The Vulnerable Subject and the Responsive State

by Martha Albertson Fineman

Image by skeeze from Pixabay

Abstract
“Since there is also no U.S. constitutional guarantee to basic social goods, such as housing, education, or health care, the anti-discrimination, sameness-of-treatment approach to equality prevalent in the United States is particularly problematic. The discourse of human rights that supports claims to such goods in European and other countries does not exist in America. We have not ratified many of the international agreements, including those associated with economic rights, as well as CEDAW and CRC. The courts are little help. In fact, attempts to apply human rights ideals internally—to American practices and laws—have been met with resistance, if not outright rejection. Several Justices of the Supreme Court decried references to human rights principles used to bolster arguments about constitutionality under American precedent to be the application of ―foreign fads when (superior) American constitutional provisions should prevail.


My development of the concept of vulnerability and the idea of a vulnerable subject began as a stealthily disguised human rights discourse, fashioned for an American audience. The concept has evolved from those early articulations, and I now think it has some significant differences as an approach, particularly in that a focus on vulnerability is decidedly focused on exploring the nature of the human part, rather than the rights part, of the human rights trope. Importantly, consideration of vulnerability brings societal institutions, in addition to the state and individual, into the discussion and under scrutiny. Vulnerability is posited as the characteristic that positions us in relation to each other as human beings and also suggests a relationship of responsibility between state and individual. The nature of human vulnerability forms the basis for a claim that the state must be more responsive to that vulnerability and do better at ensuring the ―All-American promise of equality of opportunity.

I. Introduction
Equal protection law under the United States Constitution requires that in order to be treated equally, individuals must be treated the same. This sameness-of-treatment version of equality ignores contexts, as well as differences in circumstances and abilities on the part of those whose treatment is compared. Most perplexing is the way in which the equal protection doctrine ignores existing inequalities of circumstances and presumes an equivalence of position, and possibilities. Such a narrow approach to equality cannot be employed to combat the growing inequality in wealth, position, and power that we have experienced in the United States over the past few decades.

Profound inequalities are tolerated—even justified—by reference to individual responsibility and the workings of an asserted meritocracy within a free market. The state is not mandated to respond to those inequalities, nor does it have to establish mechanisms to ensure more equitable distributions of either social goods or responsibilities between individuals, groups, and institutions. Quite the opposite: in the United States, the state is restrained from interference in the name of individual liberty, autonomy, and paramount principles such as freedom of contract.

Of course, in response to social movements and political pressure, American law does recognize that distortions and disruptions can exist even in systems deemed to be based on market and merit alone. The distortions recognized in our system are organized around discrimination historically found to be impermissible if based on certain individual or group characteristics. Because identities have been the focus of major civil rights struggles in American society, characteristics, such as gender, race, and religion, define which groups are those primarily protected by our equality laws. Note that it is not discrimination in general that is prohibited, only discrimination based on those designated distinguishing characteristics.

A person can be fired from employment on a whim, for any reason whatsoever, or be denied housing or access to goods and services so long as it is not the result of discrimination based on something like race or gender. This approach to inequality has set up a perverse dynamic that often results in pitting one protected group against another, dividing those who may otherwise be allies in a struggle for a more just society, as well as generating a politics of resentment and backlash on the part of those who perceive they are not within groups favored by this approach to equal protection. An additional perverse consequence of the current grievance process arises from the required elements of a legal claim for discrimination. In order to gain legal protection, claimants must establish a history of proven discrimination against the group with which they identify. Therefore, as a group identity-based construct, inequality is only confronted after it has accumulated a sufficiently lengthy history, and groups are pressured to exclude or include people in order to protect a narrative of long-standing discrimination.

This focus on individual and group characteristics and not on the distribution of wealth, power, opportunity, or social goods has affected the organization of interest groups in the United States, as well as the course of legal protection. Legal and political battles revolve around the question of whether a specific group seeking protection can be determined to constitute a discrete and insular minority that has historically been discriminated against, thus allowing an analogy to those groups currently protected based on classification such as race, gender, or ethnicity. This is what is now unfolding with lesbians and gay men, who are fighting to enter existing societal institutions, such as marriage or the military using claims of impermissible discrimination based on animus. Interest groups under existing equal protection doctrine have to be organized around identity categories, fighting to be included as a protected class.

From my perspective, one of the most troubling aspects of the identity approach to equality is that it narrowly focuses equality claims and takes only a limited view of what should constitute governmental responsibility in regard to social justice issues. In fact, nestled safely within the rhetoric of individual responsibility and autonomy, discrimination doctrine enshrines the notions that America provides for real equal access and opportunity and that discrimination is the discoverable and correctable exception to an otherwise just and fair system.

This approach to equality is particularly problematic since in the United States there is no constitutional guarantee to basic social goods, such as housing, education, or health care. The discourse of human rights that supports claims to such goods in European and other countries does not exist in America. We have not ratified many of the international agreements, including those associated with economic rights, as well as CEDAW and CRC. The courts are little help. In fact, attempts to apply human rights ideals internally—to American practices and laws—have been met with resistance, if not outright rejection. Several Justices of the Supreme Court decried references to human rights principles used to bolster arguments about constitutionality under American precedent to be the application of ―foreign fads when (superior) American constitutional provisions should prevail.

My development of the concept of vulnerability and the idea of a vulnerable subject began as a stealthily disguised human rights discourse, fashioned for an American audience. The concept has evolved from those early articulations, and I now think it has some significant differences as an approach, particularly in that a focus on vulnerability is decidedly focused on exploring the nature of the human part, rather than the rights part, of the human rights trope. Importantly, consideration of vulnerability brings societal institutions, in addition to the state and individual, into the discussion and under scrutiny. Vulnerability is posited as the characteristic that positions us in relation to each other as human beings and also suggests a relationship of responsibility between state and individual. The nature of human vulnerability forms the basis for a claim that the state must be more responsive to that vulnerability. It fulfills that responsibility primarily through the establishment and support of societal institutions. Additionally, those institutions are themselves vulnerable to a variety of internal and external corruptions and disruptions and this realization is the basis for the further claim that these institutions must be actively monitored by the state in processes that are both transparent and inclusive.”

Fineman, Martha Albertson, The Vulnerable Subject and the Responsive State. Emory Law Journal, Vol. 60; Emory Public Law Research Paper No. 10-130. Available at SSRN: https://ssrn.com/abstract=1694740

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