Discrete and Insular Minorities

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The idea of the "discrete and insular minority" originated in the now famous footnote four of the opinion in united states v. carolene products company (1938). Justice harlan f. stone, writing for only a plurality of the Court, queried—without answering the question—"whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry." In the wake of the Court's about-face in 1937, Justice Stone was serving notice that the Court might not accord the same deference to statutes directed at "discrete and insular minorities" that it would to statutes directed at economic regulation.

The Court made little use of the concept until the early 1970s, when it began to delineate the class characteristics of such groups. Included were groups that had been "saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process." Although race, nationality, and alienage seem to have been firmly established as class characteristics of the "discrete and insular minority," the Court has refused to extend such class status to illegitimates, the poor, or conscientious objectors.

regents of the university of california v. bakke (1978) presented the question of the "discrete and insular minority" in a new light. The question in Bakke was whether the same "solicitude" should be applied to test a governmental action designed to benefit rather than injure a "discrete and insular" minority. The university, citing Carolene Products, argued that strict scrutiny was reserved exclusively for "discrete and insular minorities." Four Justices agreed that a white male needed no special protection from the political process that authorized the actions of the university. Justice lewis f. powell rejected this argument: "the "rights created by the … fourteenth amendment are, by its terms, guaranteed to the individual. The rights established are personal rights.…' The guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color."

In fullilove v. klutznick (1980) the Court, for the first time since the japanese american cases (1943–1944), upheld a racial classification that was expressed on the face of a law. Fullilove involved a challenge to an act of Congress authorizing federal funds for local public works projects and setting aside ten percent of those funds for employment of businesses owned by Negroes, Hispanics, Orientals, american indians, and Aleuts. Chief Justice warren e. burger, writing for a plurality, called for judicial deference to Congress's power under section 5 of the Fourteenth Amendment, as equivalent to "the broad powers expressed in the necessary and proper clause. …"The irony was that the idea of the "discrete and insular minority" in its inception was designed to curtail such deference when racial classifications were involved.

benign racial classifications, it is sometimes said, are justified because they do not involve the stigma of invidious discrimination. The recipients of the benefits that accrue from the "benign" classification are not branded as members of an "inferior race" as they would be if the classification were an invidious one. This theory erects "stigma" as the standard for equal protection rights. Absent any such stigma the implication is that the Constitution is not offended, even if individuals must bear burdens created by a classification that otherwise would be disallowed by the equal protection clause. As Burger stated in Fullilove, "a sharing of the burden' by innocent parties is not impermissible." To use the idea of stigma as a racial class concept is, in effect, to translate equal protection rights into class rights.

But the intrusion of class into the Constitution is a dangerous proposition, one that is at odds with the principles of the constitutional regime—principles ultimately derived from the proposition that "all men are created equal." Class considerations explicitly deny this equality because they necessarily abstract from the individual and ascribe to him class characteristics that are different—and necessarily unequal—from those of individuals outside the class. A liberal jurisprudence must disallow all class considerations. When there is a conflict between two different "discrete and insular minorities," which should be accorded preference? No principle can answer this question. And the question is not merely theoretical. The Court has already faced this dilemma in cases such as united jewish organizations v. carey (1977) and Castenada v. Partida (1977), and in a pluralistic society it is inevitable that many more such cases will arise. Equal protection can be the foundation of a genuine liberal jurisprudence only if it applies to individuals. As Justice john marshall harlan remarked in his powerful dissent in plessy v. ferguson (1896), the case that established the separate-but-equal doctrine, "[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law." This is undoubtedly still the essential principle of liberal government.

james madison argued, in the federalist #10, that in a large, diverse republic with a multiplicity of interests it was unlikely that there would ever be permanent majorities and permanent minorities; thus there would be little probability that "a majority of the whole will have a common motive to invade the rights of other citizens." On this assumption, the majorities that do form will be composed of coalitions of minorities that come together for limited self-interested purposes. The majority will thus never have a sense of its own interest as a majority.

By and large, the solution of the Founders has worked remarkably well. There have been no permanent majorities, and certainly none based exclusively on race. Understanding American politics in terms of monolithic majorities and "discrete and insular minorities"—as the Supreme Court appears to do—precludes the creation of a common interest that transcends racial class considerations. By transforming the Fourteenth Amendment into an instrument of class politics, the Court risks either making a majority faction more likely by heightening the majority's awareness of its class status as a majority, or transforming the liberal constitutional regime into one no longer based on majority rule.

Edward J. Erler


Ely, John H. 1980 Democracy and Distrust: A Theory of Judicial Review. Pages 75–77 and 135–179. Cambrige, Mass.: Harvard University Press.

Erler, Edward J. 1982 Equal Protection and Personal Rights: The Regime of the "Discrete and Insular Minority." Georgia Law Review 16:407–444.

Karst, Kenneth L. and Horowitz, Harold W. 1974 Affirmative Action and Equal Protection. Virginia Law Review 60:955–974.