December 7, 2017


How is Equality Baked into Our Constitution? (Vincent Phillip Muñoz, December 5, 2017, American Greatness)

Phillips in effect assaulted the dignity of Craig and Mullens. He assaulted their dignity by refusing to recognize the legitimacy of their marriage and the moral propriety of their sexuality. In our new religion, the self--the identity that we put forth to the world--is the new deity. Denying the "self" of others is heretical.

It is a violation of equality because equality in this view means having one's identity affirmed by others. To be equal means to be recognized in one's identity, whatever that identity may be. The act of recognition itself is necessary to the realization of equality. If one's identity is not respected or recognized or affirmed--if one is "disrespected," to use an awkward term--one is denied equality.

The older understanding of equality was different. The older understanding, the founders' understanding that animated our original Constitution, held that we are equal in our natural liberty--we each equally possess dominion over our own lives and therefore over our own labor and faculties. And thus we can choose to labor or choose to contract with one another when we, the possessor of these things, see fit to engage them. We cannot be compelled to use them. Equality in this older understanding was realized, as Lincoln said in Peoria in 1854, by letting "each man do precisely as he pleases with all which is exclusively his own."

The older understanding of equality included a presumption of liberty--an individual was free to employ his labor or not according at his own discretion--this was an essential aspect of what it meant to be free--the ability to own and control one's own labor.

We've recognized certain exceptions to this freedom. In situations of monopoly or governmental licensing or privilege--then if one was generally open for business, one had to take all-comers. And, of course, there had to be an exception for race because of our original sin of slavery and continued denial of justice through legally enforced segregation--sins that involved denying black Americans the equal freedom to control their labor and enter freely into contracts with others. These were the exceptions to the presumption of liberty, a liberty that followed from our natural equality.

The older understanding of equality held that if you didn't do anything to another person--if you just left him alone--then you did not harm him. Again, Americans have made certain exceptions, notably for race. But these were exceptions. True, expressing one's opinions alone might offend someone. In the older understanding, however, as long as you did not interfere with another's right to express his opinions or in some way interfere with his God-given natural and equal liberty, speech alone couldn't harm another.

The new progressive understanding is different. Speech and the expression of opinions that fail to recognize the self-chosen identity of another inflict what is now called "dignitary harms." Speech that offends protected classes can be shut down--this is what we are seeing on college campuses all over the nation--and businesses like Masterpiece Cakeshop that refuse to engage in commerce for reasons associated with certain protected identities can be fined or sanctioned.

This new view of equality--that equality requires affirmation by others--is incompatible with our true understanding of freedom.  

Equality and liberty are significant political issues, but what's really missing in the progressive understanding is a simple sense of decency.  The demand for recognition is a form of coercion.   Regardless of how you feel about a baker's politics or religion, he has no capacity to force his views upon you until you attempt to enter into a business transaction with him.  There is no compelling social reason that you should be allowed to force yours on him.

Posted by at December 7, 2017 6:29 AM