EQUAL PROTECTION

"No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny any person within its jurisdiction the equal protection of its laws."

So the U.S. Constitution says. The latter phrase, calling for equal protection under law, is of central importance to our constitution, to our way of life, and to our basic human dignity.

All may be "created equal," but from the moment of conception inequalities emerge. Some are blessed, by God and by nature, with great intelligence, athletic ability, or beauty; others cursed by congenital handicaps, disabilities, and diseases. Some are born into loving and stable families; others into broken homes filled with drugs and abuse. Some parents have the money required to induce the broader society to provide their children with extensive resources and support; others have little money, and must raise their children in unsupportive environments. All these advantages and disadvantages are present even before a person begins to make his or her own choices and mistakes. For the worst off, mistakes made in youth - with drugs, violence, sexuality, relationships, learning - often cannot be recovered from later on. And inequality within the United States is modest when compared with inequality between people living in the United States and those living in the poorest countries, where mere survival is by no means assured.

Let us not confuse two different ideas, each of which can be expressed by the word equality. This is not about having the government offset those inequalities that arise elsewhere, in order to make people more equal. That dream seems to have been rejected here in the United States, by a society that seems to have forgotten all about the unearned advantages and disadvantages that people accrue before they make any choices or efforts of their own. We are a society in which most people are, in fact, quite well off by global and historical standards. We like to tell ourselves that our affluence, comfort and security is something that we have each earned ourselves, by ourselves alone, that we fully deserve, for which we have no need to be grateful to anyone, and for which we owe nothing in exchange. It logically follows that if some in our society lack affluence, comfort and security, it is their own fault, the result of their own inadequacy or (what many believe to be the same thing) the inadequacies of their parents.

Thirty, forty and fifty years ago, many Americans believed that the government, the one institution in our society with the right to compel individuals to do that which they do not choose to do, should use that power to right historical wrongs, to overcome personal disadvantages, even to offset, to the extent possible, the consequences of one's own bad personal choices. Other Americans, however, were unwilling to pay the cost. They eventually turned the entire focus of public policy to bad personal choices alone, and the attempt to have the government actually increase overall equality came to an end. Therefore, this is not a discussion of equality in the broad sense of thirty, forty, and fifty years ago. It is a discussion of equality within the public sector alone - in the allocation of its burdens, the distribution of its benefits, and the enforcement of its restrictions on personal and organizational conduct.

Amid all this "naturally occurring" inequality created by nature, by history, by wise or foolish individual choices, and by the effect on one person of decisions made by other people and their organizations, there is supposed to be, here in the United States, here in New York State, here in New York City where I live, one sphere in which all are in fact equal - as citizens in our relationships with the government. Equality under law is expected to provide each person, even those with the fewest personal and financial resources, with a minimum level of inclusion, dignity, security and comfort. The unfortunate reality, however, is that our country has often failed, to the extent that it has even tried, to meet even that modest standard of equality - at the federal, state, and local level. Instead, the public sector often replicates, or even exacerbates, the inequalities generated elsewhere. In case after case the government, with the power to compel people to do what they do not wish to do, is using that power to make the less well off even less well off, the less influential even less influential, the less secure even less secure - all while protecting the better off from the consequences of free choice in the marketplace, or the consequences of their own decisions.

Sometimes public policies and practices generate inequalities among groups of people. Rising public debts and federal social security policy, for example, virtually ensure that the next generation will be worse off in old age than the last, despite having paid in far more in social security payroll taxes. Public school funding policies, along with land use regulations that allow the affluent to concentrate in exclusive communities while keeping out the less well off, provide the affluent with superior and the poor with inferior public educational opportunities. The political influence of those who produce public services, as employees or contractors, frequently permits them to provide inferior services at excessive cost, even as they insist on quality goods and services, at fair prices, from private sector workers in exchange. Tax law changes continually move money between one large group of people and another. These inequalities are bad enough.

