To Affirm Difference or To Deny Distinction?

Abstract

What are the global canons of constitutional equality analysis? Many scholars would say that there are none. National courts cannot seem to agree on whether the guarantee is formal or substantive, intersectional or discrete, open-ended or strictly textual. This Article takes a different tact. There are two budding strands of equality law reasoning: the categorical canons and the difference canons. The former prohibit pernicious distinctions in the law, while the latter affirm individual difference. The difference canons are the more cogent of the two. Categorical equality reasoning leads to underinclusive protection that is discordant with the actual experience of discrimination. Meanwhile, difference equality reasoning quashes budding social inequities before they fester into pernicious “isms.” Categorical courts thus ought to take a page from the difference canons.