Nothing could be more obviously false than the founders’ claim that “all men are created equal.” I am not casting historical stones. Of course, the Constitution reveals they were hypocrites, trumpeting human equality while denying it to people of color and women, and in our culture hypocrisy is the most mortal of sins. But I refer to the truth claim in the present tense. In what world can we claim a desire for equality when (a) it is apparent to all that our political and economic systems view power and money as determinants of worth and (b) it is just as obvious that we are anything but equal in our gifts and attainments? Granted, in our more pious moments we point to (a) as evidence of hypocrisy, but honesty should also compel us to recognize (b) as a reasonable explanation for (a). So is equality an ideal we fail to live up to, rather like Christian love, or do we not live up to it because it seems pretty clearly false? If the former, we have to ask if it is even a possibility. And if the latter, why praise it as an ideal? Is equality merely one more grand narrative we deceive ourselves with, a delusional anomaly in a culture that worships privilege? Maybe we should chuck the whole notion and just ignore any appeal to equality.
The truth about equality is not comforting. Not only are we not equal. No one wants to be. The 99% or the 47%, those who feel less powerful in this culture, may claim they want only parity, but were they the 1% or the 53% they would easily find very good reasons for current stratifications, whether political or economic. No one sees herself as average or wishes to be. Our culture neither celebrates nor rewards the median and the mediocre. Why should it? What is so great about equality? No sooner do we hold it up as an ideal than we wriggle away from being tainted by it. Our inclinations are in tune with nature, which seems to despise equality at least as much as we do. We are born with radically different genetic gifts into grossly different environments that nourish or frustrate them to parents, neighborhoods, schools, and associations that polish or demolish them. If the self-made man is the most exaggerated economic myth in our national story, surely our reverence for equality is the most dubious political myth, and in any case the many influences that make us what we are rarely conspire to make us equal. Examine the appalling outcome of historical attempts to establish egalitarian polities. Any fan of equality should study the earnest efforts of France’s Committee of Public Safety in 1793, the Bolshevik apparatchiks of 1923, or the People’s Liberation Army of 1968. Whether the six-month nightmare in the Bavarian Socialist Republic of 1919 or the sixty-year heartbreak in Cuba, the lessons are the same. A less bloody but equally unsuccessful series of attempts occurred in the hinterlands of the United States in the first half of the nineteenth century as scores of utopian experimental communities planted themselves only to dissolve into discord and disaster. For all our trumpeting the virtues of equality, all of history seems to answer with a resounding “no.” No attempt to establish or impose equality by decree or design has ever succeeded at eliminating the inequalities that emerge naturally in civil societies. Just as objects approaching the speed of light increase their mass and frustrate further increases in velocity, so too do the natural inequalities that opportunity produces impede the dreams of equality that reformers have advanced throughout history. The slightest bit of freedom produces inequality. No amount of state power can forestall that formula for long. Circumstantial human equality is a fantasy.
I wish at this point to establish a counterweight to equality. It is liberty. The enemy of equality is liberty. We actually could be equal if we had no freedom to develop our natural and circumstantial freedoms or could be brainwashed into discounting our preferential freedom. A ruthless pursuit of equality will thus not only fail but will crush liberty in the effort. These two truths explain why libertarians fear government, hate socialism, and wish to maximize liberty and minimize equality. They know egalitarians will fail and in failing will destroy freedom. Libertarians, on the other hand, know that their project can succeed. For freedom grows naturally to the degree that equality fails. In this the social contractarians are correct: our natural state is to be free and unequal rather than equal and unfree. The former is a predictable product of our natural, preferential, and circumstantial freedom. It flowers from our human nature, from our efforts to identify and fulfill our desires, from our talents and our skills. Our liberty is the arena wherein we build our destinies and pursue our preferred projects. Who doesn’t love freedom (see “Our Freedom Fetish“)?
