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The
Meaning of Equality
Constitution and Law Series
By Timothy B. Lewis - 6/18/04
There are several words that carry instant credibility and which
drive much of the political debate about what the law should or
should not do. In the prior article I discussed one of these
words, “justice.” Here I discuss a related word, “equality.”
The Declaration of Independence– What did the Term “Equality”
Mean There?
Probably the most famous expression of equality appears in the
Declaration of Independence where it says:
“We hold these truths to be self evident that all men are
created equal, that they are endowed by their creator with
certain unalienable rights, that among these are life, liberty
and the pursuit of happiness.”
What did Jefferson and the other signers mean by this type of
equality? Grammatically, the sentence builds from the most
general to the most specific and each successive refinement
clarifies what was said earlier and meant by the word “equal.”
In other words, the opening declaratory statement said that God
created all men as being equal. But how are they naturally
equal? The second phrase answers: they are equal in that they
are each endowed with the same unalienable rights. And what are
these unalienable rights? The third phrase answers: life,
liberty and the pursuit of happiness.
Certainly they did not mean that everyone was created equal in
talents, intellect, drive, abilities or that everybody should be
equal when it comes to material wealth. As discussed in the
prior article on property rights, Jefferson, would not equate
the modern welfare state with either equality or happiness.
Equality Under The Law
In 1689, John Locke said:
“[F]reedom of men under government, is, to have a standing rule
to live by, common to every one of that society, and made by the
legislative power erected in it; a liberty to follow my own will
in all things, where the rule prescribes not; and not to be
subject to the inconstant, uncertain, unknown, arbitrary will of
another man.” [1] (emphasis added)
In an earlier article I introduced the great English legal
scholar, William Blackstone, who distinguished “civil liberty”
from “natural liberty.” I will repeat the quote in a little more
extended version to make a relevant point here. He defined
“civil liberty” as:
"no other than natural liberty, so far restrained by human laws
(and no farther) as is necessary and expedient for the general
advantages of the public....In this definition of civil liberty
it ought to be understood, or rather expressed, that the
restraints introduced by the law should be equal to all, or as
much so as the nature of things will admit." [2] (emphasis
added)
Ultimately, Madison said the spirit of freedom which actuates
America would not allow for unequal treatment under the law.
Said he:
“If this spirit shall ever be so far debased as to tolerate a
law not obligatory... on [all] the people, the people will be
prepared to tolerate any thing but liberty.” [3]
I have always appreciated artistic depictions of Lady Justice as
a blindfolded woman with a sword in one hand and balance scales
in the other. The blindfold implies that the law will be equally
administered with no advantage or disadvantage given based upon
who the parties are before the court – their individual
characteristics like rich/poor, black/white, male/female,
young/old, handsome/ugly, etc. are to be ignored before the bar
of justice and justice (the sword) will be administered after
all relevant evidence is fairly weighed and considered (the
balance scales) and the law uniformly applied to the conclusions
of fact drawn by the judge and jury.
Most people would endorse the idea of equality under the law
because if we do not try to achieve equality under the law, then
our law becomes arbitrary and capricious and we lose respect for
it. And when people lose respect for the law, they do not feel
strongly inclined to voluntarily comply with it. Consequently,
order, peace and safety diminish throughout society as people
tend to become “laws unto themselves.” Individual freedom
expands beyond reasonable civic bounds and conversely, feelings
of personal honor, duty, responsibility, and civic obligation
diminish. Hence, a critical component of human legal systems is
an attempt to apply the law equally to all. It should avoid the
creation of differential legal privileges that one group enjoys
while others do not. Unfortunately, we have been departing from
this type of equality lately in the pursuit of other types of
“equality” and the ever-elusive notion of “social justice.”
The foregoing types of equality -- equality under the law and
equality with respect to our natural God-given rights of life,
liberty and the pursuit of happiness -- make intuitive sense to
most people. But let’s now consider other types of equality and
see what other worthy societal goals and objectives have to be
sacrificed in order to achieve them.
