Notes From Babel

Kochan on Equality

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Chapman law professor Donald J. Kochan has a new essay available on SSRN entitled On Equality: The Anti-Interference Principle.  From the abstract:

[T]his Essay seeks to summarize the general equality concept, and propose that the legal discourse on equality center on a requirement that governmental power must protect and respect equal treatment and opportunity, unconstrained, not equal outcomes. It argues that, to do so, equality requires that the government engage in anti-interference with individual choices and activities, so long as these things create no negative externalities to others. Absent avoidance of harm – special designations, privileges, or classifications necessarily interfere with equality in a manner that consequently violates the Anti-Interference Principle. Such actions necessarily interfere with equality. As such, if we are serious about respecting equality, such interference actions should be avoided.

Here are a few of my observations after reading the piece.  Further explaining the anti-interference principle, Professor Kochan says:

[A]t the very least, the [Equal Protection] Clause should be interpreted to mean that where one group or class is granted a privilege or immunity, another group should not be denied the same.  The two clauses in the Fourteenth Amendment—privileges or immunities and equal protection—must be read together as supporting a general constitutional recognition of an equality concept.

. . . .  The government has created far too many privileges, but once they are created, they should be available for all people. Equality demands it. Grant nothing beyond basic liberty if you will, but once we grant some privilege or immunity then it should be made equally available without special beneficiaries.  Favoring some over others would violate the anti-interference principle.

(Italics mine.)  I’m skeptical as to the interpretive accuracy of the first paragraph.  The Equal Protection Clause grants protection of rights, but does not itself contain a substantive component.  I cannot say I’m thrilled with the advent of a new retroactive interpretive principle that would further subvert the original meaning of the Fourteenth Amendment, even if toward beneficent ends.

The italicized language in the second paragraph suggests an appealing idea—i.e., that the government’s grant of entitlements ought to force the government to ensure those entitlements are equally applied.  In the abstract, I like this for the same reason I reflexively like the proposed REINS Act, which would force Congress to approve all bureaucratic rule-making with an expected annual economic impact of $100 million or more.  If the government is going to act, it has to do its due diligence and follow-through.

In this regard, I would have liked to see an application of how this might work with respect to licensing laws.  Instead, Professor Kochan references the California same-sex marriage legal battle.  However, that issue involves too many strands of the debate over the shared borders between law and culture.  Thus, it’s not terribly useful in a discussion of an equality principle.  For example, this passage overlooks those questions altogether:

Creating an institution like marriage yet excluding segments of the population from accessing the institution and all the benefits (and burdens) available in it is differential treatment not based on a preference to avoid harm, or precluding someone from a benefit because they have done something legally wrong, but instead based on some  artificial classification based on a preference of giving more to some over others.

First, marriage is fundamentally a social institution, not a legal institution.  Thus, to suggest government “created” the institution is incorrect.  Second, and relatedly, the suggestion that the definition or inner workings of marriage improperly involves “artificial classifications” misses the point.  From a purely legal standpoint, marriage is altogether arbitrary.  It is an outworking of human nature, not legal necessity.  Legal recognition of marriage is just that: the recognition of an institution borne of the people those laws mean to govern.  As I previously explained for the law to change or add to that institution is the tail wagging the dog, a breach of the treaty between law and society.

Thus, I also would have liked to see some application of the non-interference principle and what constitutes “unacceptable negative externalities” to more vexing examples of morals legislation, such as suicide, euthanasia, animal cruelty, bestiality, prostitution, polygamy, adult incest, public nudity, profanity, stem cell research, human cloning, and so on.  The essay quotes J.S. Mill, stating that “the individual is not accountable to society for his actions.”  Thus, one is left wondering whether the anti-interference principle is essentially just another way of describing libertarianism.

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