The Political Economy of Recognition: Affirmative Action Discourse and Constitutional Equality in Germany and the U.S.A.

5 Colum. J. Eur. L. 329 (1999)

Kendall Thomas. Professor, Columbia University Law School.

This paper undertakes a comparative exploration of affirmative action discourse in German and American constitutional equality law. The first task for such a project is to acknowledge an important threshold dilemma. The difficulty in question derives not so much from dissimilarities between the technical legal structures of German and American affirmative action policy. The problem stems rather from the different social grounds and groupings on which those legal structures have been erected. Because German “positive action” applies only to women, gender and its cultural meanings have constituted the paradigmatic subject of the policy. The legal discussion of positive action has always taken its point of reference from broader political debates about the position of women as a social group in contemporary German society. Indeed, in Germany, positive action discourse is a discourse about the status of and relations between men and women.

Like German positive action policy, U.S. affirmative law has from its inception included women among its beneficiaries. However, the background social vision and cultural meanings that have informed American affirmative action discourse could not be more different. Although affirmative action policy in the U.S. has always applied to women, questions of gender and gender equality have been marginal to the legal discourse that has grown up around the subject. For example, in the twenty years since the first of its many forays into the field, the U.S. Supreme Court has only once squarely considered the legality of gender-based affirmative action programs.2 Even then, the Court did not explicitly address the constitutional dimensions of gender-based affirmative action, but confined its discussion to the legitimacy of such programs under Title VII of the Civil Rights Act of 1964.

The relative silence regarding gender-based affirmative action that one finds in U.S. case law can also be seen in the broader political debates of which the Supreme Court’s jurisprudence is a part. In the United States, the discussion of affirmative action has revolved almost exclusively around race; conversely, the national conversation about racial equality has increasingly (and rather reductively) focused on affirmative action. To the extent that gender has figured at all in U.S. affirmative action discourse, it has for the most part been trapped in, or refracted through, the interstices of race. The peculiar and persistent prominence of race in American law and politics thus forces a comparative critical analysis of affirmative action discourse in the U.S. and Germany to follow a strategy of inference and indirection.

Accordingly, unlike the discussion of German law which follows it, the account of U.S. affirmative action policy developed here proceeds primarily through an analysis of Supreme Court case law on the constitutionality of race- based affirmative action. After a brief overview of the legal and political context in which U.S. affirmative action was born, I examine the vicissitudes of affirmative action policy in the constitutional jurisprudence of the Supreme Court. Although the relevant decisions have had little or nothing to say about gender as such, a reading of the cases suggests that gender-based affirmative action and contemporary equality doctrine are moving rapidly toward a constitutional collision. The crucial question is whether gender-conscious affirmative action programs will be able to withstand the impact that has so debilitated its race-based counterpart.

My survey of the American constitutional landscape clears the ground for the comparative observations offered in the paper’s final section. There I compare and contrast the U.S. judicial discourse on affirmative action with two recent judgments from the Court of Justice of the European Communities. Although it draws on a common conceptual lexicon, from an American perspective, the positive action jurisprudence of the ECJ seems to charting a very different course than the U.S. Supreme Court. This divergence, I argue, cannot be fully explained by the fact that the European Union (EU) positive action cases have focused exclusively on issues of gender equality. I suggest that the unique political dynamics of the European Union have prodded the ECJ closer toward a more substantive conception of constitutional equality. As we shall see, this structural understanding has (for the most part) been resisted in American law. However, given its still tentative character, one may well wonder whether the ECJ will embrace this substantive approach outside the context of gender. Using the current German debates about race, ethnicity and citizenship as an example, the paper ends with a few remarks on the challenges that EU positive action discourse will likely face in the coming years.