Are we clear what we mean (or even could mean) when we fight for “human equality?” In what would a truly “equal” world consist? As a lawyer, I have more than once invoked the equal protection clause of the 14th Amendment:
“No state shall … deny to any person … the equal protection of the law.”
But let us be clear: These words do not proclaim humanity’s universal equality. They assert only the right of every person under our national law to receive the same treatment that is accorded every other person in his specific situation. “All six-year-olds” are entitled to the same benefit or subject to the same school requirement.
True, the Supreme Court has given a certain few of our human qualities special attention. For example, law must behave with extra care in enforcing classifications by race. To a point, it may favor person of a class that has historically been victimized; a little “affirmative action” may be OK. But law in general is required first to make rational classifications, then to accord the same treatment to every person who fits in that class. That’s what law means for us.
We must not confuse these rather unsurprising words of the 14th Amendment with the very different proclamations of fact (not law) made in 1776 by the Declaration of Independence. It was “self-evident” that:
“ … all men are created equal.”
The founders plainly believed that, whatever categories of specific persons – thieves or mothers – that human law might come to adopt, nothing that law does could ever change this hardcore fact of equality. The Declaration of Independence clarifies this distinction ‘twixt law and fact by adding quite separately that, in addition to this “truth” of our equal natures, all of us deserve certain broadly stated guarantees:
“ … they are endowed by their Creator with certain unalienable rights.”
We simply are equal; we are so in such a way that our own nature deserves certain positive concerns, and not only from King George. This distinction between the fact and law of equality is seldom made clear in our own media discourse – and even among legal academics – but it is the most basic of human claims.
Are we in fact already “equal” as the founders assert? What could the expression mean, and how might it matter? To be understood as a fact not a right against government equality would require our acceptance of some particular and universal aspects of our own nature. But, how could this be when, at every moment we witness gross and important differences in our individual capacities – not to mention our luck? Susie is really smart; I’m not, nor could I ever be. Bill is agile and will star at basketball; I am a stumbling klutz. Is there really any meaningful quality that the three of us might share, and in the same degree? The founders plainly thought so. Or did they? Could Jefferson have found a way to ascertain human “independence” for his slaves without releasing their legal bond? Could a slave be his equal?
Equality as an existential human quality seems impossible to picture without resort to the transcendental – exactly as the founders put it. The concept, whether one likes it or not, makes Susie, Bill and myself equal in a way that the signatories could defend. We weren’t all endowed by creation with freedom from King George’s tea tax, but everyone of us can claim the same dignity as a child of God, and no less (or more) so than the King himself. We simply are equal.
How could this be so? I find no answer other than the design of every minimally rational human person freely either to seek or to ignore the true and the good – and whether or not the seeking individual always finds that true good or, instead, makes wrong choices out of well-intended ignorance. If perfection of the self comes by honest quest for right answers, we would all be equal in our freedom to make the true good our primary objective; we would thereby fit ourselves for a happy and timeless perfection we cannot imagine.
What is the relevance, if any, of “created equal” to school choice? Consider the classroom in some inner-city, low-income high school. Can the teacher invite her students – who are there by no choice of either child or parent – to reflect on this basic proposition and ponder any meaning for our true “equality” other than our universal access to self-perfection and its permanent reward? Or does the First Amendment forbid?
It is the only plausible – and happy – response I know to the many unchangeable and otherwise merciless realities of our differences. All parents should be free to choose a school that considers the concept in class.