What is worse, however, is the increasing tendency of elected officials at the federal, state and local level to spend much of their time - and in the State of New York most of their time - providing special, differential treatment for well connected individual people and business firms, unions and industries, one or a few at a time. The possibility that governments would get into the business of dispensing special favors has always been a concern. Most state constitutions, for example, have provisions limiting legislation to "general laws" rather than "special laws." Consider Article 3, Section 17 of the New York State Constitution, which prohibits "granting any person, association or individual any exclusive privilege, immunity, or franchise whatever." To get around such prohibitions, there are many examples of "special" laws disguised as "general" laws, with so many conditions placed on their applicability that they could only apply to one person, one group, or one situation. Such laws are rarely struck down by state courts; only when there is a politically and legally savvy, well financed, organized opposition.

Yet government boards and bureaucracies routinely make one case at a time determinations, and elected officials routinely intervene in those determinations. Whose child gets the talented, motivated teacher in second grade, and whose child gets the uncertified teacher who takes a sick day after every holiday? Which businesses get tax breaks to "create and retain jobs," and which other businesses must pay their share of taxes and then some despite, as all businesses do, creating and retaining jobs? Which elderly person is sufficiently incapacitated to receive publicly funded home health care services, and which will have to manage on her own, or with the help of her family? Which person gets a special zoning permit to open a health club, and which does not? Are tariffs used to raise prices to benefit the steel industry, the sugar industry, or the apparel industry? Are cartels permitted to raise prices in the dairy industry or the cable industry? Often there are formal, seemingly fair procedures to decide questions like this. After sixteen years in state and local government, I can assure the reader that such procedures generally have little to do with the actual decisions. Bureaucrats are often left with the nauseating task of drafting "rationales" for political decisions after the fact, rationales that are little more than rationalizations.

It is said that we have a limited government, but what is it limited to? Some even argue for "less government," but what do they want less of? Every year, more and more people and groups ask for more and more public services, public funding, public protection from economic and social change, public regulation and control of personal or businesses activities. That is, control of the activities of other people, and of other businesses. And while some are asking for expansions of government services and restrictions, others are seeking exemptions from the burden of paying for those services, or from living within those restrictions. Indeed, the very same person or group can be on both sides, asking for more funding for himself and more restrictions on others on one day, and asking for fewer burdens and fewer restrictions on himself, for the benefit of others, on another day.

To address those competing demands we have two competing political parties and, in theory, two competing philosophies. Democrats and liberals, it might be assumed, are in favor in greater demands on individuals for contributions to society - by everyone; greater restrictions on organizational behavior - on everyone; and more public services provided and guarantees made by society to each individual - to everyone. Republicans and conservatives, it might be assumed, are in favor in smaller demands for contributions to society - by everyone; greater restrictions on individual behavior - on everyone; and fewer public services and guarantees made by society to each individual - to everyone. One might expect that these two points of view would end up compromised in the middle - with everyone required to make a moderate contribution, required to accept moderate restrictions, and entitled to expect moderate services and guarantees, with the actual extent of these depending on the results of the last election.

That is not, however, the way the compromises seem to work. To keep the cost of government down to a level Republicans and their influential backers will accept, Democrats often agree to very little in the way of services and guarantees for some, while insisting on extensive services and guarantees for others. To keep the amount of services and guarantees high enough for Democrats and their influential backers to accept, Republicans often agree to high taxes on some, while pursuing extensive tax breaks and exemptions to others. Often, in fact, those nominally in one political party are on the other side, with Republicans pursuing additional funding for some, and Democrats handing out tax breaks and exemptions to others. And as for restrictions on activities, a "liberal" is now someone who believes that marijuana should legalized and tobacco should be outlawed, while a "conservative" is someone who believes that begging is a quality of life crime and telemarketing is constitutionally protected free speech. Both want the government off "our" back, but want "them" controlled for the common good. (A libertarian is a liberal who has been mugged by a Co-op board or homeowners association.)

In reality, there are so many logical contradictions in the policies that these parties pursue that it seems unreasonable to give them credit for having ideologies at all. They are better described as two tribes seeking advantages for their particular insiders. The practice is bad at the federal level, where special handouts and deals are attached to any and all bills required to do the public's essential business. It is worse at the state level, at least here in New York State, where the bills required to do the public's essential business have been virtually done away with, and the special handouts and deals pass on their own virtually without opposition.

