2
Whatever the argument, one cannot hide that law intrinsically connects ro
morality and principles.> For example, the laws derived from America's political institution clearly originate from principle-based elements essential
to human life.
Principle-based laws protect and liberate people by allowing them to realize their full potential as humans. First, the United States Constitution
scares the principle that this nation's people hold essential to human Life and
happiness. Second, the Constitution lists rules to ensure individuals' rights
to the aforementioned principle. The American Constitution also sets forth
specific rules directly derived from rights and principles that originate in life,
liberty, and happiness. Thus, law and particularly American law make as its
fow1dation intuitive notions of what composes a complete hwnan life-or
rather what defines a human being! Intuitive notions of individual life, liberty, and happiness make their foundation upon principle and in particular
the right to equal concern and respect.
The right to equal concern and respect is the fundamental right of all
hu man beings. Governments which recognize individuals' rights to life liberty and happiness m ust uphold and protect the right to equal concern and
respect. 5 Affirmative action is a rule based on the right to equal concern and
respect. Therefore, affirmative action has the capacity to assist individuals to
enjoy a complete human life. However, affirmative action must hold the
right to equal concern and respect foundational to its existence; otherwise,
it loses all validity as a means to social equality.
The right to equal concern and respect means each individual has the
right "to be treated equally without regard to his person or character or
tastes," and it "is enforced by the fact that no one else can secure a better
' Borgna Brunner, "Bakke and Beyond: A History and Timeline of Affirmarive Action,''
lmp://VI"vw.infoplease.com/spot/aHirmativel.hrml (accessed 22 March. 2004).
z The parricular legal theorists rhat I refer ro include Jean Jacques Rousseau, H. L. A
Hart, <md Jurgen Habermas.
' Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard Universiry Press, 1978),
2005]
43
posmon by virtue of being different in any such respect."" The word
"equally" in chis sense means that each person deserves respect regardless of
his or her social position; "equally" does not mean the equal distribution
of resources. This differentiation remains the most misunderstood part of
affirmative action.
Two different idealizations of affirmative action exist. The fust idealization charges affirmative action with the role of distributing resources among
minority groups whose income remains below the majority. If affirmative action's role is to equally allocate resources then this laws does not base itself
on the right to equal concern and respect.
The second idealization charges affirmative action to ensure individuals
treated with less respect than the majority of citizens receive the means to
raise their social position. The fundamental principle of affirmative action
does not concern itself with the allocation of resources to poor citizens but
rather concerns itself with ensuring char individuals receive equal treatment
and respect . Affirmative action holds validity only if its foundation rests on
the right to equal concern and respect.
The right to equal concern and respect acts as the foundation for affirmative action for three reasons. First, the right to equal concern and respect
is a condition of the social contract rather than a product of it.- Second,
equal concern and respect does not come by way of merit or inheritance but
simply by being human; 8 finally, equal concern and respect creates the standard from which political systems judge par-ticular actions as just or unjust.
The right to equal concern and respect must exist as a prerequisite for a
viable social contract to operate according to justice. Without this principle,
laws skew justice and categorize humans according to individual character,
social position, and even others' perceptions. If individuals do not have the
right to equal concern and respect, a priori in a society, then they will fail to
receive adequate justice.
The United States Constitution bases its laws and government organization primarily as the right to equal concern and respect. This document
grotmds itself on the principle that "all men are created equal." The
176, 177.
Ronald Dworkin, Sovereign Vt'rttte, (Cambridge: Harv;trd Universiry Press, 2000), 407.
Dworkin, Taking Rights, 76-80, 182.
s Ronald Dworkin, Taking Rights, 181.
4
The Right to Equal Concern and Respect
6
7
8
Ibid., 179.
Ibid., 181.
Ibid., 181- 82.
44
Brigham Young University Prelaw Review
[Vol. 19
Constimtion also entitles all men to protection of"certain inalienable rights."
Although America's political institution holds this principle as its foundation,
many areas of American society still do not function according to this principle. Thus, affirmative action helps to provide equal opportunity to an individual whose right to equal concern and respect has been compromised.