The Dangers of Politicizing Inequality
Thomas Sowell observed that many people:
“assume that politicizing inequality is free of costs and
dangers, when in fact such politicization can have very high
costs and very grave dangers....Processes designed to create
greater equality cannot be judged by that goal [alone] but must
be examined in terms of the processes created [and results
caused] in pursuit of that goal. It is the nature of these
processes – including their addictiveness and the never-ending
strife they can engender if equality proves to be impossible to
achieve – which creates the dangers.” [4]
He asks: “what are we prepared to do, to risk, or to sacrifice,
in pursuit of what can turn out to merely be a mirage?” [5]
Equality vs. Egality
Balint Vazsonyi (the Hungarian refugee who was introduced in the
prior article) said:
“‘E3galite3, Fraternite3, Liberte3’or ‘Egality, Fraternity,
Liberty’ – these were the slogans the French Revolution of 1789
emblazoned on its banner...
“Note that I translate the French slogan ‘E3galite3’ as ‘Egality,’
and not as ‘Equality.’ Webster’s Dictionary tells us that
egality is ‘an extreme social and political leveling.’ Our word
‘egalitarian’ confirms that definition. The process of leveling
is worlds apart from equality in the affairs of man, which was
the aspiration of the Round Table. Nothing illustrates the point
more graphically than the instrument, used indiscriminately by
the French, to accomplish this leveling. If someone’s head
appeared to stand out, it was simply chopped off by the
guillotine. Enforced egality became the primary tool applied to
the living by those who made themselves masters of life and
death....
***
“Egality is the elimination of differences. Since people are
different, only force can cover up the differences, and then
only temporarily. Once force is no longer applied, the
differences reappear....
***
“Thomas Jefferson could not have failed to note the differences
that render people unequal. And because he observed that
political institutions elsewhere made people permanently
unequal, he placed his faith in a political creation. He hoped
to set this nation – and through it, the world – on a path that
could free everyone of the impediments of inequality. He, and
others of his persuasion, believed that we are equal in the eyes
of God. But precisely because we appear unequal in every other
respect, it is only in the eyes of the law that we may become
equal on earth. He, and others of his persuasion, realized that
if a permanent framework of fundamental law were to be applied
equally, living within such a framework would unlock individual
potential to the fullest. Equality would be achieved in the
sense that every person could rise to the highest level which
that person’s talent, industry, and aspiration allowed.
“Nothing needed to be eliminated but the obstacles in the way of
the individual.
“Institutions and guarantees needed to be established so that
citizens could not be denied the opportunity to achieve their
highest possible status in society and, once achieved, it could
not be taken away. That is equality in the practical sense.
“In order to secure such conditions, the legal framework had to
be fair. The Legal framework had to be constant. The legal
framework had to permit no exceptions.
“This we call the Rule of Law.” [6]
Equality of Outcome vs. Freedom
Lord Acton said:
“The finest opportunity ever given to the world was thrown away
because the passion of equality made vain the hope for freedom.”
[7]
F. A. Hayek observed:
“Democracy and socialism have nothing in common but one word:
equality. But notice the difference: while democracy seeks
equality in liberty, socialism seeks equality in restraint and
servitute.” [8]
Milton Friedman said:
“A society that puts equality – in the sense of equality of
outcome – ahead of freedom will end up with neither equality nor
freedom. The use of force to achieve [this type of] equality
will destroy freedom, and the force, introduced for good
purposes, will end up in the hands of people who use it to
promote their own interests.” [9]
Roger Kimball observed: “Equality works to level differences;
freedom to increase them.” [10]
Occasionally as a teacher, I come across exceptional essays from
my students. Consider one that deals with this particular
trade-off from a former student named Meredith Taylor:
“It is freedom from equality that gives those who want to
achieve, the opportunity to excel to their highest abilities. It
is this beauty of freedom from equality that makes America the
land of opportunity and creativity.”