I am not foolishly contrasting the corrupt present with an idealized, and historically inaccurate, past. A century and a half ago, I am aware, Afro-Americans were enslaved; a century ago they were lynched with impunity; a half century ago they found it difficult to vote in much of the country. Eighty-five years ago women could not vote, farther back in history they could not own property. During the Civil War the affluent could buy their way out of military service; during the Vietnam War they could avoid it by going to college. All of these inequalities under law are now gone. All of them, however, have been gone for 30 years or more, and there have been few improvements in equality, even in the narrow sense of equality within the public sector, since then. In fact, inequality in the public sector seems to be increasing.

Moreover, unless you happen to be at risk of enslavement or imprisonment, inequality under law matters much more today than it did 50, 100 or 150 years ago. Federal, state and local governments take in, and pay out, a much larger share of our society's resources. And they do so of necessity, in order to provide the public services required for a post-industrial, technological society to function. A bright, hardworking person cannot simply go to the frontier, seize some land, and start subsistence farming in the 21st Century. Success and failure is determined in large part by education, largely a government-provided service. A century and a half ago, one could go through one's entire life paying little in taxes and requiring little in public services. Anyone who says they do not, have not, and will not require public services and protections is lying; anyone who isn't paying a substantial amount of their income in taxes - directly or indirectly - is cheating. Precisely because the government is more important, the stakes are higher.

Why is public sector inequality increasing? At the state and local level, the stratification of people into homogenous localities is at least part of the cause. In 1950 rich and poor, black and white, immigrant and native tended to live in the same big city, small town, or rural township. Certainly attempts were made to tax the powerless more, through unequal property tax assessments, and to service the affluent and influential more, through segregated and unequally funded schools. But there was a limit to this and court decisions - one man one vote, school desegregation, etc. - were shrinking the scope of inequality within areas covered by a single local government even further. There is a natural redistributive effect of public services. Taxes are levied in proportion to income, spending, or property wealth, so the poor pay less even if the tax system is not arranged to favor them. If services are provided equally - if the poor receive an equal education in public schools and colleges, equal protection from the police, have an equal right to walk down a public sidewalk or to use a public library - then the less well off are better off than they would have been if those public services did not exist. And up until, say, 1965, the expansion of public services did increase equality in this way, and helped to make the American mass middle class possible.

Today, rich and poor, black and white, immigrant and native tend to live in separate municipalities and school districts. In a major metropolitan area such as New York, they live in separate counties and even states. By separating into exclusive enclaves, the affluent receive superior schools and other public services at a lower tax rate, while the worse off receive barely functioning public services at a high tax rate. The relative quality of their public schools, parks, police protection, and infrastructure, therefore, is often little different than if these had not been public services in the first place, but rather had been purchased in the marketplace. True, even in the worst off school districts even the poorest receive the equivalent of subsidized child care, but this could, in effect, be considered a subsidy for low wage employers, who would have had to come up with some way to enable employees to work in any event. The equalizing effect of local government is greatly diminished, and the importance of this is best understood when one remembers that aside from national defense and the post office, local government accounts for two-thirds of all public employment, and most public services. The federal and state governments take in more money, but they send most of it right back out in payments to individuals and aid to local governments. Aside from a tax bill and, for some, a check, local government is government.

At the federal level, inequality has been rising, and hypocrisy increasing, since the 1994, 1996, and 2000 elections. In 1994, the Republican Party took Congress after portraying "big government" as a sinkhole of special favors for the undeserving poor, minorities, immigrants, and those living in older central cities. The Clinton Administration responded by agreeing to substantial reductions in government funding for these very groups, whether deserving or not, as a strategic move to preserve funding for those who really matter to the Democratic party - the elderly and producers of public services, either in government or in government-funded health, housing and social service non-profits. Traditional liberals - who wanted more government spending, protections and actual services for everyone - were outraged, but Clinton Democrats knew that the losers were unlikely to turn to the Republicans, who despise them. "Liberals," in effect, agreed to less public money and services for some people, to preserve more public money and perks for, well, themselves. And so public spending on education and health care, and thus public funding for the teachers' unions and health care industry, are likely to go on rising, yet there is no universal health care, as Clinton promised in 1992 and Bill Bradley promised in 2000. Given the quality of public education provided to immigrants, minorities and the poor in older central cities, it is not much of an exaggeration to say that the United States does not offer universal education, either.