But whereas liberty is internal and natural, equality is external, unnatural, and imposed. It exists not inherently but only by comparison with others, so it is by nature societal. It concerns itself not with the talents or skills of the individual but with the metrics that gauge one against the other, and its pursuit nourishes the envy and shame of inferiors and the scorn and contempt of superiors. Unlike the gradations of liberty, equality as an ideal is an absolute quality. We may have limited freedom, but “limited equality” seems to be a non sequitur. For all these reasons egalitarians, who view equality as an ideal and a goal, find instead that inequality is the eternal reality, so they are forever frustrated, bitter, and dissatisfied with the social order. True believers must embrace revolutionary change since nothing else will produce the absolute equality they think necessary to reform human nature and fulfill their utopian ideals. Meanwhile in the real world, equality looks not only unattainable but unattractive. The struggle between freedom and equality is the corner office and executive suite versus the concrete block union hall, designer labels versus grey Mao jackets, entrepreneurship versus policy manuals, and disposable income versus barely getting by. No wonder libertarianism is ascendent.
It should not be. And it must not be. Libertarianism may be a natural human condition and egalitarianism an unnatural and impossible imposition, but for all its feel-good associations, libertarianism must fail if allowed to run rampant. Without egalitarianism as an oppositional ideal, libertarianism will destroy not only equality but also liberty. Their relationship is in tension, yes, but not in the sense of two brawlers in the street. In their battle against each other, we should find cooperation in the midst of conflict, rather as we might see both sides in a football game agreeing to abide by one set of rules. Besides the natural imbalance in their strengths, the analogy to a sporting contest fails in another way too. This battle will never end, nor should it. Seen correctly, it resembles less a contest whose rules are structured so as to equalize the sides than a desperate effort to restrain something both beneficial and dangerous. Civil societies throw up levees of equality when the tide of liberty rises high enough to destroy everything they have tried to build. When they embrace a contractarian warrant for government, every restraint against liberty is cause for resentment. In that view, the embankments of equality that limit the flood of liberty are as artificial and unnatural as dikes on a floodplain. But this resentment is misplaced. We have always had to restrain license and build up equality. Liberty is our natural condition in the same way as so many other instinctual drives that we have had to use our reason to limit. So while equality may violate our desires, it satisfies reason, for we know that no society could long endure in its absence. So did our ancestors recognize that we have always lived in a political world in which our natural desire for freedom must be shaped by our responsibilities to family, clan, and village, to the duties of love and the equity of citizenship (see “The Moral Bullseye”). Despite all the dire warnings from libertarians about the dangers of creeping socialism, we have far more to fear from too much liberty than from too much equality simply because our natural inclination is toward freedom.
So what constitutes “too much”? The question, like all judgments of goodness, relies on something missing from the conversations thus far: the nature of the rational warrant we use to legitimate the polity (see “Foundations of the Law: An Appetizer”). If we embrace a social contract justification, the limits of freedom are likely to be spelled out in the constitution that establishes the polity. This is a defective foundation for government sourced in a moment of epistemological crisis that grossly distorted the available options (see “Why Invent a Social Contract?“). If we embrace a functional natural law basis for government, finding the warrant for the state in our needs, we find liberty and equality engaged not in a fight to the death but in a kind of endless dance in which each side must know the right steps (see “Functional Natural Law and the Legality of Human Rights”). Put another way, the liberty/equality contest must be a zero-sum game, but its objective must be to maximize each person’s efforts to fulfill her needs, including those that only the state may secure. The changing balance of equality and liberty is a see-saw set upon the fulcrum of justice, defined as “to each her due.” Too much liberty destroys the conditions of equality that allow all to meet their needs and ultimately will destroy liberty as well, at least as exercised in a civil society. Too much equality stifles the liberty necessary for all to seek the satisfaction of their needs.
So how finely must this see-saw be balanced? How do we know when it is right? Why can’t we simply fix the thing in that position once we find it so that all members of the polity maximize the satisfaction of their needs? The obvious impossibility of accomplishing that ideal in the flux of circumstance leads to its mirroring question. In a heterogeneous culture composed of many sub-cultures pursuing manifold desires, how could any political mechanism possibly satisfy its designed function?
