Abstract
Structural inequality is a widely invoked but often undertheorized concept in constitutional discourse. A persistent question in constitutional theory is whether structure itself is a subject of justice—and how, if at all, institutional arrangements that produce unequal distributions of liberty might demand corresponding remedies. The strained efforts of courts and legislatures in addressing structural inequality through individual rights-based frameworks underscore the need for a more robust theoretical account. This Article contributes to that effort by advancing a theory of “structural guarantees” grounded in principles of justification from the social contract tradition. Rather than focusing on abstract features of the state of nature, the theory identifies three foundational relationships formed when persons of equal moral standing constitute the state: (1) person-to-person, (2) person-to-collective, and (3) collective-to-all. Each relationship describes a distinct form of legitimacy within a constitutional order. Notably, the collective-to-all relationship addresses how institutional structures secure equal moral standing independently of individual rights and interpersonal duties. These structural guarantees are collective obligations embedded in the background rules of institutional arrangements and function as a normative constitutional principle. Structural guarantees have both conceptual and practical significance. This Article explores three illustrative domains: (1) the distinction between individual rights and structural guarantees in the Sixth Amendment’s “structural guarantee” to assistance of counsel; (2) constitutional challenges to inequitable school funding following San Antonio Independent School District v. Rodriguez (1973); and (3) the normative foundations for legislative proposals such as a universal basic income. Drawing on constitutional theory, distributive justice, and modern interpretations of the social contract, this Article offers a framework for understanding structural guarantees as a means of redressing entrenched inequalities in the distribution of liberty. The ongoing failure to recognize these guarantees allows legal and institutional structures to perpetuate disparities rooted in circumstances beyond individual control, limiting lawmakers and judges in fulfilling the Constitution’s commitment to equality under law.
Creative Commons License
This work is licensed under a Creative Commons Attribution-NonCommercial-No Derivative Works 4.0 International License.
Recommended Citation
Michael S. Cecil,
A Theory of Structural Guarantees: How the Constitution Combats Unequal Distributions of Liberty,
55
N.M. L. Rev.
331
(2025).
Available at:
https://digitalrepository.unm.edu/nmlr/vol55/iss2/3
