Of General Interest
For Whom the Bells of Freedom and Equality Toll
I’ve got a hammer,And I’ve got a bell, I’ve got a song to sing, All over this land. It’s the hammer of justice, It’s the bell of freedom, It’s the song about love between My brothers and my sisters, All over this land.
—Peter, Paul & Mary
A LAW DAY DILEMMA
Why do Law Day themes exact an unattainable promise from our system of justice?
Under differently worded banners, Law Day themes often commemorate a new twist on liberty and equality. These twin themes often impart the notion that if we increase our liberties, equality will follow suit, and if we enhance equality, then cherished liberties will correspondingly expand.
It is exhilarating to believe that liberty and equality build on each other. We like our liberty and equality that way. Straight up. Undiminished. Undiluted. Like the rallying cry of the French Revolution: Liberté, Égalité, Fraternité.
Revered notions of liberty and equality are found in the Declaration of Independence, the Constitution, and the Bill of Rights. Even the Pledge of Allegiance merges ‘‘liberty’’ with ‘‘justice for all.’’ These solemn principles are at the foundation of our legal system, and we envision them to be embraced in a blissful union.
The legal profession’s ability to uphold both liberty and equality becomes a gauge by which the public assesses our everyday performance. Shortfalls often count as a strike against the legal profession in these cynical times.
On Law Day, the day dedicated to the celebration of our laws, liberty and equality become two peas in a pod. On this day, legal professionals nurture faith in the belief that the forces of equality will triumph if freedom is just given enough of a chance, and that the bell of freedom will resonate with clarity as long as it is struck by the forces of equality. We unite liberty and equality as though they are directly proportional to each other. The Law Day cup of freedom overflows with equality. On every other day of the year, however, liberty and equality display entirely dissimilar qualities.
Even if the prior record refuses to conform to our conception of liberty and equality, on Law Day we order history to accommodate this national obsession: that liberty and equality are mutually reinforcing properties.
History, however, memorializes the timeless struggle and inherent conflict between liberty and equality. They are inversely related properties. By hoisting the banner on one, we lower the boom on the other.
These two properties have been largely assigned to the protective custody of the legal profession, and we rightfully take pride in this sacred trust. Accordingly, we might not readily admit to the inherent polarity between liberty and equality. It is time for the legal profession to take a more realistic account of these treasures. Law Day is a distinctly good time to start.
LAW DAY THEMES
In 1958, President Dwight D. Eisenhower established Law Day to strengthen our heritage of liberty, justice, and equality under the law. Four decades later, we find that the cause of equality has not run on a parallel course with liberty.
On May 1, 1999, we celebrated the 42nd Law Day. For the third consecutive year the theme was: ‘‘Celebrate Your Freedom.’’ In 1999, we were urged to emphasize ‘‘a particular aspect of freedom under the law—the quest for equality.’’1 Equality, in truth, often has not been an ‘‘aspect’’ of freedom, but rather the antagonist of freedom under the law.
On May 1, 2000, the Law Day theme will be, for the fourth consecutive year, ‘‘Celebrate Your Freedom’’ by focusing on the ‘‘rich tapestry that is the American experience.’’ There is, however, a sad reality to the mosaic. Some parts of the rich tapestry have become notably less rich than others. Some have just not fared as well as others. By suppressing freedoms, a level of financial equity could be restored, but it is deceptive to claim freedom will promote equality.
Hopefully, kind reader, this message will not be misconstrued as the rambling of an enemy of equality or an opponent of freedom. Both principles reside at the heart and soul of our union. Both merit our utmost attention and respect. Both will, hopefully, remain secure within the crucible of civilization we transmit to our successors. To remain true to our mission, however, we must be mindful of their conflicting properties.
LIBERTY AND EQUALITY IN ACTION
In our halls of justice, an environmental regulation prohibiting toxic fumes is found to constitute a ‘‘taking’’ of the industrialist’s Fifth Amendment property rights. Since the manufacturer’s liberties have been unconstitutionally impaired, the regulation is set aside. Investors residing in remote, unblemished, pristine surroundings reap the profits generated by this constitutionally protected toxic-spewing activity. Meanwhile, less fortunate inhabitants near the smokestack unsuspectingly absorb the emissions.
A school dress code infringes the students’ freedom to wear the attire of their choice. School officials observe that class distinctions resulting from costly designer emblems begin to vanish.
A white supremacist group flexes First Amendment freedoms by hurling racially charged epithets. The subjects of discrimination shudder in disbelief.
The human genome project is now well ahead of schedule. Health and life-insurance premiums can be expected to decline for applicants willing to disclose their genetic resistance to certain illnesses such as heart disease and cancer. Others, with less favorable genetic bar codes, will find insurance more difficult to procure.
