Conversations with RBG confirms that the prime reason for Ginsburg's accolades is her relentless progressivism.
Thinking about President Obama’s second inaugural address and the ubiquity of egalitarian political rhetoric is enough to make you wonder if anything can be preserved from the reach of government. Even philanthropy itself, the unique American contribution to civil society, made by possible by the overflows from prior gains in trade, might now have to account to government for its independent work. So what does equality mean in the American republic? The inability to speak in a grounded manner about this principle seems to doom attempts to limit the size of government, protect commerce from undue interference, and uphold a robust civil society, among other worthy goals.
After Abraham Lincoln’s presidency, the American Proposition surely means that all men are created equal and have an equal right to live under the rule of law, an equal right to justice, and an equal right to work for oneself. However, one problem with a purely abstract appeal to equality is that it fails to take into account the full range of responsibilities and rights we have as persons, as embodied beings, who are simultaneously parents, spouses, workers, religious beings, and political beings. But if each citizen has an equal right to be treated as a person, does this also mean that each law must treat all persons as equal in every respect and in the same way? If so, does not the limiting principle for equality become difficult to find?
Abraham Lincoln may even have anticipated this problem with his statement that equality should be the crucial measure:
a standard maxim for free society, which should be familiar to all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors everywhere.[i]
In short, equality is a difficult beast to cage.
The better distinction that must be made at the level of constitutional discourse is between equality and egalitarianism. Equality as opposed to egalitarianism posits that each person is promised the equal right to be self-governing, to benefit from impartial enforcement of the existing laws, and an equal right to pursue happiness. We might posit as a muscular assertion of equality that it actually resembles Lincoln’s professional rise as a lawyer, self-taught, self-made, inner-directed, asking only for the opportunity to labor freely, accumulate capital, and in time to become an owner and an independent citizen.
Equality is thus the spirited opportunity to use your talents and energy to work and make a life for yourself without undue state or federal interference. Egalitarianism goes far beyond this posture and desires to flatten, to cajole, to minister to man’s needs as an abstract individual whose life is vitally shaped by welfare and entitlement policies with the goal of ensuring equality of outcome from womb to tomb. It is not hard to imagine that Lincoln, in such a state of affairs, may have actually fully succumbed to his depression rather than struggle against it.
It must pick Lincoln up at dawn in a yellow bus with flashing lights, so saving him shoe-leather, whisk him off to a remote consolidated school (financed, in all probability, by inflationary bonds), feed him a free lunch, educate him for democracy, protect him from so-called concentrations of social and economic power, eke out his income by soaking the rich, doctor him, hospitalize him, and, finally social-work him–if, as he probably will now, he turns into a juvenile delinquent. Equality, by offering him the rewards of self-reliance, encourages him to become, above all–self reliant: egalitarianism encourages him to learn to play the angles.[ii]
Moreover, egalitarianism must posit a monistic political order with no ontological density existing apart from the state and man. So professional, religious, civic, political, charitable associations exist, but do so under the weight and direction of the state, which only values them as a means to achieving greater outcomes of equality.
The real value of associational life is in the affections and forms of friendship that it provides its members, and the ways these interactions reveal men to one another, adding weight and meaning to their freedom. However, law purposed by an egalitarian telocratic end reduces the function of associational life to a utilitarian and materialist conception that is unable to comprehend the social and psychological complexity of man. The egalitarian reduction is unable to contemplate man’s dignity and his inherent philosophical and religious inclinations that lift him above the state, which limit and relativize this entity. If the end of the political order is egalitarianism and its inevitable materialistic anthropology then religion is reduced to amity and not defined theological commitments, communities are orders of administrative convenience and not shared loyalties, and associations must be defined as extended arms and hands of the state.
The failure to ground equality in self-government and the duties that arise from it, as these in turn guide the exercise of rights, has greatly contributed to our unbound Fourteenth Amendment jurisprudence and its rule that equal protection entitles individuals to laws that will provide, in fact, equal protection, that is to say, “revising existing laws until they confer equal protection.”[iii] One does not have to think too hard to grasp that the acceptance of this argument has required a legal revolution directed by the Supreme Court to effectuate it.
The challenge for advocates of restrained government, however, is to argue that this program of constitutional development does not have to continue indefinitely and inevitably. We are free to reimagine a federalism for this century that is consonant with the original constitutional consensus, revised to include the progress within our constitutional tradition, and one that permits the opportunity for the principled compromises that reconcile opposed understandings of liberty and equality and morality and religion. To do so will require a theory justifying the practices of our constitutional order. The pillars of such conservatism must begin with and remain in conversation with the Declaration of Independence, the Philadelphia Convention of 1787, The Constitution and the Bill of Rights, and the Federalist Papers.
More to come on what this approach, this form of conservatism, might look like.
[i] Abraham Lincoln, Selected Speeches, Messages, and Letters, ed. T. Harry Williams (Holt, Rinehart, and Winston, Inc., 1957), 72—73, Speech at Springfield, Illinois, June 26, 1857.
[ii] Willmoore Kendall, The Conservative Affirmation in America (Regnery Press, 1985), “What is Conservatism?” 18.
[iii] Willmoore Kendall, Willmoore Kendall: Contra Mundum, “Equality and the American Political Tradition,” 354.