“It has come to this. … Does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires?” So pondered the late Justice Antonin Scalia in a 2014 concurring opinion in a case dealing with a state constitutional amendment passed by Michigan voters prohibiting the use of race and sex-based preferences in higher education.
His point—what he termed “frighteningly bizarre”—was that the explicit terms of the Equal Protection Clause forbade racial discrimination of any kind. And preferences based on race, or any similar categorization for that matter, plainly violate the basic American maxim that all are equal before the law.
Incidentally, this version of equality, what we usually call equality of opportunity, was recently echoed in the movie RBG, which begins with Ruth Bader Ginsburg’s character saying, “[a]ll I ask of our brethren is that they take their feet off our necks.” Though the actual quote originated close to 200 years ago, the underlying premise rings of what the Equal Protection Clause “plainly requires.”
But this column isn’t about racial or gender equality, at least not in the sense of discussing government-sanctioned (or private) affirmative action policies. No, this column is more broad, instead looking at what we mean when we talk about equality. Because how we individually, and more importantly as a country, define that elusive concept forms not just our collective objectives, but also the means and methods by which we go about seeking to achieve those ends.
In some sense, the tension between what kind of equality Americans want lies at the heart of what most separates us today. In one corner sit the proponents of Justice Scalia’s vision of equality: Government should not treat people differently, the intentions or reasons for that different treatment whatever. The corollary is that government-sanctioned obstacles—anathema to negative liberty—are similarly problematic.
In the other corner sits those who insist on a definition of equality dependent on government intervention to equalize outcomes or correct ills, regardless of how those disparate results actually occur. Note that those falling into this camp are not exclusively on the political left. Proponents of crony capitalism deserve inclusion in this category just as surely as Bernie Bros or the ever-increasing number of Americans who approve of socialism in all its iterations.
Whether using government to accomplish such aims even comports with our constitutional system seems to be a question we moved beyond without much thought. That rather important point aside, the practical drawbacks alone should give pause.
The unmitigated drive for equality in all aspects of society should cause one to wonder where it stops. Despite no doubt well-intentioned reassurances that “this time will be different,” history tells quite a different matter. Robespierre and countless Soviets and Chinese could offer telling insight into the impossibility of trying to stop the train once it leaves the station.
Worse yet, the means employed undermine the very best of what it means to be an American. Instead of rising (and falling) based on merit and hard work, success—assuming it is even attained—instead becomes a hollow victory when achieved by external factors entirely outside anyone’s control. It says, in effect, “you couldn’t accomplish this on your own.”
This brings us back to the beginning. Seeking a system of justice that strives to treat all as equal before the law is both admirable and necessary for a free society. But trying to manufacture equality across all spheres of life runs into the problem that Ronald Reagan observed is endemic with Socialists: They can provide the basic necessities, but they ignore the spirit of humans, the side of us that also dreams.•
Parr is a student at the Indiana University Robert H. McKinney School of Law in Indianapolis and is executive director of the Indiana Young Republicans and president of the IU McKinney Federalist Society. Send comments to [email protected]
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