That is a good one. It must first be admitted that the relationship between liberty and equality is perpetually dynamic and contextual, eliminating any possibility of a fixed ratio of one to the other. The constant adjustments and tinkerings we see government playing with strike us as dawdling and wasteful or ineffectual and meddlesome. Libertarians resent government interfering in what they regard as a separate sphere of laissez faire (see “Economic Justice“). But these minor adjustments are just what you would expect from a continuous effort to fine tune the machinery of power in the flux of events, especially when you consider both the inherent inefficiencies of any power-wielding human organization and the created inefficiencies our founding fathers designed into our system to foil excess aggregations of power (see “When is Civil Disobedience Justified?“). And let us also acknowledge the extreme politicization of the current climate because of misunderstandings about the nature of freedom and equality, many of these rooted in mistaken applications of social contract theory. These misunderstandings can be resolved if both sides accept the inevitability and desirability of their struggle and its essentially cooperative nature.
The issue may be further resolved by focusing on common needs rather than disparate desires. Government cannot be all things to all persons and should not attempt to satiate all desires, only those that satisfy common human needs, and even more narrowly, only those that persons cannot meet by their own efforts or by the principle of subsidiarity (see “Needs Anchor Morality”). These include the contributive and retributive needs common to all citizens and the distributive needs that most persons manage on their own but that some few are unable to fulfill. Already, the job looks more possible, don’t you think? And since “what is due” in justice is the satisfaction of our true universal needs, we can immediately dismiss as beyond the sphere of proper government interests all of those kinds of conflicts between liberty and equality that do not directly address those rights that government exists to satisfy in its pursuit of justice (see “Natural and Political Rights”).
Our first appeal in calculating this is likely to be based upon fairness, a comparative allocation of goods of all stripes one relative to another. But this temptation leads us right back to the egalitarian trap of absolute equality as a desideratum of justice. It is not. In truth, fairness is such a poor standard of judgment that libertarians have long ago learned to counter it by pointing out the many obstacles to its achievement or by denying its inherent appeal to equality. They insist that fairness mandates that some who contribute more also deserve more. In a society founded upon the individual agency of citizens that holds them responsible for their own choices, no calculation of relative fairness is possible because no computation of responsibility is. Human science in its search to subject human preference to deterministic prediction has long promised that politics, economics, sociology, and psychology will soon unlock the mysteries of free will and allow relative responsibility to be calculated in light of all the factors that are said to influence it, but it has utterly failed to do more than remind us that individual human preference is a mysterious process (see “The Calamity of the Human Sciences”). This has only served to cast doubt upon any assumption of individual responsibility, and this doubt taints any effort to determine relative fairness, each to each. Postmodernism in its attempt to foster a total equality has attempted to address this problem by an identity politics that regards persons’ natures as formed by outside factors, producing group identities that then can be weighed against others for fairness, but this abrades the individual agency of modernism‘s approach to citizenship (see “The Axioms of Moral Systems”). It leads aggrieved members to protest that any group comparison for fairness must be unfair to its individual members. Libertarians have mastered this protest in the current prejudice/privilege debate, not only prolonging it for their own enrichment but at the same time obscuring the proper means to its resolution (see “Prejudice and Privilege”). Their motives aside, they have a point. They oppose group identities and clumsy sociological terminologies for a simple rule focused on individual fairness, person to person. It is based on their ideal: maximal circumstantial freedom, limited only by fairness of opportunity. But their own appeal to fairness must fail too because it cannot factor in unearned privilege. When egalitarians pitch their clumps of privilege and prejudice rooted in broad racial or social factors that blur individual responsibility with the aim of achieving equal outcomes, libertarians come right back with an opposing definition of equality that defines it by a wide-open circumstantial freedom to act. The more options the better, they say, so long as everyone has an equal shot at getting what they desire. This view explicitly rejects the human science assumptions of the egalitarians in favor of a pure contractarian view of social order. It argues that the cost of an absolute equality on freedom is simply too high, too restrictive of freedom, too limiting of ambition and too supportive of weakness.
