Governing for All in a Multiracial Democracy

(Illustration by Diana Ejaita)

For over 50 years, we have lived in a “democracy” defined by a stagnant Constitution, partisan gridlock, and rule by an appointed Supreme Court minority. Progress is stalled. At best, we rely on executive orders to deliver equal protection, due process, and the rights and privileges of citizenship (while, at worst, they take it away). We chafe at the irrefutable legal authority of a Supreme Court that operates without rules of ethics or accountability, forcing the legal community and legacy civil rights organizations to engage in a constant game of whack-a-mole, chasing democracy from one state court to the next.

We must do more than defend.

Realizing a Multiracial Democracy for All

Despite the revolutionary idea that all are created equal, the American promise of “We, the People” remains unfulfilled. This series, sponsored by PolicyLink, explores how each of us can carry forward the work of generations before us to realize a flourishing nation designed for all of its people.

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If our democracy is to survive this death by a thousand cuts, we must assume a new role as founders of a true multiracial democracy that delivers for all. We must remake the systems and structure of governing––the values, laws, practices, indicators, and legal standards—so that to serve all becomes the norm.

Three structures of governing will be foundational to this transformation: 1. a rule of law that puts equal protection for all people, in all places, at its core; 2. a consistent and rational body of laws that brings those values and principles to life through governing; and 3. a fair and functioning apparatus that distributes and ensures enforcement of the rules laid out by the body of laws.

1. A Rule of Law for Equal Protection

From the preamble of the Constitution to the Bill of Rights and the equal protection offered in the 14th Amendment, “rule of law” represents the promise of fairness and justice for all people, no matter one’s race, ethnicity, gender, religion, or other identity. But because the original design of our democracy did not include all of us, the injustice and inequity enabled by that exclusion endures: Native Americans face a higher likelihood of being killed by police
than any other racial or ethnic group. Women still earn 84 cents for every dollar earned by their male counterparts. Over 80 percent of the neighborhoods in large metropolitan areas were more segregated in 2019 than they were in 1990.

Though the Constitution was intended by the founders to be a living document that articulates the norms and values of freedom, fairness, and justice for a new nation—and though it has been amended 27 times—no new amendments have been added since 1971. Instead, the authority for advancing a multiracial democracy has been ceded to the politics of Congress and a five-person majority on the Supreme Court.

Achieving a multiracial democracy will require breaking free from this stasis by building on (and strengthening) the equal protection and due process clauses of the 14th Amendment, which states:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Whether by an amendment, legislation, or legal precedent, we need to establish and institutionalize a new legal standard to reframe equal protection. At present, the principle is that it is something which not to be denied. We need a legal standard that advances, expands, maximizes, and repairs it where warranted. We need a legal standard that places the burden of proof of fairness on the governing institutions, for example, that requires government to be proactive and accountable for outcomes, not just distribution of resources, that guarantees that citizens of our nation can thrive, that provides redress of past harms, and that enforces the laws with more than a complaint form.

Such a standard for equal protection would serve as a powerful catalyst for redesigning the systems and structures of our nation. Instead of moving towards race-neutral standards for equal protection, we would need proactive requirements for identifying and prohibiting disproportionate disadvantage for any class of citizens that bears disproportionate burden of governing and government decisions, including classes of citizens protected on the basis of race, ethnicity, national origin, gender, age, economic status, disability, marital status, age and even genetic code. With a new legal standard of equal protection, remedies for structural racism in governing policy and practice would serve every class of citizen that has been harmed by the past policies and would prevent future harm in the new policies of our nation. Government would not be prohibited from looking at race—as the current legal attacks on affirmative action mandate—but would require the examination of policy and regulatory consequences based on equitable and legally enforceable population-level outcomes for the lives and livelihoods of all citizens.