A lobbyist for big business promotes the free international migration of people and the relaxation of U.S. immigration laws. The policies maintain employers’ access to cheap labor from abroad. American workers, jostled to the back of the job lines, experience a growing wage disparity.
A pregnant mother’s freedom to ingest the substance of choice is defended in court. Her offspring, bathed in controlled substances before birth, will not begin life at the same starting line as the child nurtured in a toxic-free uterus.
I n every case, one person’s equality bears the brunt of another’s freedom. Privatized profits resulting from the manufacturer’s smokestack came at the expense of the unwary, and notably less equal, inhabitants residing near the source of toxic emissions. The students’ equality in the classroom was attained by suppressing their freedom of choice in the fashion world. A marginalized minority bears the cost of racially motivated free speech. The insurance applicant’s freedom to shop for reduced premiums by disclosing genetic information will be counterbalanced by the insurer’s discrimination against others with identifiable genetic risks. The wage disparity between management and labor is reinforced by freedom in international migration. And the pregnant woman’s freedom to consume harmful substances was preserved by increasing the prospect for inequality in the next generation.
Liberty and equality are related to each other much as investment income is related to security. The investor can maximize returns, or the investor can maximize security. As a general rule, however, earnings on the investment come at the expense of security, and vice versa. Similarly, liberty strains under the pressure of equality, and equality bears the weight of liberty.
The investment counselor would not promise increased security in an investment as a means to increase profits. This advice would set the stage for disillusionment by the misled investor, and a malpractice action against the counselor.
Liberty and equality are fundamental to our system of self-governance. Both merit legal and ethical protection. They also merit a more realistic assessment and appreciation of the inherent struggle between them, lest we also foster disillusionment and cynicism. Liberty and equality engage in endless struggle to attain priority over each other in our legal system.
INEQUALITY AT HOME
The United States has suffered a massive erosion of the middle class in the past few decades.2
In 1960, top executives in the U.S. earned 43 times as much as average workers in their companies. By 1990, the disparity was nearly 100-fold. The Japanese top executive, by contrast, earned 17 times the wage of the average worker.3 By 1998, the ratio of executive-to-worker pay in the United States mushroomed to 419 to 1.4 Bill Gates’ net worth is more than the bottom one-half of the U.S. population.5 Recent studies reveal the income gap between the rich and the poor is greater now than ever before.6 A free hand for those on the higher pay scales has recently prospered in the United States, but it has come at the expense of equality for others.
There are surely different scales by which to weigh how equality has fared, but on the wage scale the United States has experienced a deepening inequality in the past 40 years. The erosion of inner cities and the rising disparity between neighborhoods and classes tend not to speak well for the cause of equality. On the other hand, we have become increasingly aware of the need for civility in the civic realm. Minorities and the physically challenged have benefited by legislative enactments that curtail certain freedoms. Scorecards for equality, in general, show some positives and several negatives since the inception of Law Day, but equality has not risen and fallen in unison with liberty.
Correspondingly, our freedoms have contracted in some aspects and expanded in others. Freedoms safeguarded by the Warren and Burger Courts have eroded during the past two decades. Yet aspects of other freedoms, such as First Amendment free speech, have expanded in some cases.
The pendulum on liberty and equality continues its timeless sway. The oscillation reveals an inherent contrast. They balance each other in operation. When one rises, the other descends. Law Day themes, however, nurture a belief that the causes of liberty and equality run on parallel tracks.
NATURAL HISTORY AND EQUALITY
We might think of sibling rivalry as an early expression of the tension between liberty and equality in human affairs. Only by suppressing the physical or verbal freedom of one child can a level of equality be restored for the others.
The polarity between liberty and equality might actually originate in a far more distant and historic realm. Will and Ariel Durant are the authors of a monumental work on our human history. In 1968, after completing an exhaustive 11-volume collection entitled The Story of Civilization, the Durants summarized their overall conclusions in a concise, 117-page book entitled The Lessons of History.
In Chapter III, entitled Biology and History, the Durants connect human history with natural history: ‘‘History is a fragment of biology: the life of man is a portion of the vicissitudes of organisms on land and sea.’’ In this chapter, the Durants correlate the subjects of their 11-volume work (ourselves) with basic biological principles. ‘‘Nature,’’ they observe, ‘‘loves difference as the necessary material of selection and evolution; identical twins differ in a hundred ways, and no two peas are alike.’’ The Durants found similar operational principles governing civic affairs. Within our civilization, the Durants find:
Nature smiles at the union of freedom and equality in our Utopias. For freedom and equality are sworn and everlasting enemies, and when one prevails the other dies. Leave men free, and their natural inequities will multiply almost geometrically, as in England and America in the nineteenth century under laissez faire. To check the growth of inequality, liberty must be sacrificed, as in Russia after 1917.7
We inescapably find ourselves embedded in a biological system. The laws of nature allow no exemption for the human enterprise.