“Economic Equality” vs. “Political Equality”
Madison observed that political equality would not lead to any
other type of equality. Said he:
“[Because of the mischief of factions,] democracies have ever
been spectacles of turbulence and contention; have ever been
found incompatible with personal security or the rights of
property; and have in general been as short in their lives as
they have been violent in their deaths.
“Theoretic politicians, who have patronized this species of
government, have erroneously supposed that by reducing mankind
to a perfect equality in their political rights, they would, at
the same time, be perfectly equalized and assimilated in their
possessions, their opinions, and their passions.” [11]
As discussed in a prior article, Madison called governmental
attempts to equalize the division of property among the people,
a “wicked project.” [12]
Thomas Sowell adds:
“Economic equality...may be achievable only by political
measures which require vast concentrations of power in a
relatively few hands in government – and even this momentous
exchange of economic inequality for political inequality may
leave untouched the vast spectrum of other inequalities in
intelligence, talent, physical appearance, charm, articulation,
etc., which may have more influence on many individuals’
prospects of happiness than the economic inequalities that have
been addressed at such high cost.” [13]
Equality vs. Justice
Most of us would tend to think of “justice” and “equality” as
going hand-in-hand and never being in conflict. However, some
have taken issue with this assumption. Aristotle, for example,
argued that “it is unjust to treat unequal things equally.” [14]
F. A. Hayek in The Mirage of Social Justice, Helmut Schoeck in
Envy: A Theory of Social Behavior, and Gonzalo Fernandez de la
Mora in Egalitarian Envy: The Political Foundations of Social
Justice all “deny the notion that there can exist a perfect
social justice, attainable by positive law and social
engineering; and...agree that the perfectly egalitarian society
would be an unjust society.” [15]
Russell Kirk talks about the “equality of condition” meaning:
“equality of incomes and other material rewards, equality in
education, equality of mores, manners, lodgings, and tastes. It
is this envious passion for equality of condition against which
Tocqueville warned the people of his time and ours. The total
triumph of the doctrine of equality of condition would be a
triumph of injustice...Zealots throughout the centuries have
endeavored to establish communities totally egalitarian; all
those endeavors have failed after much suffering.” [16]
Unfortunately, the only equality these efforts approached in the
end was “equality of misery.”
Equality vs. Excellence
Kirk continued:
“Some insisted that American education must have both excellence
and equity, a manifest absurdity: for the word ‘excellence’
means to exceed, of course, to do better than others; while
‘equity,’ or uniformity, necessarily implies mediocrity. The
more equality in schooling, the lower the achievement; and the
greater the injustice toward students possessed of some talents.
Forty years ago, I resigned a university post in disgust at a
deliberate policy of lowering standards in the interest of
‘equity’–that is, accommodating more students who, from
stupidity or indolence, ought not to have been admitted to a
university at all. Egalitarian pressures are exerted in
virtually every country to push into the universities most of
the rising generation, however dull, bored, or feckless a young
person may be. The consequence of this movement is to make the
higher learning lower.” [17]
Equality of Condition
Kirk continued:
“Permit me to suggest some probable long-run consequences of
national infatuation with equality of condition.
“First, great injury to the leading class that every society
requires for its success....[i.e. the best, brightest and most
wise, will have little incentive to lead.]
“Second, an obsession with equality commonly results in general
impoverishment, by diminishing saving and capital accumulation,
and by ‘humanitarian’ welfare measures that diminish the
incentive to work for one’s own subsistence....Decreased
economic productivity...will afflict the poor worst of all....
“A third consequence of deliberate leveling in society would be
grave intellectual damage, already in progress. Over the
centuries there was developed in all civilized countries an
elaborate edifice of schooling, originally religious in
character, meant to impart some measure of wisdom and virtue to
the rising generation. Aristotle instructs us that the process
of learning cannot be made easy. The higher learning is
concerned necessarily with abstractions, in large part; but the
common man tends to dislike abstractions....