Second, all human beings hold the right to equal concern and respect by
virtue of being human. 9 All justice and fairness rests on rhe assumption that
men and women maintain a natural right to equality and respect. 10 When individuals lay claim to a right, they entide themselves "to protection against
the majority even at rhe cost of the general interest. " 11 Affirmative action as
an enforced rule helps bring about justice in any society that bases social position wholly or in part upon individual character, race, or preference.
Affirmative action, and its fundamental principle, transcends the American
political instiruttion and justifies its existence by virtue rhat it is uniquely
human.
Finally, the right to equal concern and respect is fundan1ental because it
is in the actual design of the political institutions themselves; this right is an
"intuitive notion" upon which all theories of justice can be rested. 1 ~ Although
discernible and unchanging, the principle is intuitive because it does not
translate easily from a validity claim into a factual realization. In other words,
one cannot point to a particular case in United Stares history and find the
right to equal concern and respect accurately defined as an absolute standard
to which all other cases refer back. 13 The principle does not rely on a factual
reality, but it identifies with intuition based on human phenomenology. The
American political institution designs its court system to allow a human judge
to deem certain cases just or unjust based not merely on rules bur on principle, although rules do help ro guide the decision. Affirmative action as a rule
makes its standard the intuitive principle of the right to equal concern andrespect from which the courts can claim a case either just or unjusr.
• Ibid., IS 1-82.
10
Ibid., 182.
II Ibid., 146.
12 Ibid., 182.
11
However, ofi:entimes a case is used as precedem or reference for the very facr rhar principles have diftlculry transferring from an ideal to a facrical reality.
2005]
The Right to Equal Concern and Respect
45
After the principle of equal concern and respect as the foundation of affirmative action was established, the problem arises of how to create adequate rules which translate this principle into a factual realization. To
properly address this problem, nvo idealizations need identification to explain the tension benveen the principle of the right to equal concern and respect and the factual realization of affirmative acrion. The nvo idealizations
are validity and facticity.
Facticity and Validity
Validity means "the way things ought to be;" facticity means "the way
things are-the factual realization in the world." 14 Law deals with this tension between facticity and validity-between what ought to be and the
facts. 1s On one hand, the law is a coercive force or facticity; on the other, it
needs to exercise coercive force by use of reason or validity. Thus, law accentuates the tension between facticity and validity, and affirmative action
is not exempt.
In his address, President Johnson identifies the tension between facti city
and validity. Validity refers to President Johnson's claim to "equality" while
facti city refers to the "facts and results." If the principle to the right to equal
concern and respect forms the foundation for affirmative action, then any
justification for an action to ensure equality among individuals must make
a validity claim that precisely identifies the individual's circumstance with
being denied the right ro equal concern and respect. Thus, the validity claim
that individuals make in regards to any factual incident of affirmative action
must be treated individually. Every situation differs.
Several conflicting Supreme Court rulings on aspects of affirmative action exist. In the Hopwood case, for instance, the justices found an aspect
of affirmative action unconstitutional, while in the Michigan court case of
2003 the Supreme Court upheld the case for affirmative action in higher
education. The problem that the Supreme Court faces with irs contradictory
rulings on affirmative action accentuates the tensions between validity and
facticity. In some situations affirmative action as a facrical rule may be just;
Jurgen Habermas, Between Facts and Norms. Trans. William Rehg (Cambridge: MIT
Press, 1998), 18, 19.
15
Brunner & Dworkin, Sovereign Virtu.e, 387.
14
44
Brigham Young University Prelaw Review
[Vol. 19
Constitution also entitles all men ro protection of"certain inalienable rights."
Although America's political institution holds this principle as its foundation,
many areas of American society still do not function according to rhis principle. Thus, affirmative action helps to provide equal opportunity ro an individual whose right ro equal concern and respect has been compromised.