This is no small undertaking, of course! A campaign of this magnitude could take years, even decades. We won’t just wake up one morning and advance model legislation or a Constitutional Amendment that gives us a new legal standard of equal protection. But years spent advancing federal and state policy, influencing Executive orders, changing regulations, and creating legal precedent in the courts will be well spent. Because this work requires a new national culture of solidarity where we, the people, demand these changes in service of each other’s thriving, we will spend years organizing, messaging, collaborating, committing and recommitting over time, to the work of perfecting our democracy

2. A Consistent Body of Laws

A government for a thriving multiracial democracy must also have legal statutes and judicial norms that are clear, consistent, and rational enough to bring the word, the values, and principles of the rule of law to life through governing. “Good law” must be clear, consistent, and rational—applying to any of us as it applies to all of us, as legal schola Charles L. Black argued—but our laws that, in theory, provide equal protection are neither consistent nor rational. For example, we currently have laws at the federal level that include the right to vote for all people, which are then undermined by state laws that make it harder for some people to vote. As a result, the protections of the Voting Rights Act are diluted, the voices of many citizens go unheard, communities of color are underrepresented particularly in the south, and the power that should belong to the people is given instead to political parties who have the ability to advance discriminatory maps in support of partisan representation.

If equal protection was interpreted to be more than a thing not to deny, a body of laws that extended the right to vote for all people would enable, in every way possible, the ability of the people to exercise this right. For example, the Voting Rights Act could grant to everyone, in every state, the right to vote by mail, as well as provide stronger protection from gerrymandered congressional districts, and from inconsistent voter ID and voter registration practices.

Delivering a rational and consistent design of the laws of our nation requires both a near-term and a long-term strategy. In the near-term, we can offer standards of decision-making that advance and expand proactive, outcomes-centered policies in our body of laws. For example, governing structures like the Congressional Budget Office offer an opportunity for advancing equal protection in the legislative process. Recognizing this opportunity, PolicyLink and the Urban Institute have partnered to build “a new legislative scoring regime,” to ensure that federal legislation serves us all. Key civil rights statutes and recent executive orders give shape to the constitutional demands of equal protection, and equity scoring provides a measurable way to evaluate the federal government’s efforts to achieve this important mandate. The same is true for equity scoring in the budgeting process: including affirmative and outcomes-centered equity analysis in the tax and revenue proposals as an opportunity to advance a thriving multiracial democracy through legislative action.

Of course, the slim Congressional margins of the current political environment may make it impossible to mandate equity scoring in the near-term, but, again, on our way to a new legal standard we can build the tools and decision-making processes that advance accountability for policy outcomes. And in the long-term, we need to research and develop model legislation that will be enabled by a new affirmative and outcomes-based legal standard of governing. The 14th Amendment gives Congress the authority to deliver equal protection, and it is only through model federal legislation that mandates equal protection based on outcomes that a truly functioning multiracial democracy can be delivered.

3. Fair and Functioning Apparatus for Delivering Equal Protection

Even were we to achieve an equitable promise in the rule of law, and a rational body of laws that could translate that promise of equal protection into a set of rules, we would still need some system, structure, practice, or process of governing to ensure enforcement. Without a fair and functioning apparatus for delivery, the laws on paper will remain just that, failing to transform the promise of equal protection into a lived reality for all.

Consider, for example, how the Federal Reserve System regulates the banks and financial institutions that deliver capital and credit. In spite of the Fair Housing Act, the Equal Credit Opportunity Act, and the Community Reinvestment Act, people of color are still more likely than white borrowers to be denied a mortgage, a home improvement refinance loan, or even a cash out refinance of the homes they own. Within the Federal Reserve System, the Consumer Finance Protection Bureau (CFPB) has the responsibility to prevent and mitigate exactly these kinds of discriminatory outcomes in consumer lending. And yet, because equal protection here is reactive and complaint-based, and because the authority and capacity of the CFPB is limited to the extent to which Congress is willing to fund it, citizens facing the disparate outcomes of private banking policies must fend for themselves, using administrative complaint processes or private legal action for redress when faced with the limitations of governing.

