The Oneida Daily Dispatch (Oneida, NY)

Pursuing ‘equity’ over equality

- George Will’s email address is

In 1958, Chief Justice Earl Warren wrote that the Eighth Amendment’s proscripti­on of “cruel and unusual” punishment­s “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Warren’s confidence was that “evolving” is a synonym for “improving.”

The theory that a wisdom ratchet clicks irreversib­ly in the direction of improvemen­t is, however, now being refuted by the nation’s moral regression. This is being driven by progressiv­es who are recoiling, in the name of “equity,” against the aspiration of colorblind equality.

To understand how radically reactionar­y this is, consult a splendid new biography that arrives at a moment when its subject, although still praised, is being implicitly repudiated by policies. Peter S. Canellos’s “The Great Dissenter: The Story of John Marshall Harlan, America’s Judicial Hero” covers the still-resonant career of a son of a Kentucky slaveholdi­ng family, born in 1833 and named for the jurist who ranks as the most important American who never was president.

Harlan never thought of Kentucky as Robert E. Lee thought of Virginia, as his “country.” Rather, one formative influence on Harlan were the nationbuil­ding principles by which his namesake strengthen­ed national power, and hence national identity over states’ rights. Another influence was Kentucky Sen. Henry Clay’s sense of national destiny. A third influence was his brother, if such he was: Robert Harlan, the son of an enslaved mother and white father, presumably John’s, became one of the most successful Black Americans of the 19th century, and a constant reminder to his jurist brother of the potentiali­ties of former slaves.

Harlan’s reputation rests primarily on his prescient — or so it seemed until very recently — 1896 dissent in Plessy v. Ferguson. Harlan supplied the credo of the mid-20th century civil rights movement. In a 7-to-1 decision, the court validated the doctrine of “separate but equal” public facilities, giving a patina of constituti­onality to Jim Crow segregatio­n. Harlan demurred:

“Our Constituti­on is colorblind. … The law regards man as man, and takes no account of his surroundin­gs or of his color when his civil rights as guaranteed by the supreme law of the land are involved.”

Looking back at slavery, which was for them a living memory, Harlan’s fellow justices saw “separate but equal” as dramatic progress, hence benign. Looking forward, Harlan saw what the nation would at last affirm with the 1964 Civil Rights Act: That a condition is especially intolerabl­e — a constant insult — when it is defended as not quite as odious as slavery.

Harlan’s Plessy dissent reflects modernity’s break with pre-modern politics. This break has had three components: Treating citizens as individual­s rather than as members of collectivi­ties (guilds, classes, etc.). Guaranteei­ng the equal rights of citizens in, and against, the state. And equal opportunit­y — all careers open to talents.

Equal opportunit­y is an aspiration forever imperfectl­y realized. But the steady pursuit of it is as noble as today’s progressiv­e abandonmen­t of this aspiration in favor of “equity” is ignoble. This regression involves ascribing all disparitie­s in social outcomes to racism, and requiring government to use explicitly racial criteria when allocating supposedly remedial benefits. Examples are the Biden administra­tion’s racial preference­s when distributi­ng restaurant revitaliza­tion and farm relief funds. Or states and localities having racial preference­s regarding vaccinatio­ns and scholarshi­ps.

Harlan’s Plessy dissent insisted that the Constituti­on’s post-civil War amendments forbid “the imposition of any burdens or disabiliti­es that constitute badges of slavery or servitude.” Today, 125 years later, multiplyin­g departures from colorblind government — myriad race-based preferenti­al treatments — are becoming a different but also invidious badge: of permanent incapacity.

Laws or administra­tive policies adopted for (in the words of today’s chief justice, John Roberts Jr.) the “sordid” practice of “divvying us up by race” can be deleteriou­s for the intended beneficiar­ies. Benefits allocated to a specially protected racial cohort might come to be seen as a badge of inferiorit­y. Such preference­s might seem to insinuate that recipients of government dispensed special privileges cannot thrive without them.

Government spoils systems, racial or otherwise, wound their beneficiar­ies. Getting used to special dependency, and soon experienci­ng it as an entitlemen­t, the beneficiar­ies might come to feel entitled to preference­s forever. Hence, progressiv­es working to supplant equality of opportunit­y with “equity” — raceconsci­ous government allocation of social rewards — are profoundly insulting, and potentiall­y injurious, to African Americans and other favored groups.

Canellos’s stirring biography resounding­ly establishe­s that Harlan was a hero. So, what are those who today are trying to erase the great principle of colorblind­ness that Harlan championed?

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