Second, all hwnan beings hold the right to equal concern and respect by
virtue of being human.' All justice and fairness rests on the assumption that
men and women maintain a natural right to equality and respect. '" When individuals lay claim to a right, they entitle themselves "co protection against
the majority even at the cost of the general interest."' ' Affirmative action as
an enforced rule helps bring about justice in any society that bases social position wholly or in part upon individual character, race, or preference.
Affirmative action, and its fundamental principle, transcends the American
political institution and justifies irs existence by virtue that it is uniquely
human.
Finally, the right to equal concern and respect is fundamental because it
is in the actual desig11 of the political institutions themselves; this right is an
"intuitive notion" upon which all theories of justice can be tested. 11 Although
discernible and unchanging, the principle is intuitive because it does not
translate easily from a Yalidity claim into a factual realization. In other words,
one cannot point to a particular case in United Scares history and find the
right to equal concern and respect accurately defined as an absolute standard
co which all other cases refer back.n The principle does not rely on a factual
reality, but it identifies with intuition based on human phenomenology. The
American political institution designs irs court system to allow a human judge
to deem certain cases just or unjust based not merely on rules bur on principle, although rules do help co guide the decision. Affirmative action as a rule
makes its standard the intuitive principle of the right co equal concern and respect from which the courts can claim a case either just or unjust.
" Ibid., 181-82.
ID Ibid., 182.
II Ibid., 146.
" Ibid. , 182.
11
However, oftentimes a case is used as precedent or reference for the very fact that principles have difficulty transferring from an ideal ro a metical realiry.
2005]
The Right to Equal Concern and Respect
45
After the principle of equal concern and respect as the foundation of affirmative action was established, the problem arises of how to create adequate rules which translate this principle imo a facrual realization. To
properly address rhis problem, two idealizarions need identification to explain the tension between the principle of the right to equal concern andrespect and the factual realization of affirmative action. The two idealizations
are validity and facticity.
Facticity and Validity
Validity means "the way things ought to be;" facticity means "the way
things are-the factual realization in the world."'" Law deals with chis tension between facticity and validity-between what ought to be and the
facts.•s On one hand, the law is a coercive force or facticity; on the other, it
needs to exercise coercive force by use of reason or validity. Thus, law accentuates the tension between facticity and validity, and affirmative action
is not exempt.
In his address, President Johnson identifies the tension between facticity
and validit:v. Validit:v refers to President Johnson's claim to "equality" while
facticitv refers to th~ "facts and reSlllrs." If the principle to the right to equal
cancer~ and respect forms rhe foundation for affirmative action, then any
justification for an action to ensure equality among individuals must make
a validirv claim that precisely identifies the individual's circumstance with
being d~nied the right ro equal concern and respect. Thus, the validity claim
that individuals make in regards to any factual incident of affirmative action
must be treated individually. Every situation differs.
Several conflicting Supreme Court rulings on aspects of affirmative action exist. In the Hopwood case, for instance, the justices found an aspect
of affirmative action unconstitutional, while in the Michigan courr case of
2003 the Supreme Court upheld the case for affirmative action in higher
education . The problem that the Supreme Court faces with its contradictory
rulings on affirmative action accentuates the tensions benveen validity and
facticity. In some situations affirmative action as a factical rule may be just;
14
Jurgen Habermas, Between Facrs and Norms. Trans. \X'illiam Rehg (Cambridge: MIT
Press, 1998), 18, 19.
'; Brunner & Dworkin, Sot1ereign Firttll!, 387.
46
Brigham Young University Prelaw Review
[Vol. 19
in others it may nor be. If rhe practice of affirmative action does not match
up to the principle upon which affirmative action bases itself, the Supreme
Court would be right in ruling that a particular instance of the facticity of
affirmative action is unconstitutional and vice versa.
Reverse discrimination appeals are due to the factical nature of affirmative action. If affirmative action diverges too far from the original validiry
claim chen a resultant facriciry will appear that is not representative of affirmative action as a substituent of the right to equal concern and respect. How
the validity claim to the right to equal concern and respect operates in the
real world is never constant. In the Supreme Court ruling of Gnttter v.
