The Scope of Formal Equality of Opportunity

Abstract

Should a liberal constitution constrain the racially discriminatory actions of state as well as nonstate employers? This essay answers in the affirmative, arguing that once we take seriously the right to nondiscrimination on the basis of race in terms of employment, we realize that such a constitution must constrain the actions of both. In doing so, this essay draws from John Rawls’s four-stage sequence, a sequence that suggests one way philosophical principles translate into constitutional design. A Theory of Justice is the go-to theory for a wide range of political issues from a perspective of liberal theory, but scholars have paid less attention to it and comparative constitutional law. I take up this neglected inquiry by focusing on the distinction between the horizontal and vertical effect of a right not to be discriminated against on the basis of race in matters of employment. My analysis draws from the United States Constitution and the Constitution of the Republic of South Africa. A vertical effect constrains state power: a right to nondiscrimination is violated only when a state or public body discriminates on the basis of race. A horizontal effect constrains nonstate actors: a private employer may violate rights by discriminating on the basis of race. I argue that, in line with the South African Constitution, Rawls importantly adopts a horizontal effect of the right not to be discriminated against on the basis of race by ensuring formal equality of opportunity. His theory of justice suggests that a liberal constitution ought to constrain the racially discriminatory actions of both state and nonstate (private) employers. This, in turn, represents an important response to racism that occurs in the private sphere.