The Language of Equality in a Constitutional Order

Like all languages, the language of American law can liberate or confine thinking. Its confining power is illustrated by the absence of the radical “group rights†claim in the Bakke litigation despite the prominence of that argument in the popular debate over affirmative discrimination. This absence establishes the limitations of the metaphor developed to give meaning to the concept “persons†in the equal protection context. While capable of investing the corporation with many of the attributes of “personhood†as defined by the Fourteenth Amendment, the metaphor makes absurd the claim of a racial group to exercise rights or privileges distinct from those of its members. This analysis illuminates the metaphorical structure of law language and concludes that the restricted range of metaphorical thinking in law weakens the law's capacity to mediate struggles over social goals.