This stalemate is perpetuated by an endless argument pitched by both sides based upon fairness. To break it, both sides ought to abandon hopeless permutations of fairness in favor of considerations of justice. This refocus allows both sides to bring a useful theoretical tool to the liberty/equality battle: the distinction between kind and degree. I cannot overemphasize how valuable this difference becomes as we attempt to allocate limited resources justly in any system. Earlier, I mentioned that equality is an all-or-nothing kind of concept, unlike liberty. Yet I have also been arguing for what might be seen as a partial equality as a means to rein in the excess of liberty that is license. This only makes sense if we champion some equalities as absolute and necessary and others as dependent on circumstance. The former are the equalities of kind that governments must regulate as they pursue their primary purpose to guarantee justice while the latter are inequalities of degree that derive from our freedom to pursue what we think good. The equalities of kind a just society embraces can never be negotiable or sacrificed on the altar of liberty because to do so would destroy the raison d’être of government itself by depriving citizens of justice. Libertarians tend to ignore this. Egalitarians in their frustrating pursuit of total equality make a different mistake, for their efforts to establish polities in which all are equal in every respect can only succeed in destroying liberty, also depriving citizens of justice.
If you are unfamiliar with functional natural law theory, you may regard the whole issue as intractable. Where is the justice in having those who grew rich by dint of their choices pay for those who cannot get out of their own way? Why should powerful individuals surrender what they accumulated “entirely by their own effort”? How can anyone justify discounting the desire of wealthy parents to pass their prosperity on to those most dear to them and,instead have the state interfere in their last testament? Why should I pay taxes to educate the children of persons I have never met and care nothing about? Or we may examine a less weighty set of laws that mandate health insurance, motorcycle helmets, seat belts, electrical codes, and all the other bothersome mandates of modern life. One place to draw the line is where others’ freedom begins. Your right to throw a punch ends a millimeter your side of my nose. This kind of a limit is one even libertarians recognize, though its recognition does not seem to reconcile them to a more general acceptance of the limits of liberty. Let us call this line the libertarian golden rule. It seems obvious to me that this limit to freedom could be applied more thoughtfully. If your freedom really cannot impinge on mine, some things we now accept might be prohibited. Your right to smoke cigarettes increases my insurance premiums as does your desire to let the wind blow through your hair when riding your motorcycle. Your dropping out of school will possibly increase my tax burden. You must carry automobile and health insurance if you agree that your liberty ends where mine begins. The libertarian golden rule defines justice by the satisfaction of two related conditions: maximizing liberty within the limits of fairness. This focus on equity is a necessary but insufficient element of a true definition of justice. John Rawls was wrong in essentially equating fairness and justice. One of my students taught me that through a joke.
I was passing out exams and I jokingly reminded the students not to cheat, for that wouldn’t be fair. In a flash, Ben responded, “It would be fair if we all cheated.” Of course, he was right. His comment illuminated for me the insufficiency of the libertarian golden rule. If we define justice as maximizing liberty restrained by fairness, of course it would be good for all the students to cheat. That seems to have been the value system Wall Street applied to the derivatives market in 2008. We see it all around us if we look for it. So long as all public schools are equally crummy, all students will have a fair chance at success, meaning next to none, and look how low we can keep property taxes! Dumping litter on the highway, toxic wastes into our air, bribing politicians, or overfishing the oceans cannot be wrong if everybody does it, for it meets the two criteria of maximizing freedom and conforming to equity. Note that valuing fairness alone might allow the kinds of abuses egalitarians have committed, so libertarians insist that fairness be coupled with maximal freedom in their recipe for justice. Indeed, being libertarians, maximal freedom is the essence of justice in their view. But clearly something is missing from their definition. Ben taught me that.