After the publication of their 1968 book, the Durants would likely note that laissez faire and caveat emptor have progressively yielded to the more consumer-oriented caveat venditor. Accordingly, the cause of equality for the consumer has improved, but it has come at the expense of laissez faire. Equality for the consumer has been made possible by curtailing the merchant’s freedom.
Freedom must be honored, if only to uphold human initiative and personal satisfaction. Yet, some restrictions on liberty are needed if we are not to self-destruct by burgeoning equalities.
The historic drama persists.
The conflicting properties of liberty and equality reveal themselves not only in domestic affairs, but also internationally. There is a harsh reality about inequality in the world.
Almost one billion people go to bed hungry every night.8 Several hundred thousand slip beyond the brink of malnutrition every year. In the U.S., pets are often fed a higher protein-content diet than are many of the world’s poor.
When there is no place left to go in Manila, the impoverished inhabit a landfill. It’s known as Smoky Mountain. Here the housing is fashioned from scraps of tin and cardboard. Inequality abounds, and so does freedom for the wealthy few. Smoky Mountain is a metaphor for inequality run amok.
Five percent of the world’s population resides in the United States. This five percent consumes 25 percent of the world’s fossil fuels and 33 percent of the world’s paper, and it generates 72 percent of the world’s hazardous waste.9 The freedom to consume and pollute is exercised with more liberty in the United States than elsewhere in the world. Planetary resources could not accommodate all six billion of us flourishing with the same liberty.
The disparity could be eased by compulsory transfusions of massive wealth, but who among us would acquiesce? Who would tolerate an appreciable intrusion upon the freedom to dispose of personal savings and earnings? Should all 401k plans be depleted in the name of equality?
The thunder of inequality is muffled by the clamor for freedom.
NATURE, NURTURE, AND CHANCE
By nature, nurture, and chance, we each harbor individual strengths and weaknesses.
By nature, we are born with varying mental aptitudes and physical abilities. By nurture, some privileged children are raised in caring, compassionate, and trusting environments. Others are less fortunate. By chance, some elude crippling accidents, infectious diseases, and dreaded illness. Others do not. Some are born with a silver spoon. Others are not. Unfettered liberty will accentuate the differences resulting from nature, nurture, and chance. Categorical freedom erodes the prospects for equality.
Economic systems promote specialization. The system differentiates each specialty. It allocates more economic value to some abilities than to others. Absolute freedom in the marketplace would produce wildly divergent results for individuals. This divergence understandably offends our sense of justice and social stability. So ethical practices, cultural conventions, and laws mediate to introduce a level of equality. Minimum wage laws, the ADA, and civil-rights legislation, to name a few, establish minimum thresholds for equality.
We may strive to confer the prospects for equality upon all persons. This is a legitimate goal. Yet, it remains elusive. We are bewildered when the push for cherished liberty invades another’s promise of equality.
The inflation of equality comes to us by deflating the freedom to discriminate.
Is the conflict between liberty and equality a radical, untested idea, or was it considered by the founders of our system?
The preface to the Declaration of Independence might suggest that concerns about the conflict between liberty and equality resided beyond the purview of our founders:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
The latest bestseller on the life of Thomas Jefferson10 suggests that the author of the Declaration of Independence was not noticeably sensitive to the conflict between liberty and equality:
It was the vision of a young man projecting his personal cravings for a world in which all behavior was voluntary and therefore all coercion unnecessary, where independence and equality never collided, where the sources of all authority were invisible because they had already been internalized. Efforts on the part of scholars to determine whether Jefferson’s prescriptive society was fundamentally individualistic or communal can never reach closure, because within the Jeffersonian utopia such choices do not need to be made. They reconcile themselves naturally. (Emphasis added.)
Amid self-evident truths of equality and the inalienable right of liberty, it might, at first blush, appear that Mr. Jefferson and the Declaration of Independence brook no compromise. If the opening lines of the Declaration of Independence are the only words by which Jefferson will be memorialized, then one may conclude that he never contemplated the eternal struggle between liberty and equality. But the early verse in the Declaration of Independence was not Jefferson’s last word on the subject.
