The Law of Narrow Tailoring
Owen Fiss * | 23.5 | Essay | Citation: Owen Fiss, The Law of Narrow Tailoring, 23 U. Pa. J. Const. L. 879 (2021)
In 1954 the Supreme Court, then led by Earl Warren, declared that segregated education constituted a denial of equal protection. In so doing, the Court set in motion the Second Reconstruction, and, over the next two decades, infused it with energy and vision. As part of this endeavor, the Court affirmed sweeping decrees requiring the desegregation of public schools and other state institutions, protected activists in the Civil Rights Movement, and facilitated the participation of the political branches in the process of eradicating the nation’s racial caste structure.
By the mid-1970s, and continuing for almost fifty years, the Court changed its stance toward reconstruction. It did not openly repudiate Brown v. Board of Education, but rather sought to limit that ruling and to deprive it of any generative meaning. To pursue this policy, a number of Justices whose votes were essential to the formation of a majority decided to set aside a measure designed to eradicate caste on the ground that it was not narrowly tailored. This occurred in cases that proved to be inflection points in the history of the Second Reconstruction and as a result their position endowed the law of narrow tailoring with a special prominence and significance.
One branch of the law of narrow tailoring regulates the scope of judicial remedies. It requires that injunctions be confined to protecting against specific and clearly defined wrongs. Another governs the interpretation and application of the Equal Protection Clause. It requires that any law employing a racial classification—even one that seeks to ameliorate the position of the underclass—be narrowly tailored to serve a compelling public purpose.
Stated in these terms, the law of narrow tailoring has a technical, largely instrumental character—insisting on a tight relationship between means and ends. In truth, however, on decisive occasions that occurred in the era that began in the 1970s the narrow tailoring requirement was turned into a general oppositional strategy to limit the reach of Brown v. Board of Education and the reform of American society that it decreed. As such, it was infused with contested political or moral notions that are, as far as I can tell, not rooted in the Constitution and that are, in any event, at odds with the overarching purpose of the Civil War Amendments. In the end, we are left to wonder whether the law of narrow tailoring might be reformulated in a way that confines the narrow tailoring requirement to its original and more salutary purpose and avoids these abuses.
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* Sterling Professor Emeritus of Law, Yale University. This essay grew out of discussions in my 2020 “A Community of Equals” Seminar. I am grateful to the students in that seminar and to one in particular—Sarah Walker—for the strength and clarity of her exceptional editorial assistance.