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Contest Essay

Legal Equality and Liberal Culture


     
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Student Winner. Second Prize ($1,500)

“Low but solid ground”: with these apt words, émigré philosopher Leo Strauss famously characterized the classical liberal foundations of American government. Though Strauss’ own relationship with liberalism was, shall we say, complex, for those who, like him, aim to be “friends, but not flatterers” of liberal democracy, his characterization expresses a crucial truth. Classical liberalism, with all its attendant assumptions, is founded upon one fundamental insight: Homo homini lupus, “Man is a wolf to man.” Fewer insights, unfortunately, come so easily to the student of history or the human heart, as that which shows the great evils and cruelties which men and women are capable of perpetrating on one another. It was a keen awareness of our baser human instincts—our pride, our greed, and in particular our lust for power over others—which drove first Thomas Hobbes, and then a succession of other thinkers and philosophers, to try to determine ways to keep such destructive impulses in check.

Liberal thought has, then, been a gloomy philosophy from the very beginning, but this has not deprived it of notable successes. In political life, aware that excessive concentrations of power are the first sign of tyranny, liberalism has long taken as its primary concern the proper distribution of constitutional authority. Montesquieu, in his Spirit of the Laws, laid out the attitude which still guides liberalism in its view of power. “Political liberty,” he wrote,

is to be found only in moderate governments; and even in these it is not always found. It is there only when there is no abuse of power. But constant experience shows us that every man invested with power is apt to abuse it, and to carry his authority as far as it will go. … To prevent this abuse, it is necessary from the very nature of things that power should be a check to power.[1]

James Madison, of course, would later incorporate this insight into the design of the American Constitution, with its manifold separation of powers: three branches, a bicameral legislature, and the entire federal government existing alongside the several states. All of which, in Madison’s mind, would prevent tyranny and preserve freedom through ambition being made to counteract ambition. This concern for controlling power, even when it was held by statesmen known for honor and integrity, was no eccentricity of Madison’s, but a sentiment widely shared among his contemporaries at the American Founding. John Adams, for instance, had noted earlier in his life that “the only maxim of a free government ought to be to trust no man living with power to endanger the public liberty.” And, striking a metaphysical note, Thomas Jefferson famously proposed “Resistance to Tyranny is Obedience to God” as a motto for the new United States.

Yet if a general distrust of worldly power formed the foundation of classical liberalism, and particularly in America, it was not the sole foundation. How could it be? For if men were of a sort that none could be trusted with a minimal or controlled power, even wise legislation which furthered liberty would be impossible. Human society would consist of nothing but a mass of voracious beasts, needing control by force lest they prey upon each other. We would be drawn, in short, to the primitive liberalism of Thomas Hobbes’ Leviathan, where one man or institution is vested with absolute supremacy lest all citizens tear each other to pieces. The blanket distrust of power ends, ironically, by limiting it without really controlling it, leaving citizens only with the vain hope that their freely constituted despot will not abuse his authority. Theologian Reinhold Niebuhr may have captured this paradox best when he noted that “a free society requires some confidence in the ability of men to reach tentative and tolerable adjustments between their competing interests and to arrive at some common notions of justice which transcend all partial interests. A consistent pessimism in regard to man’s rational capacity for justice invariably leads to absolutistic political theories; for they prompt the conviction that only preponderant power can coerce the various vitalities of a community into a working harmony.”[2]

A way out of this logical conundrum—and the path thankfully taken by the American Founders—is provided by the notion of equality under the law. The rule of law itself has long been understood as essential to a well-ordered society, establishing consistency in the adjudication of civil disputes and providing a common code and a notion of common rights against tyranny. Individual equality under the law, which to an unbiased mind at first seems a rather mysterious concept—equal how? and why?—then appears to be the simple extension of this notion of the rule of law to a liberal society. For if, for the sake of common liberty, we are to indeed possess a government of laws, and not of men, then no man may be kept above the law, and the law may not draw divisions among its citizens. To do so would be to risk establishing a hierarchy with force of law and sanction, privileging particular private interests at the expense of the public interest in openness, flexibility, and liberty. As Supreme Court Justice John Marshall Harlan boldly declared in his most celebrated dissent:

In view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.[3]

As Friedrich Hayek pointed out in The Constitution of Liberty, equality under the law is predicated not on the denial that human differences exist, but on the conviction that they should not matter in the eyes of the state.

The nature of the case, however, requires that we immediately specify what the concept of legal equality does not mean. It does not mean that all citizens must be rendered materially equal. While extreme poverty among some of his fellows is, and should be, disheartening to any compassionate citizen, both theory and practice show us that attempts to remedy this economic ill through political means—means which necessarily involve the legal privileging of one citizen over another—come to naught. This is true both of relatively mild measures pursued by modern welfare states, and of the violent expropriation and seizure of property by raw force common in left-wing dictatorships from Maoist China to Robert Mugabe’s Zimbabwe. Even those schemes of redistribution used by welfare states, touted as a correction to the excesses generated by pure economic exchange, inevitably gather power to the apparatus of the state. Political rent-seeking may become rampant, as individuals and businesses realize that currying favor with the powers that be can bring greater economic benefit that producing goods for sale on the market.