Flush with success, traditional "small government" conservatives started talking about reducing public services, protections and guarantees - for everyone, including middle-income white people living in suburbs and the Sunbelt, and the elderly. They took aim at defense pork, farm subsidies, and high Medicare reimbursements, among other things. It turns out, however, that virtually no one thinks of government money for themselves as wasteful "big government" spending. For swing voters in the suburbs, and many "conservative" voters in the Sunbelt, tax revenues collected elsewhere and spent on themselves is "effective" government. The G.O.P. lost the 1996 federal election, with the blame cast on "extreme" conservatives who were, for the most part, defeated or silenced. It spent the next four years assuring suburban and Sunbelt America that they were in favor of small government for other people, not for them. The "Republican revolution," it turns out, was limited to cutting spending for the benefit of the poor, minorities, immigrants, and those living in older central cities, and then increasing it for others by a greater amount. It worked. In 1999, thirty-two states, most in the South and West, received more in federal spending than they paid in federal taxes. President Bush won twenty-four of those states in 2000. A few conservative commentators are outraged by rising pork barrel spending, but most are happy with "compassionate conservatism." That is being compassionate toward our people, and conservative toward them.

And the end of this process, inequality in taxation and public services has increased even further. Things aren't much better when one moves from the sphere of taxation and public services to the sphere of criminal justice, after a decade of "law and order" crackdowns on street crime balanced by an unchallenged explosion of white collar crime, topped by a Presidential pardon for a convicted tax cheat. With these compromises and deceptions, what is left of ideologies? What you are left with is two hypocrisies, with contradictory positions and rationalizations buried under shrill rhetoric and appeals to tribal loyalty. The divide that matters today is not between liberals and conservatives (to the extent that these two terms have any real meaning), Republicans and Democrats. It is between those "persons, associations or individuals" who seek and receive "any exclusive privilege, immunity, or franchise whatever," and everyone else. The former are represented by the Democratic and Republican parties. The latter are, for the most part, not represented at all. In public policy, at all levels of government, the truth is that the real decisions are not about "what." They are about "who."

Even among those who think about public policy as something other than a lobbyist, there is far less interest in, and discussion of, what is best for everyone. What appears to have happened to American thought involves the two different concepts of the word "freedom" that emerged in the 1960s and 1970s, one good and the other (for lack of a better word) evil. The good "freedom" might be called freedom of identity, or of lifestyle. For a brief period after World War II, many Americans believed that if you didn't look like, act like, think like, and live like everyone else, then you shouldn't be accepted. Think of the children's TV show "Rudolph the Red Nosed Reindeer," in which Rudolph and his companions become outcasts at the North Pole simply because Rudolph's nose glows, and his friend is an elf that wants to be a dentist instead of making toys. The idea of America as a land of social conformity is mostly gone, but politicians can still get elected by manipulating 35 year old resentments, with tribal appeals to racial and ethnic minorities, homosexuals, rednecks who like to hunt and shoot, and others who feel aggrieved.

The evil idea of freedom is freedom from responsibility, which has both a liberal and a conservative version, depending on the responsibilities one does not want to meet. Liberal Democrats have sought to attract votes by telling people that they do not have personal responsibilities to earn their own living, and to take care of their own children. To knowledgeable critics, their excuse for irresponsibility has been "social realism," the assertion that (for example) single parenthood is the way people live today (because they are free to live that way), and thus policy "programs" must be designed to make this work. And they have cultivated a sense of entitlement to assistance, based on a cult of victimization, causing the poor to feel anger at anyone who dared to make demands on them.