“Those intellectual disciplines that nurture right reason and
moral imagination, requiring real thought, are unpopular with
the egalitarian, who regards them as archaic and snobbish. The
egalitarian much prefers utilitarian schooling and vague ‘social
studies.’ But both private wisdom and public order require that
a substantial number of people be well acquainted with genuine
works of the mind. The natural sciences, humane studies, and the
philosophical habit of mind neglected, the person and the
republic sink into ignorance and apathy; but the egalitarian
zealot does not perceive these ruinous consequences until the
decline no longer can be arrested.
“In short, I have been arguing that it is profoundly unjust to
endeavor to transform society into a tableland of equality. It
would be unjust to the energetic, reduced to equality with the
slack and indolent; it would be unjust to the imaginative,
compelled to share the schooling and the tastes of the dull; it
would be unjust to the thrifty, compelled to make up for the
losses of the profligate; it would be unjust to those who take
long views, forced to submit to the domination of a majority
interested chiefly in short-run results....Mediocre necessarily,
the egalitarian society would discourage or suppress
enterprising talents–which would result in social stagnation.
Life in a social tableland of equality would be infinitely
boring.” [18]
Equality of Opportunity
In most any discussion about equality, it seems that people
easily agree that the law should at least be used to promote
“equality of opportunity.” But in closing out his essay, Kirk
surprises most readers when he concludes:
“Yet don’t I believe in equality of opportunity? No, I do not.
The thing is not possible.” [19]
At first the reader tends to resist that conclusion, but it
makes a lot of sense once one considers his further explanation:
“ First of all, genetic differences cannot be surmounted between
individual and individual....Second, opportunity depends greatly
upon family background and nurturing; and unless it is proposed
to sweep away the family altogether...the rising generation of
one stock will differ greatly in opportunity from the rising
generation of a different family. For instance, I read every
evening to my four little daughters, or told them stories; while
my neighbors did not so instruct and converse with their
children; accordingly, my children have enjoyed superior
opportunities in life. It would be outrageously unjust to try
somehow to wipe out these advantages of genetic inheritance or
familial instruction.
“Inequality is the natural condition of human beings; charity
may assist those not favored by nature; but attempts to impose
an artificial equality of condition and intellect, although in
the long run they fail, meanwhile can work great mischief in any
society, and–still worse–damage human nature itself.” [20]
Ernest van den Haag observed:
“In the past, inequalities, however undeserved, were attributed
to God’s inscrutable will, or later, to ineluctable nature.
Today they are often attributed to inequality of opportunity,
which is used to explain almost all actual inequalities. The
intellectuals who inveigh against such inequalities seldom are
aware, however, that if we could equalize opportunity, if we had
a level playing field (which nature nowhere provides and which
society can only approximate), we would probably have even more
unequal outcomes than we currently do, because people’s talents
and inclinations vary enormously, as do the results of their
efforts and the value placed on such efforts by the market.
Inequalities can be redistributed but they cannot be eliminated.
The gap between rich and poor may actually increase when
opportunity is more equal. Even if incomes were somehow
equalized by redistribution, the poor would remain with us,
since people spend their income, however equal, at different
rates [and for different things].
“Some contemporary philosophers find morally objectionable the
‘natural lottery’ which distributes talents unequally. Among the
natural differences they would like somehow to equalize is the
capacity, as well as the inclination, to make efforts. Both
differ from person to person and may contribute to the poverty
of some and the wealth of others. Equality of opportunity,
however desirable, would not help much here, unless diligence
can be equalized as well.
“At best, equality of opportunity is procedural justice, seldom
regarded as meeting the goal of social justice, as long as
unequal outcomes remain, as they will....” [21]
Presumably, by “procedural justice” he means judicial procedures
to resolve disputes that are fair, unbiased, and apply the law
equally to all -- the same thing that Sowell called “traditional
justice” in the prior article and was discussed above regarding
Lady Justice.