Even if we allow that redistributive policies may bring greater aggregate satisfaction, they also inevitably warp individual desires and society’s means of fulfilling them. Under a highly redistributive regime, where wealth has been essentially eliminated to combat poverty, writes Bertrand de Jouvenel, “the production of all first quality goods would cease. The skill they demand would be lost and the taste they shape would be coarsened. The production of artistic and intellectual goods would be affected first and foremost. Who could buy paintings? Who could even buy books other than pulp?”[4] Eliminating social or material inequality, then, cannot be implied by legal equality, since doing so concentrates power in political institutions to be used against particular citizens and to control society at large—precisely the kind of abuses that equality under the law, and a lawful liberal regime, were supposed to prevent. What, then, does this legal equality actually entail? Important economic and political consequences follow from it, each of which is crucial to the furtherance of liberty. We shall treat each in turn.

The economic consequences of legal equality may be the more obvious, being more frequently addressed by both academic and popular sources. The underlying principle here, as noted above, holds that no citizen may be accorded privileges at the expense of another, since public power and resources may not be utilized for solely private ends. Human slavery is thus obviously prohibited, since it requires sustained state action against one person on behalf of another. In fact, slaveholding might be seen as the paradigm case of denial of both legal equality and liberty. When one man is relegated to an inferior legal status vis-à-vis another, ensconced in permanent legal childhood or denied the protection of the laws altogether, he is thereby denied the freedom to make and pursue his own life. While ancient philosophers, Aristotle most infamously, argued that only those of servile and dependent mind would accept enslavement, the philosophers of classical liberalism reversed the equation: legally-enforced enslavement produces in men habits of dependence and damages their potential for self-rule.

There are, in addition, more conventional economic ramifications of legal equality, again emanating from the principle that power may not be deployed to benefit one without being accessible to others. Thus, for example, no one may be denied the right to own and operate a legal business or provide a particular good for sale on the open market. The state may not grant a monopoly to any economic actor, since doing so involves preventing others from joining the same market, enshrining arbitrary discrimination—in favor of one provider, and against all others—in the structure of regulation.[5] As noted earlier, taxation and public finance may feel the effects of equality under the law as well, as it certainly implies that the level of sacrifice demanded for the public purse must be equivalent among diverse taxpayers. If legal equality means equality of sacrifice, taxes must be conceived as payment for public services received, rather than as a tool of redistributive policy. As for the other aspects of public finance, let it only be said that soundness is the ultimate safeguard of both equality and liberty: stable money and low debt, by setting commerce on a surer footing, enable future generations to enjoy at least the level of prosperity enjoyed by the current one. To ignore fiscal soundness because, in the words of J. M. Keynes, “in the long run we are all dead,” is the height of present arrogance.[6]

It is, however, the political aspect of equality under the law that has been most neglected in recent times. Legal equality is not the sort of jurisprudential principle that exists in an airy realm, like procedural due process or other abstractions. It is a fundamentally political principle, whose effects will be felt in the legislative arena and whose sustenance must be drawn from the intentions and psychology of participants in the political process. To begin to see why this is, we should reflect on what a single citizen, convinced of the importance of equality under the law, would likely understand as his political prerogatives. We do not know his likes and dislikes, his preferred model of social organization, or even his notions of what should be managed in the public’s business and what should be left to private initiative. What then do we know? If he understands and has taken to heart the idea of legal equality, he will not support any political measure which requires of others something that it does not require of himself. Conscious of the fact that all are equal under the law, he will not support any legislation for the general public that he himself is not willing to abide by.[7] Trusting that the law should not be used as a tool of hierarchy, he will refrain from policies which take from Peter to give to Paul; and from those which provide public benefit without requiring sacrifice proportionate to the goods derived.

This is, of course, an ideal picture, and one which few, if any, citizens of a liberal polity would match (since, after all, a liberal polity is one inspired by the conviction that no existing citizen is capable of meeting its civic ideals). But we need not discount the possibility of approximating this ideal more or less closely in society writ large. Indeed, it was the recognized genius of the American Founders to have captured the particular virtues of restraint and moderation in the operations of the United States, though these virtues would be demonstrated by precious few individuals. It was, wrote Alexander Hamilton in Federalist 9 and James Madison in Federalist 10, precisely the geographic extent of the United States, and its consequent diversity of interests, which would best ensure that no one interest could oppress the others; all that needed to be done was to structure the federal power so as to represent that diversity adequately. Restraint and responsibility could prevail in government when the passions of the moment, and the factions which expressed them, were kept in check by one another. Having neutralized as much as possible the danger of private interests overwhelming the public, the state would be forced to focus on doing well those functions it had been constituted for.

