Irrational Inequality: The Role of Fact-Based Review in Equality Change
In Broken Records: Reconceptualizing Rational Basis Review to Address “Alternative Facts” in the Legislative Process, Joseph Landau offers an important exposition of how legislative records “predicated on a false factual foundation” are, and ought to be, treated by constitutional equality law. As Landau describes, “broken records” (i.e., legislative records predicated on a faulty factual foundation) have become ubiquitous in the modern polarized era, undergirding laws such as North Carolina’s “bathroom ban,” Alabama’s anti-immigrant H.B. 56, and the harsh criminal sentencing regimes that brought us mass incarceration. These “broken records”—often laden with stereotypes about the subordinated groups disadvantaged by the law—come apart under factual inquiry, as they are revealed to rest on spurious or demonstrably false premises.
This Response Essay suggests that the search for “broken records” is, as Landau suggests, important—and indeed is a part of a wider family of social movement strategies that has long been critical to effective equality change. This family of strategies—aimed at deconstructing “common sense” stereotypes about a subordinated group—relies on facts and social science expertise to undermine the reasons why people perceive discrimination as natural and justified. Because such perceptions of discrimination as justified often stand as a profound obstacle to the enforcement of even established equality rights, these fact-based strategies are a critical aspect of the way that equality work is done—indeed arguably one of the most important predicates to meaningful equality change.