Under What Circumstances is “Caste” Likely to Be Useful as an Analytic Concept (and Should We Care)?
Sanford Levinson & Robert L. Tsai
This Essay is the product of the 2025 “Constitutional Law Schmooze,” where academics from a variety of disciplines and from all over the country meet to discuss a common topic of constitutional law chosen by the moderator. This year’s topic was “caste.” The two of us, having written independent “tickets” of admission for the schmooze—i.e., short essays setting out our tentative thoughts about “caste”—turned out to be relative skeptics about the value of the term for lawyers. We are certainly not hostile to those who differ with us. This should be regarded as a “friendly dissent,” as distinguished, say, from some of the dissents issued by the late Antonin Scalia in which he accused those who disagreed with him of not truly being lawyers.
More precisely, we agreed to combine our initially separate “tickets” into this “joint dissent” where the question is whether it is a good idea to rely on “caste” as a mode of analyzing American politics or, even more to the point, American law. Constitutionally, that is most likely to involve the Fourteenth Amendment; statutorily, one can look as easily at employment law attempting to limit discrimination. Our short answer: This is an important debate to be having. Our own limited contribution is that there are tradeoffs to keep in mind about how to address the various tangled problems involved when using the term. At the end of the day, we are more struck by the costs than the benefits of relying on “caste” as a mode of analysis.
Our Essay proceeds in several stages. First, we briefly set the stage by describing recent efforts to add “caste” as a new category in equality law. Second, we note some general limits to arguments by analogy and delve more deeply into some of the differences between the caste system in India and the system of American slavery and segregation implemented after abolition. Third, we worry that taking the anti-caste approach seriously might require a more robust consideration of the continuing value of liberal pluralism. Fourth, we ruminate on the risk that the anti-caste project could lead to a proliferation of groups and conditions problematically characterized as “backward,” which might have the counterproductive effect of fixing social status more firmly in the political imagination while obscuring subtleties in material inequality. Fifth, and finally, even when caste is used as a trope purely for purposes of political mobilization, concerns of intelligibility and persuasiveness are worth keeping in mind.