Proactive legal standards for equal protection would build accountability for equitable outcomes into the regulatory processes that are administered by federal agencies like the CFPB. Such standards for regulatory analysis
should include: a clear definition and measurement of equity (that is operationalized in the regulatory review process); disaggregated data that identifies regulatory equity or regulatory disparity; analysis of cumulative burden over time that accounts for past harm; and identification of alternatives that address the root cause of inequity.

With a proactive, outcomes-based legal standard of equal protection, internal accountability systems of government could include higher standards of administrative accountability for equity. The Equity Action Plans currently required by Executive Order could be institutionalized in administrative practice. Government agencies would have the data, tools, capacity, and funding to make outcomes-centered, evidence-based decisions. Finally, the people would have the wherewithal and the invitation to demand accountability.

To realize the promise of a multiracial democracy, every governing institution must be able to produce decisions that proactively promote outcome-centered equal protection and due process. In the near-term, the data, tools, and methodologies that enhance the decision-making capacity of government are critical. In the long-term, we need an outcomes-based legal standard that guides the regulatory analysis process to deliver for the people.

Equity as the New Legal Standard

In the next founding of this democracy, we will need a proactive legal standard of equal protection to overcome the last fifty years of lawfare dismantling the rights and privileges of Black and brown people, Indigenous people, LGBTQ+ people, immigrants, workers and the poor. We will need an outcomes-based affirmative standard that requires human thriving, not just protection from discrimination and exclusion. We will need a standard that catalyzes, promotes, and delivers fair and just population-level outcomes for all people.

We can accept no less. The work of governing, like our work at PolicyLink, must be to deliver more than the win. It must deliver positive, tangible, measurable, and equitable impacts on the lived experience of American democracy,

For the past 50 years we have been on the defensive and attacks on equal protection range from challenges to down-payment assistance for Black and brown borrowers, to the authority of the National Labor Relations Board to enforce protections for collective bargaining. These attacks are so pervasive and well-financed that our legal advocacy and civil rights organizations must be engaged in a fundamentally defensive undertaking (one that has the potential to bankrupt the entire ecosystem of organizations that has protected, defended, and advanced our rights for over a century).

Consider for example the recent court ruling prohibiting the Minority Business Development Agency of the Department of Commerce from prioritizing business development services for businesses owned by people of color (including Black, Latino, Asian and Pacific Islander Americans, Native Americans, Alaska Natives, Asian Indians, and Hasidic Jews.) This ruling was issued by the court in spite of the fact that there is significant disparity in government contracting for businesses owned by people of color, and that Black and Latino businesses face higher loan rejection rates and lower loan amounts than their white counterparts. In spite of this disparity, the court ruled that the government must deliver equal distribution
and not equitable outcomes of business development services. This ruling is only one of many that interprets the legal precedent of equal protection as equal distribution.

Delivering a new legal standard of governing for all will be where “protect and defend” meets “build and advance.”

This is where the work of legal defense and amicus briefs that inform judicial thought meets the work of strategic and proactive impact litigation that builds and advances precedent for equitable outcomes of governing systems and structures. This is where the expertise of constitutional scholars and the leadership of our law schools meets the efforts of think tanks and research institutions working inside and outside of government at all levels.

This is the work of cementing a new set of expectations and ethos from citizens across the nation: the work of national, state, and local movement leaders, organizers, and activists that have the organizing power to help the citizenry imagine the change that is possible, believe it can be done, and take the actions to make progress real.

This is the work of planning, collaborating, and funding for the long-game—protecting our legacy organizations, supporting innovation, filling the policy and advocacy gaps, and casting a big tent. This is the long-term work of advancing a multiracial democracy: building, advancing, and institutionalizing a new legal standard that connects and binds the rule of law, the body of laws and the delivery apparatus of governing to deliver democracy for all.

Together, we can advance this vision—norm by norm, indicator by indicator, policy by policy, agency by agency, state by state––to build a truly liberating, multiracial American democracy in service to all people. No matter your sector, leadership position, or organization, this moment requires all of us to be the founders of a democracy that we have not yet experienced but is ours to claim.

Read more stories by Judith Dangerfield.