Later, when commenting on America in the 19th century, both French visitor Alexis de Tocqueville and Southern statesman par excellence John C. Calhoun would echo this earlier point. Arguing that constitutional government was characterized fundamentally by compromise, Calhoun wrote that, by providing for multiple centers of power, such a state gave each interest the means of defending itself against civil depredations.

Its effect, then, is, to cause the different interests, portions, or orders—as the case may be—to desist from attempting to adopt any measure calculated to promote the prosperity of one, or more, by sacrificing that of others; and thus to force them all to unite in such measures only as would promote the prosperity of all, as the only means to prevent the suspension of the action of the government—and, thereby, to avoid anarchy, the greatest of all evils.[8]

Echoing Madison’s foresight, Calhoun saw that what seemed to be a paradox of the liberal constitution was in fact no paradox at all: that the separation and balance of powers would strengthen, not weaken, lawful government as a whole, by keeping it more tightly bound to measures meeting with unanimous or near-unanimous consent. A political culture of restraint would be the result. And Tocqueville, comparing America’s incipient democratic society with the still-existing aristocratic regimes of Europe, noted that:

In an aristocratic people each caste has its own opinions, sentiments, rights, mores, and separate existence. Thus the men who compose it do not resemble everyone else; they do not have the same manner of thinking or of feeling, and they scarcely believe themselves to be a part of the same humanity.[9]

Without even an understanding of their common humanity, the ruling classes in aristocracies fall easily and frequently into oppression of the lower orders. Legal equality, implies Tocqueville, has become essential for the avoidance of oppression and tyranny in our democratic age. Taken together with the economic guidance laid out earlier, these notions of liberal political culture provide a powerful vision of what was once called “ordered liberty.”

A handful of concluding thoughts present themselves. First, there is the fact that classical liberalism, as it appears here, has few defenders remaining in 21st century America. That many modern-day progressives have little interest in maintaining equality of sacrifice is clear. But it is equally clear that not a few so-called “conservatives” have been drawn down one of two false paths: first, to the belief that power is benign, even wondrous, provided it is wielded by the proper side; and second, to the belief that all power is dangerous, no matter who wields it and under what circumstances. The former excess has been much remarked upon, but the latter’s hold has not. Among such men, one discerns a partially blind hostility, the residue of justified frustration at perceived excesses. Yet while America has always had an individualist soul, resentful of far-away power, it does not take much reflection to see that simple denunciations of the state are vapid. It is a misrepresentation of history to claim that the Founders opposed government per se, and wanted simply to keep it weak. On the contrary, they sought to limit personal ambition within government, precisely to keep it vigorous in the pursuit of its proper functions. A weak state is no guarantor of liberty; incapable of enforcing or making real its own legal guarantees, it will fall all the more rapidly into personal, despotic rule.

Finally, we might end on a point of caution. We touched earlier on the problem of public debt, and its explosion in recent times. The precise economics of debt are uncertain, even among economists, but what is certain, and gives many of us pause, is the fact—no, the feeling, though it is no less valuable for being that—that long-term indebtedness is unfair, and that by refusing to balance our public books we use our power unjustly against future generations. Of course, neither children nor grandchildren, born and yet-to-be-born, have representation in our liberal democracy, and their potential interests go unspoken for. Classical liberals have long disputed the extent of political responsibility—while Jefferson declared that “the earth is for the living,” Madison and most of their fellows disagreed—and we have yet to determine how best to represent the shadow interests of past and future. Indebtedness has, until recently, remained an unsolved but relatively unimportant paradox for liberal democracy. It may soon become more important than we are accustomed to, and we can only hope that a sense of generosity enables us to enfranchise, through some clever means, those who cannot now speak, but will.


Notes

[1] Charles Secondat de Montesquieu, The Spirit of the Laws, Book XI.

[2] Reinhold Niebuhr, The Children of Light and the Children of Darkness, ix.

[3] Plessy v. Ferguson, U.S. Supreme Court, 1896.

[4] Bertrand de Jouvenel, The Ethics of Redistribution.

[5] The granting of patents, copyrights, and other legally enforceable privileges, which bear the marks of limited monopolies, are defensible on grounds of neutrality and finiteness. Anyone may obtain such a right for his invention or artistic creation, and it expires at a predetermined date. Should the privilege be granted on a patently unfair basis – to the later of competing inventors, for instance – or at the pleasure of the legislature, it would thereby become indefensible.

[6] See James Buchanan, Democracy in Deficit: The Political Legacy of Lord Keynes.

[7] He will, in short, become a thoroughbred Kantian in his political tendencies. The close resemblance of classical liberal jurisprudence to Immanuel Kant’s most famous formulation, the Categorical Imperative, in ethics, has not gone unnoticed. See Friedrich Hayek, The Constitution of Liberty.

[8] John C. Calhoun, A Disquisition on Government, from The Essential Calhoun, ed. Clyde Wilson.

[9] Alexis de Tocqueville, Democracy in America, Book II, 3.1.






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