The tension between liberty and equality did not entirely elude Mr. Jefferson. He confronted the issue with knowledge that the limits to ‘‘rightful liberty’’ were circumscribed by the ‘‘equal rights of others.’’ In 1819, admittedly long after penning the Declaration of Independence, he stated:
Of liberty I would say that, in the whole plenitude of its extent, it is unobstructed action according to our will. But rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add ‘‘within the limits of the law,’’ because law is often but the tyrant’s will, and always so when it violates the right of an individual. (Emphasis added.)—Thomas Jefferson to Isaac H. Tiffany, 1819.11
Jefferson’s sensitivity to the issue was also displayed in other letters and memorabilia written after 1776. For example:
Being myself a warm zealot for the attainment and enjoyment by all mankind of as much liberty as each may exercise without injury to the equal liberty of his fellow citizens, I have lamented that...the endeavors to obtain this should have been attended with the effusion of so much blood. (Emphasis added.)—Thomas Jefferson to Jean Nicholas Demeunier, 1795.
I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties. (Emphasis added.)—Thomas Jefferson: Reply to Danbury Baptists, 1802.
The issue did not escape the attention of our forebears. The clash between liberty and equality were recognized. Mr. Jefferson himself articulated the need to identify a reasonable balance between them.
Even if liberty and equality are sometimes suspiciously antagonistic, isn’t it just more practical to follow the old line? It is alluring to tell our schools and communities that the forces of equality will triumph if freedom is just given enough of a chance, that the ring of freedom will reverberate if equality is amplified. Especially on Law Day. So why stop now?
Why might the legal profession suggest that liberty and equality can become antithetical properties?
Maybe because we engage in the search for truth.
Maybe because the communities we serve would be benefited to know.
Maybe because we live in cynical times.
Maybe because the legal profession remains the subject of cynicism all too often.
We publicly profess that liberty and equality have a unified relationship. On Law Day, we lead our communities to expect nothing less. Our communities have come to expect no less. The inability to satisfy Law Day promises on liberty and equality breeds cynicism. We visit cynicism upon ourselves and upon our profession when we introduce unrealistic and unattainable expectations.
If the public can’t get the maximum dose of liberty and equality, it becomes easier to blame the system than to explore our unexamined convictions. We become the enemy to ourselves by nurturing unreachable hopes and aspirations.
For future Law Days, we would do ourselves, and our communities, a great service by recognizing the polarity between liberty and equality. Our Law Day themes should allow for the hammer of justice to strike disharmonious chords on the bell of freedom and the scale of equality.
Only then will the public appreciate the rigors of taming the contrary forces of liberty and equality. Moreover, if we could more realistically assess liberty and equality, the public debate on formulating policies will become more respectful of competing perspectives.
The ultimate challenge for ourselves and our profession is to strike a reasoned balance between liberty and equality.
1 Division for Public Education, American Bar Association, Chicago, IL.
2 Bartlett, Donald L. and James B. Steele, America: What Went Wrong?, Andrews and McMeel, 1992.
3 Bueler, William M., An Agenda for Sustainability, CrossRoads Books, 1997.
4 Schlesinger, Jacob M., ‘‘Wealth Gap Grows; Why Does It Matter?,’’ Wall Street Journal, September 13, 1999.
5 Large, Jerry, ‘‘Tiny fraction, big gap: There’s the very rich—and everybody else.’’ Seattle Times, July 8, 1999; Lardner, James, ‘‘Unhealthy Economy,’’ The Fort Worth Star-Telegram, August 30, 1999.
6 ‘‘Income Inequality Gap at Record Level,’’ FAIR Immigration Report, October 1999, relying on a study by the Center on Budget and Policy Priorities.
7 Durant, Will and Ariel, The Lessons of History, MJF Books, 1968, p 20.
8 Brown, Lester R. and Hal Kane, Full House, W. W. Norton & Co., 1994, p 17.
9 Cooper, Mary H., Population and the Environment, CQ Researcher, Congressional Quarterly, Inc., Volume 8, No. 26, July 17, 1998, p 618, quoting from ‘‘New Perspectives on Population: Lessons from Cairo,’’ Population Bulletin, March 1995, Natural Resources Defense Council.
10 Ellis, Joseph J., American Sphinx, The Character of Thomas Jefferson, Alfred A. Knopf, Inc., 1997, p 69.
11 The Thomas Jefferson quotes were derived from the following sources: http://etext.lib.virginia.edu/jefferson/quotations/jeffcont.htm and from Thomas Jefferson, Merrill D. Peterson (Editor), Thomas Jefferson Writings Autobiography a Summary View of the Rights of British Columbia Notes on the State of Virginia Public Papers Addresses, The Library of America, 1984.