Summary Regarding “Equality”
So Vazsonyi cautions us to distinguish between equality and the
egalitarian leveling of society. He argues that equality, in the
practical sense, amounts simply to setting up a legal system
that allows individuals to achieve their highest individual
potentials (which, of course, are all inherently unequal by
nature) and gives equal protection to the fruits/property
derived therefrom. Acton, Friedman, and Kimball set up a
conflict and trade-off between equality and freedom. Madison and
Sowell warn us to avoid politicizing inequality and recognize a
conflict and trade-off between economic equality and political
equality. Kirk, Hayek, Schoeck and de la Mora set up a conflict
and trade-off between equality and justice. Kirk further sets up
conflicts and trade-offs between equality on the one hand, and
excellence and economic prosperity on the other. He argues that
even equality of opportunity, which most people have a natural
affinity for, is really impossible to achieve through human law.
And finally, Van den Haag argues that trying to equalize social
outcomes is ultimately futile since productive human character
traits which naturally affect those outcomes are so unevenly
distributed by nature and cannot effectively be equalized by the
force of law.
From all of this we can see that whenever we take an expansive
view of the concept of equality, we brush up against what
economists call “opportunity costs,” “perverse incentives,” and
“unintended side effects.” In other words, we box ourselves into
corners requiring us to make difficult choices requiring
trade-offs between many desirable things. “Perverse incentives”
are policies which unintentionally encourage people to act in
ways that harm societal interests. They represent the “harm”
portion of the expression: “it will do more harm than good.”
Contrary to what many people today tacitly assume, the foregoing
thinkers argue that when it comes to using the force of law to
promote equality, of necessity the concept of equality must have
a very limited and confined connotation lest we inadvertently
sacrifice many other desirable principles, goals, and objectives
in the process, which brings us back to where we began – we have
the right to expect the equal application of the law
administered by our judicial system in a fair and unbiased way
as we individually enjoy our equal rights to life, liberty and
the pursuit of happiness.
If you are one who believes we should take an expansive view of
the concept of equality and think we should use the force of law
to try to guarantee it, how far are you willing to go and when
will you know when to stop? What non-arbitrary criteria will you
use to limit your efforts? What societal costs, side effects,
unintended consequences, and/or perverse incentives would likely
result from the legal policies you would propose in hopes of
producing the type of equality you desire? Would the societal
costs of your efforts outweigh the benefits you could
realistically (as opposed to idealistically) hope to achieve?
------------------------
[1] . John Locke, Two Treatises on Government (1689), Book 2,
Chapter 4, Section 22.
[2] . 1 Blackstone's Commentaries *125, footnote 5 to Sharwood's
edition.
[3] . The Federalist Papers, No.57, paragraphs14 & 15.
[4] . Thomas Sowell, The Quest for Cosmic Justice, p.51.
[5] . Id.
[6] . Balint Vazsonyi, America’s 30 Years War – Who is Winning
(1998), pp.37-39.
[7] . Quoted by F. A. Hayek, The Road to Serfdom, (1944), p.112.
[8] . Id. p.29.
[9] . Milton Friedman, Free to Choose, p.148.
[10] . Roger Kimball, “Tocqueville Today”, The New Criterion,
11/01.
[11] . The Federalist Papers, No. 10, paragraphs 22 & 23.
[12] . Id. paragraph 35.
[13] .Thomas Sowell, The Quest for Cosmic Justice, p.53.
[14] . Quoted by Russell Kirk in an essay entitled “The
Injustice of Equality,” Redeeming the Time, p.213.
[15] . Id. p.214.
[16] . Id. p.217.
[17] . Id. p. 221.
[18] . Id. pp. 222-26.
[19] . Id.
[20] . Id.
[21] . Ernest van den Haag, “The Hostility of Intellectuals to
Capitalism,” published by The Intercollegiate Review in Vol. 36,
Nos. 1-2, Fall 2000/Spring 2001 at p.58.
[22] . Quoted in Investors’ Business Daily, 8/31/99.
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