Conservative Republicans have sought to attract votes by telling people that they do not have social obligations to their communities, to the less well off, to the rest of the world, and to the future, particularly with regard to taxes and debt, but also with regard to the environment. To knowledgeable critics, their excuse for irresponsibility has been "economic realism," the assertion that the affluent are self interested and mobile, and if you make demands on them for the benefit of others, or for the benefit of the future, they will take their assets and go elsewhere, leaving you worse off than before. They also cultivate a sense of entitlement, telling the affluent that their position of privilege is the result of their own moral superiority, not social advantages, and that they do not owe anything to anyone. Democrats appeal to the hostile, irresponsible poor. Republicans appeal to the self-righteous, irresponsible rich. And both try to appeal to the whining, irresponsible people in the middle. Poor little me!

In the face of this, I have come to take a simplifying view of policy and politics at all levels of government. I now believe that the burdens of government, financial and otherwise, should be limited to those burdens that the government is willing to impose equally on everyone, or at least on everyone in equal circumstances. I believe that government protections and guarantees should be limited to those that the government is willing to provide equally to everyone, or at least to everyone in equal circumstances. I believe that public services should be limited to those the government is willing to provide equally to everyone, or at least to everyone in equal circumstances, and to those that people are required to pay for, or to make sacrifices in exchange for. I believe that the only circumstances that should be used to differentiate people in order to allocate burdens and benefits are those that are clear, simple, irrefutable, nearly impossible to fake, and do not rely in any way on judgment. I believe that restrictions on personal and business conduct should be limited to those that the government is willing to enforce equally against everyone, no matter how affluent and influential they are, no matter how well paid their attorney is.

Given this standard of equality, it is likely that readers who consider themselves to be "liberals" or "conservatives" will think of me as being on the other side. That is certainly the case among those who know me personally. In some cases, I believe that achieving "equal protection" would require eliminating government services, protections, and guarantees that are not available to everyone, and eliminating business regulations and criminal laws that are not uniformly enforced. In other cases, I believe that achieving "equal protection" would require expanding government services, protections, and guarantees that are not available to everyone until everyone is covered, and increasing the scope and enforcement of business regulations and criminal laws until every violation is aggressively pursued and prosecuted. I am so offended by the rising tide of unequal treatment that in some cases I am prepared to go either the "liberal" or "conservative" route to equal treatment. Both the Goldwater and the McGovern solutions are better than what we have now. I may not be in favor of increasing or decreasing the size of government, therefore, but I am in favor of decreasing its scope in order to universalize its application.

More and more, our federal, state and local governments try to take everything that anyone believes is wrong and make it illegal. This has two negative effects - it leads to limited, selective, and (in some cases) discriminatory enforcement, and it allows less-than-nice people to justify their conduct by asserting that anything that isn't illegal also isn't wrong. More and more, our federal, state and local governments seem to act as if every problem in society is caused by, and can be remedied by, some change in public policy that either adds, eliminates, or modifies a public program or tax. This leads to a complicated series of small initiatives that drain resources away from the basic services that ensure basic needs. Each of these initiatives, grants, programs, and regulation, though irrelevant to most people, generates publicity, which elected officials can use to get re-elected. Each also generates an interest group, highly motivated to participate in the political process and highly focused on its continued existence. The more limited the scope of government, the more likely it is to have the resources to accomplish those things that it must do, not just for those who know how to work the system, but for everyone. Everyone should expect less from the government, but they should actually get what they expect, and to the same extent as everyone else.

The government is but one part of our society. Anyone who believes that people should receive additional services and guarantees, over and above those provided by the public sector, may contribute additional time and money voluntarily to charities - and have the government match their contribution, in part, through a tax deduction. My family does so, but we limit our charitable contributions to organizations that assist those less well off than we are, while in many cases the federal government and the State of New York are redistributing our income to those who live far more extravagantly than we do. Similarly, anyone who believes that personal or business conduct should further restrained for the benefit of the common good, above and beyond the restrictions imposed by law and backed by the threat of imprisonment, are free to restrain their own conduct for the benefit of others, as we try to do, and to use social pressure, education, persuasion, boycotts, investment and buying decisions in the marketplace to influence others to do the same. How about those who believe that life is rat race, and who want to come out ahead by being the biggest rat? Perhaps that is tolerable, though not laudable, in personal and business relationships, since these are optional and voluntary. The government is neither, so having it become a playing field of competitive advantage seeking and victimization is simply not acceptable.

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