The Trouble with Classifications

Aziz Z. Huq*

The Supreme Court relies increasingly on anticlassification rules to implement the Constitution’s various commands of evenhanded state treatment. These rules direct attention to whether an instance of a forbidden classification is present on the face of a challenged law. They contain two necessary steps. First, a court defines a general category of impermissible terms. Second, a court ascertains whether an instance of the category is found in enacted text—so triggering the familiar strict scrutiny analysis. So defined, anticlassification rules now dominate equal protection, free speech, “dormant” Commerce Clause, and even free exercise jurisprudence. The Roberts Court celebrates these doctrinal tests as “commonsense,” citing their administrability and mechanical quality as safeguards against problematic judicial discretion.

This Article challenges this account of anticlassification rules as simple and transparent. It draws extensively on conceptual tools from the philosophy of language to elucidate the inherent complications and internal tensions of the doctrine. Defining and drawing bounds around categories such as “race” and “content discrimination,” for example, cannot be done without a theory of what philosophers of language call “natural kinds” and “social kinds.” Yet when courts identify instances of impermissible categories in legal text, they tend to fluctuate erratically between semantic and communicative theories of meaning. A careful examination of these, and other, hidden premises of anticlassification clarifies apparent doctrinal inconsistencies. Absent a systematic theorizing of such difficulties, anticlassification rules cannot be coherently or consistently applied. Reckoning with these difficulties suggests that the Court’s main normative justifications for anticlassification have a narrower reach than commonly appreciated.

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© 2024 Aziz Z. Huq.  Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Frank and Bernice J. Greenberg Professor of Law, University of Chicago.  This research was supported by the Frank J. Cicero Fund.  I am grateful to the editors for their careful work on this article.