The libertarian golden rule could not justify a progressive income tax or inheritance tax, for instance. These efforts must therefore add something to their definition of justice. It is no small wonder that libertarians oppose them as unjust, given their definition, for they are certainly not equitable. You must draw a different kind of line to justify these kinds of policies. Only functional natural law draws a second line limiting freedom. That line traces the arc of human needs and places persons either on the plus or minus side of the line, and may be termed the baseline of kind and degree. Those who have enough are the society’s haves, with sufficient resources to meet their needs. Those who do not have sufficient resources to live human lives are the have nots. Now there is no question that most of our needs cannot be filled by government and even those that satisfy contributive and retributive government require our active preference. Government may build the roads or provide the education. We have to travel them and learn for ourselves. Government may provide the laws and the means to enforce them. We have to know and sanction the laws for those efforts to succeed. The sticking point is less government’s retributive or contributive efforts than its distributive duties to justice. In a civilized society, those who are haves allocate resources to lift the have nots to sufficiency. They do this because they have excess resources and recognize that true needs are also human rights because they form the baseline for our flourishing and for human dignity. We see only the distributions: the unemployment insurance, the family assistance, Medicaid. But these are useless without the active efforts of citizens to use them to satisfy their own needs, and their necessity is independent of fault or fate (see “Needs and Rights”). Government can only facilitate the satisfaction of a very few human needs, but it is the only possible conduit for those few and is as natural in that function as the family that provides subsidiarity in love or the preferential freedom that grants each of us moral responsibility and the dignity that comes with it. It is our humanity that earns us an equality of kind that verifies the self-evident truth: all men are created equal. We are all equally human in kind and therefore all equally entitled to the goods that allow us to live fully human lives. Libertarians either because of their admiration for liberty or because they embrace a contractarian view of political power do not recognize this line. That is a mistake.
Allow me to quickly acknowledge two difficulties. First, it would be helpful if there were a bright line separating needs from desires. We are all entitled to the satisfaction of our needs. We are not entitled to the satisfaction of our desires. And this entitlement is no guarantee that we will use our moral freedom to procure them. The border of need and desire must be clearly understood in order to define haves and have-nots. All of the egalitarian programs that seek to level wages and entitlements misunderstand the distinction between kind and degree. No one is entitled to an absolute equality that would be impossible to impose in any case. In a just polity, persons are entitled to satisfy their most indulgent desires once they have ensured that all of the other persons in the polity have met their needs (see “One-Armed Economics and Wealth Creationism“). This pursuit of desire properly produces a difference of degree rather than kind. Once all are haves, then differences in wealth and opulence become matters of taste rather than justice. Clearly, an understanding of this difference justifies both the progressive income tax and the estate tax so as to guarantee equality of opportunity for each generation. It also justifies Lamborghinis and macmansions, again provided all in the polity are haves. In essence, all must be haves in terms of equalities of kind before they can consider inequalities of degree as just. The second difficulty involves the element of compassion the polity incorporates into its evaluation of how aggressively to evaluate and identify who is a have-not. In a perfect world, we would be able to distinguish those who cannot meet their needs because of circumstance from those whose failure is chronically their own fault. This kind of pursuit more resembles the courtroom than the legislature, and requires wise adjudication. Let us acknowledge that this effort will never be perfect. Some persons fail to achieve the equality of kind they deserve through no fault of their own while others receive more than they are entitled to. But then again, some persons will be born with silver spoons in their mouths and find their life path paved with diamonds. These are the impossible calculations of fairness that can never total relative systemic, psychological, characterological, accidental, or moral factors with any degree of competence. Trying to factor such issues is an exercise in self-delusion. Let libertarians and egalitarians agree that justice requires that all receive their due. All are due the satisfaction of their needs and in a truly just polity, every failure in that lifelong quest will be understood as preferential failures of the moral agent. We are very far from that level of clarity (see “Income Inequality“). That must lead us to accept that at present our striving for justice in any real-world application implies more striving than justice. But as our desires are negotiable and our needs are not, the question can be summarized thus: Is ensuring that all are haves in kind worth some blurring either side of the proper line marking kind and degree? In a good polity, these errors will not be egregious and will be accepted as good faith efforts by governments in the interest of citizens seeking a gradual improvement in this process. This is the dance I was referring to earlier. Bear in mind that the pursuit of equality is a doomed effort, so attempts to balance the scales will always tilt toward individual liberty, which is also where our natural instincts lie. And that is why government as the collective will of the nation in pursuit of justice must seek to balance the scales always by ensuring equalities of kind. In that sort of society, we should all celebrate inequalities of degree.
