Two hundred and forty years ago, Thomas Jefferson penned the words in the Declaration of Independence that have both inspired and haunted America throughout the centuries. He wrote the self-evident truth that “All men are created equal.” Above I used the word “haunted” because throughout American history there has always been the constant reminder that this has forever been an ideal that we have not lived up to, for if all men are created equal, then all men must be treated equally by the law. It has always been the few who have dared to call out America on failing to live up to that idea, and those few have always faced the opposition of people who don’t want to have to see that dark underbelly that disturbs us all. However, on the other side of the coin, that phrase has always inspired us as an ideal to strive towards, and been the inspiration behind movements to challenge tyrants around the world.
Equality before the law has always been a cornerstone of liberal thought for the last few centuries (I use the word liberal in the classical, broadest, sense, rather than the modern liberal that the term has come to connote since the New Deal). Indeed, in this sense it is an essential ingredient to liberty, for without the recognition that we must always be treated equal under the law, some people will always see their freedom reduced in order to provide certain privileges for others. By privilege in this case I mean the narrow sense of certain legal benefits given to certain individuals and groups, at the expense of others. Privileges can be either positive or negative, meaning they can be certain things the government provides to certain people (such as special tax breaks), or they can be things the government actively does against somebody (such as a special tax on someone). To use concrete examples, the government gives a special subsidy to growers of corn for the use of sugar and ethanol, and then punishes cane sugar imports. When the government does this they are not treating business equally, but privileging certain ones at the expense of others. An obvious negative treatment is slavery, where an entire race was subjugated to chattel servitude simply because of their skin color, and Jim Crow “separate, but equal” laws fall under the same category.
From the classical liberal perspective, these unequal laws are a scourge upon liberty. If individuals and groups aren’t treated equally under the law, they also are not free, or at least not as free as others. This is why, at least politically, the movement for LGBT equality is something that should be recognized for what it is, the demand for certain people to be treated equally under the law, and have the same rights and freedoms as those who are straight. It’s not about having special treatment at the expense of those who are straight, but having the same liberties as those who are straight. The Black Lives Matter movement is also an example of the demand for equal treatment under the law. As a principle, this is a movement that has been going on since the first African-American slave arrived in Virginia in 1619. (One can quibble with certain goals of the organization, but the principle is a vital one.) Throughout our history, black lives have not mattered as much as the lives of white Americans, and the demand for equal treatment by law enforcement as one of the coercive arms of the state is essential. Although the data doesn’t support the conclusion that blacks are shot at more than whites, as a whole blacks do have physical force applied to them far more than white people do. This concrete example makes clear that unequal treatment isn’t simply an affront to justice, but an infringement on the equal rights and liberties of everyone.
I want to go further and discuss what this kind of equality is not. It is not that people ought to have equality of outcomes, nor is it necessarily equality of outcomes, both of which are egalitarian measures as a function of economics rather than law. I think it is important to keep a distinction between considering equality in terms of economic arrangements and legal arrangements. Although there is a relation in terms of how the laws are applied in economic regulations, when we consider equal freedom under the law, we are considering something distinct from whether or not people should be equal in terms of opportunities. Equality of outcome is the notion that everyone should be equal in terms of their income and property distribution. Equality of opportunity is the notion that everyone should have the same chance to succeed in life, regardless of the station to which they are born into. Both hold a certain danger to the free society, in that both require greater amounts of government intervention into the economy which inhibits the economic freedom of some for the benefit of others. In considering both in terms of degrees, equality of outcome is far more dangerous to the free society than is equality of opportunity. The former requires large degrees of government coercion and redistribution in order to equalize peoples stations in life, and history has shown that this equality always pushes everyone down (except for those wielding power) rather than lifting everyone up.
On the other hand, equality of opportunity, is actually something that a free society does tend to strive towards, but within the bounds of respecting equal treatment under the law. For instance, the elimination of nobility in the American constitution is both an instrument of equal treatment under the law, and a way of creating more equal conditions in terms of opportunity that people have. Declaring JIm Crow laws unconstitutional is also a way of creating both equal treatment, and equality of opportunity. There is always a degree of nuance and complexity involved here. Affirmative action is a good example of a law that tries to equalize opportunities, but causes much disagreement over whether or not it goes against equal treatment under law. As Matthew Yglesias of Vox has argued, there is no real way to measure equality of opportunity, so it is very difficult to measure whether or not it has been achieved, and I would argue we will never fully achieve it through legal means if we hope to maintain equal treatment under the law. However, perhaps one day we will approximate more fully as society evolves, and, hopefully, we begin to realize our shared humanity. Then maybe we can learn how much we accomplish without the use of force, which is why the free society rests so fundamentally on individual responsibility and initiative. And, to end on a pessimistic note, maybe why we will never completely achieve it. As William F. Buckley Jr. noted about the conservative movement, it will always be asymptotic in achieving its ideals.