Capabilities and Constitutional Law: ‘Perception’ against Lofty Formalism

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Notes

¹ This paper is adapted from Martha C. Nussbaum (2007) ‘Foreword: Constitutions and capabilities: “perception” against lofty formalism’, Harvard Law Review, 121, pp. 5–97.

² See ibid., pp. 24–33.

³ Martha C. Nussbaum (2007) ‘Liberty of conscience: the attack on equal respect’, Journal of Human Development, 8, pp. 337–358.

⁴ Brown v. Board of Education 347 U.S. 483 (1954).

⁵ Loving v. Virginia 388 U.S. 1 (1967).

⁶ U. S. v. Virginia 518 U.S. 515 (1996).

⁷ Goldberg v. Kelly 397 U.S. 254 (1970).

⁸ Ibid. at 267 — quoting Armstrong v. Manzo 380 U.S. 545, 552 (1965) (internal quotation marks omitted).

⁹ Ibid. at 264.

¹⁰ Ibid. at 264–265 — quoting the preamble to the US Constitution.

¹¹ Plyler v. Doe 457 U.S. 202, 210 (1982).

¹² Ibid. at 213.

¹³ Ibid. at 221.

¹⁴ Ibid. at 222.

¹⁵ Ibid. at 221 — quoting Wisconsin v. Yoder, 406 U.S. 205, 221 (1972) (internal quotation mark omitted).

¹⁶ Ibid. at 222.

¹⁷ San Antonio School District v. Rodriguez 411 U.S. 1, 37 (1973).

¹⁸ Ibid. at 71 and n. 2.

¹⁹ Ibid. at 112.

²⁰ Ibid. at 113.

²¹ Mills v. Board of Education 384 F. Supp. 866 (D.D.C. 1972).

²² Technically, because of the legally anomalous situation of the District, they held that it was a due process violation under the Fifth Amendment and that the equal protection clause in its application to education is “a component of due process binding on the District.”

²³ Ibid. at 876.

²⁴ 397 U. S. 254, 266 (1970).

²⁵ 384 F. Supp. 866, 876.

²⁶ Winkelman v. Parma City School District 127 S. Ct. 1994 (2007).

²⁷ Ledbetter v. Goodyear Tire and Rubber Company 127 S. Ct. 2162 (2007).

²⁸ National Railroad Passenger Corp. v. Morgan 536 U.S. 101 (2002).

²⁹ Bazemore v. Friday 478 U.S. 385 (1986).

³⁰ Ledbetter v. Goodyear Tire and Rubber Company 127 S. Ct. 2162, 2178 (Ginsburgh, J., dissenting).

³¹ Ibid. at 2179.

³² Ibid. at 2183 and 2182.

³³ Ibid. at 2179 (Ginsburgh, J., dissenting).

³⁴ On the role of narrative in good judgment, see Nussbaum, ‘Foreword,’ pp. 31–33 with references; and Martha C. Nussbaum (1995) Poetic Justice: The Literary Imagination and Public Life, Beacon Press, Boston.

³⁵ Parents Involved in Community Schools v. Seattle School District No. 1 127 S. Ct. 2738 (2007).

³⁶ Amartya Sen (1980) ‘Equality of What?’, in S.M. McMurrin (Ed.), Tanner Lectures on Human Values, vol. 1, Cambridge University Press, Cambridge, pp. 195–220.

³⁷ Parents Involved in Community Schools v. Seattle School District No. 1 127 S. Ct. 2738, 2820–2821.

³⁸ Parents Involved, 127 S. Ct. at 2836.

³⁹ Ibid. at 2797.

⁴⁰ Ibid. at 2798 (alterations in original) — quoting Anatole France (1922) The Red Lily, trans. W. Stephens, 6th edition (internal quotation marks omitted).

⁴¹ Ibid. at 2800 and 2835.

⁴² Ibid. at 2836.

⁴³ Ibid. at 2768.

⁴⁴ Ibid. at 2836.

⁴⁵ In Nussbaum, ‘Foreword,’ I show that the judgments discussed here have obvious similarities to the deeply flawed opinions on race in Plessy v. Ferguson, 163 U.S. 537 (1896) and on sexual orientation in Bowers v. Hardwick, 478 U.S. 186 (1986).