I wish to emphasize that the argument just completed is built on the foundation of a simple, traditional, and rational definition of justice: to each her due. Once accepted, that conception of justice drives a dispassionate analyst to an acceptance of the baseline of kind and degree that must regulate the dispute between liberty and equality. If this argument seems sensible to you, allow me to recommend further investigation of virtue ethics as the individual moral system that can clarify it (see “Virtue Ethics Primer”). Our interactions with individual strangers and with the ultimate stranger-writ-large that is government requires a public expression of the same moral framework, which is functional natural law as its political expression (see “Functional Natural Law and the Legality of Human Rights”). One can enter this ethical system from the macroscopic view, as I have done thus far, examining its political and social implications. But as an ethical system, virtue ethics begins with the individual as she faces the most basic human questions. Either way, from the outside in or the inside out, it is a powerful warrant for choosing the good. These complementary ways of looking at our moral life also requires us to draw the border dividing private from public interactions, which properly cleave upon relations built upon love or upon justice (see “The Moral Bullseye”).
Allow me to address one more possible objection. Some persons may find this argument unconvincing. Either they find flaws in its logic that I do not see or they embrace a virtual circle that views logic itself as personal and idiosyncratic (see “What Is the Virtual Circle?“). Or perhaps they view their own pursuits as so daunting and demanding that they cannot imagine taking such a long view of their moral obligations (see “The Problem of Moral Pragmatism”). Their response might go something like this: “I don’t care about these arguments or about they strangers they involve; what do they have to do with me or those I care about? I certainly respect the pragmatic instincts that drive us toward this kind of gated community or even fortress mentality view of our societal organization. Protecting our own is natural to us. The question of why we should be concerned about the equalities of kind due to strangers has a more primal and practical answer having nothing to do with reasoning and justice and everything to do with survival.
It can best be illustrated by the analogy of a race. Imagine that at some past moment all humanity entered into a race to secure their needs. Given the certainty of scarcity, it is doubtful from the outset that the losers of this race will secure the goods that give them a full human life. Some will flourish and others will fail. The race is run, and at the instant the winner crosses the finish line, the other competitors freeze in their place around the track. A new starting gun is fired and again the competitors race toward the goods they need to live a full human life. Freeze the runners as the winner crosses the line again, and note how they are even more widely spaced than before. If each race denotes a generation, we will find the runners ever more widely spaced, so that if we should have the winners and losers change place at some point, even the fastest runners cannot make up for the generational disadvantage they face at the starting point of their race. Now this unequal result is no one’s fault. It is simply the natural outcome of differing abilities and efforts. But the outcome is still socially destructive. This inequality that might have started with a just inequality of degree for one generation will produce an inequality of kind in future generations so obvious that losing competitors will abandon the rules. They may tackle the fastest runners or simply boycott the competition altogether, sitting on the track blocking the lanes. The analogy of a race illustrates why a sustained and unmediated liberty of opportunity will eventually produce inequalities of kind rather than degree, inequalities so debilitating that citizens will begin their life race with no hope of procuring the goods they need to flourish. The libertarian golden rule can do nothing to alleviate this problem. Indeed, it will cause it. Too much liberty will produce an inequality of kind that invalidates and ultimately compromises the entire enterprise that makes up our political and economic systems. Since all persons require the fulfillment of their needs, they will regard the arrangements of this polity as unjust—and they will be right — and will find other means to secure the goods their humanity entitles them to. Thus an excess of liberty will destroy both equality and liberty. This is why equality, of kind and not degree, so impossible to secure, is also so essential to pursue.