Affirmative Action Versus Formal Equality: Can Democracies Arbitrate a Dispute Over the Meaning of Political Equality?

Affirmative action points to patterns of discrimination and inequalities to question the meaning of political equality but its opponents reject it as reverse discrimination. Formal equality is criticised for reproducing substantive inequalities at the expense of disadvantaged groups but most systems accept it as the standard norm. This dispute over the meaning of political equality challenges democracy’s claim of legitimacy because political societies cannot settle on decision-making rules everyone could accept as fair. With this paper, I set out to answer the following question: can we agree on basic democratic norms knowing that there are antithetical conceptions of political equality attached to different perceptions of substantive equality? I started by noticing that the meaning of political equality hosts a joint dispute over both social conditions and the decision-making rules that govern policymaking over these conditions. Group-centered interpretations of substantive equality challenge the standard norm of formal equality. Unless democratic societies settle on procedural rules that would be commonly accepted as legitimate, dissonance over outcomes will foster a dispute over the meaning of political equality that can strike at the heart of democracy’s claim of legitimacy. This paper argues that, with multiple life experiences and radical opinions on inequalities, democracies cannot resolve this dispute but can periodically arbitrate it to renew their claim of legitimacy. Inspired from the work of Anne Phillips (1991; 1995: 2007) on equal presence, I argue that, in view of multiple experiences and perspectives, the equal presence of all citizens is needed for the inclusion of the widest possible range of individual opinions and life experiences. Based on this position, I develop an argument for a progressive constitutional processes for deliberation on, and periodic reform of the baseline democratic rules based on the principle of equal presence, recognising that each individual has a unique experience of disadvantage and could form a distinct opinion about the meaning of political equality.