Bollinger, Justice Sandra Day O 'Connor stated, "We expect that 25 years
from now, the use of racial preferences will no longer be necessary to further
the interest approved today."'" Justice O'Connor made this sratemenr in
2003, and this statement remains true today. Affirmative action brings about
a just society in America. Segmems of American society still favor one person over another due to individual character, race, or preference.
Any sound argument against affirmative action has only two options as a
main premise. The first argumem holds that affirmative action in American
sociery as a fact present in the real world is so far removed from its parent
principle that it no longer upholds individuals' right to equal concern and respect. The second premise attacking affirmative action must argue that
American sociery no longer needs affirmative action because instances of
compromising individuals' right to equal concern and respect are rare or nonexistent. Neither of these argwnents is sound- places in our American sociery still afford less opponuniry for social improvemem because of individual
character, race, or preference. Moreover, the American judicial system still
provides accurate rulings on affirmative action that are intuited from the
principle of the right to equal concern and respect.
Conclusion
Affirmative action illustrates how law depends, not only on rules which
strive to realize law within an acrual reality, bur also on rights and principles. Affirmative action is a valid law because it stems from the basic human
'" NPR, "Split Ruling on Affirmative Acrion," hrtp://www.npr.org/news/specials/
michigan (accessed Feb., 2005).
2005]
The Right to Equal Concern and Respect
47
principle of the right to equal concern and respect. However, affirmative action as a fact present in real world will bring about justice only if the particular instance of affirmative action bases itself on the principle of the right
to equal concern and respect. American society has not yet completely realized the principle of the right to equal concern and respect as a fact. Thus,
affirmative action is a legitimate option to help people created with less
equality and respect an opportuniry to advance in social posicion that otherwise would not be available.
46
Brigham Young University Prelaw Review
[Vol. 19
in others it may not be. If the practice of affirmative action does not march
up to the principle upon which affirmative action bases itself, the Supreme
Courr would be right in ruling that a parricular instance of the facticity of
affirmative action is unconstitutional and vice versa.
Reverse discrimination appeals are due to the factical nature of affirmative action. If affirmative action diverges roo far from the original validity
claim chen a resultant facticity will appear that is not representative of affirmative action as: a substituent of the right ro equal concern and respect. How
the validity claim ro the right ro equal concern and respect operates in the
real world is never constant. In the Supreme Court ruling of Grutter v.
Bollinger, Justice Sandra Day O 'Connor stated, "We expect that 25 years
from now, rhe use of racial preferences will no longer be necessary to further
the interest approved today."H' Justice O'Connor made this statement in
2003, and this statement remains true today. Affirmative action brings about
a just society in America. Segments of American society still favor one person over another due to individual character, race, or preference.
Any sound argument against affirmative action has only cwo options as a
main premise. The first argument holds that affirmative action in American
society as a fact present in the real world is so far removed from its parent
principle that it no longer upholds individuals' right to equal concern and respect. The second premise attacking affirmative action must argue that
American society no longer needs affirmative action because instances of
compromising individuals' right to equal concern and respect are rare or nonexistent. Neither of these argumenrs is sound-places in our American society still atford less opportunity for social improvemenr because of individual
character, race, or preference. Moreover, the American judicial system still
provides accurate rulings on affirmative action that are intuited from the
principle of rhe right to equal concern and respect.
Conclusion
Affirmative action illustrates how law depends, not only on rules which
strive to realize law within an actual reality, but also on rights and principles. Affirmative action is a valid law because it stems from rhe basic human
•• NPR, "Split Ruling on Affirmative Action," htrp://wv,'\v.npr.org/news/specials/
michigan (accessed Feb., 2005).
2005]
The Right to Equal Concern and Respect
47
principle of the right to equal concern and respect. However, affirmative action as a fact present in real world will bring about justice only if the particular instance of affirmative action bases itself on the principle of the right
to equal concern and respect. American society has not yet completely realized the principle of the right to equal concern and respect as a fact. Thus,
affirmative action is a legitimate option to help people treated with less
equality and respect an oppormnity to advance in social position that oth-
erwise would not be available.