In the movie Lincoln with Daniel Day-Lewis, a sequence depicts various of his cabinet members wrestling with the Emancipation Proclamation and the question of whether the black population is “equal” to the white citizenry, or merely “equal before the law.” Even one politician who secretly lives with a black woman can only concede the latter proposition but not the former. At the time I saw the movie this whole question left me stumped, and I still consider it a ding-dong situation—meaning the question itself does not apply.
Let’s start with the obvious case. No free person in the mid-19th century would consider a formerly enslaved population that was newly emancipated to be his or her intellectual, moral, or social equals. The free person has lived without overt coercion, without the fear of death and maiming for the slightest disobedience, with the opportunity to live as he or she wants—within reason and restricted only by social norms—and been permitted to obtain as much education as he or she desires. The enslaved person has been denied freedom, subjected to constant coercion, and forbidden an education. It is through the exercise of personal freedom, the use of one’s own reason, and the attainments of education that a person distinguishes him- or herself and finds his or her place in a society of equals. In 1863, the enslaved black population had none of this, and so could not be considered anyone’s social equals.
But this is not the core of my objection. The proposition that one person and another can be true equals in any intellectual, moral, or social sense—and here, by “social,” I mean in terms of obligations tendered and respect offered—is inane. No two people are exactly equal in any measure, not two persons of a similar race and background, not two persons of the same sex, not even two brothers or sisters. One person is always going to be smarter, more clever, or better educated. One is always going to be better natured or morally stronger. One is always going to be better liked, more respected, or due more personal consideration for achievements attained and good works performed. This is part of the human condition, in the same way that one person is always going to be taller, weigh more, or have a longer reach than the other. People come in all physical sizes, bodily shapes, moral characters, mental capacities, learned experiences, and educational developments. To try to make one person or population equal to the other—or to make yourself believe such a proposition—is a fool’s errand.1
But doesn’t it say in one of our founding documents, the Declaration of Independence, “that all men are created equal”? Wasn’t this a core belief—a “self-evident truth”—of the time? Didn’t people originally believe that all human beings could be compared and found to be no different, one from the other?
Well, not exactly. The author, Thomas Jefferson, was no fool. The quotation has to be read in the context of the second and third clauses: “that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”2 That is, they are equal—not in intellect, character, social standing, or physical attributes—but equal in the sight of their god, in their possession of certain rights, and so equal under the law.
This is why the question in the movie among the politicians of Lincoln’s cabinet so bothers me. How can mere men be asked to determine the equality of other men in any measurable dimension? How can any human being know another person or group so intimately that he or she can measure and find likeness with him- or herself or with another group?3 To make that judgment requires an intellectual and moral precision which stands outside of—and superior to—what is found in humanity. That is, the standing of a god. Other humans need not apply for the job.
So the only question left to politicians, lawyers, judges, and anyone else who operates in a legal, political, or social sphere is whether they, the emancipated black population—or any “other” in terms of the question—are equal under the law. In terms of the Declaration, the answer is “all men”—and by extension, overriding the prejudices of the times, all women, too. Anyone who qualifies as a human being is equal under the law. In the eyes of their creator, all people are equal in standing if not in quality of intellect, character, or other internal and external attributes. In standing before other political entities, such as in our republic under the Constitution, that equality before the law may be reserved for natural-born or naturalized citizens—although our law does not exempt foreigners from deserving respect and proper treatment; it simply denies them certain rights under the laws pertaining to citizens.
In our society—which I think is still one of the best in the world—people are not granted any more rights because they are smarter and better educated, or enjoy higher social standing and better political connections, or have access to more money. We have no natural aristocracy which can expect immunity under our laws. Everyone arrested and taken into custody goes to central holding until they can appear before a judge and try to post bail. That some people with money and connections will never spend a night in jail, no matter what they do, is popularly perceived as an injustice and not a proper application of the law. That people with money can buy a better defense at trial is countered in most judicial districts by the state providing public defenders to anyone without means.
Ours is not a perfect system. Injustices do occur. But this is because our society is managed by human beings; our institutions are established with good intentions but operated through the actions and perceptions of imperfect individuals. We should not try to improve this state of affairs by handing our rights and our fates over to higher orders of being such as angels, robots, or psychiatrists and social scientists. Instead, we live under a democratic system that permits average people—including their self-appointed advocates and journalists—to point out and discuss injustices, suggest remedies and alternatives, and put them up for a vote. This approach is sloppy, slow, and crude, but it works better than many more streamlined, idealized, artificial systems.
While differences in education, social standing, and wealth will not confer or deny rights under the law, and anyone who checks out as human is accepted into society and its protections, we do sometimes have to take into account marked differences in personal capability. Some people—whether through genetic inheritance, defect in the birthing process, disease, or accident—have lost the faculties that make them fit within accepted norms and so be accepted as fully capable in society. In most cases, they lack the mental capacity to function and so become vulnerable to reduced circumstances and predation by others. In some cases, they lack the moral depth or self-restraint expected of the average person and so become a danger to themselves or others. We have—any society should have—means of identifying, evaluating, and segregating these people from the rest of society.4 We do this for their own good and ours.
But these are not minor differences in mental or moral capacity. We do not deny the rights of a person who might be a few IQ points short of the average. Nor do we deny the rights of a person who has performed some minor indiscretion under the laws governing property or interpersonal relations. Our system is—or should be—designed to care for people who are incapable of functioning in society, and to protect society from those who have proved themselves resolute predators on their fellow citizens. And even those who have been distinguished by bad behavior rather than by diminished capacity are still allowed to change their outlook and redeem themselves.
So our society does, in these cases, make distinctions based on equality of intellectual and moral character, but only in the grossest and most obvious sense. We condemn only those falling in the lowest part of the normal spectrum of human development and achievement. Then our intent is only for the protection of the individual and society. And we are still, in these cases, only talking about equality before the law.
In even the most extreme cases, equality of personal essence, of character, or of soul still lies outside of human judgment, in the realm of whatever god or gods there may be.
1. About the only time we can reasonably call for and expect personal equality is in sporting contests. For example, we want two boxers or wrestlers to compete in the same weight class and have similar training and skills as established by previous performance. The same would apply—with obvious exceptions for the different positions played—to members of a baseball or football team. Certainly, if someone is going to bet on the outcome of a contest, he or she would expect a certain match in physical attributes and skills going into it.
2. The fact that Jefferson could believe his own words and at the same time hold black Africans enslaved, denying them liberty and their pursuit of happiness—and their lives, if he so chose—reflects a popular conceit of the 18th century. To the “civilized” white European, the “savage” black tribes of Africa were not entirely human, not fully members of the species H. sapiens. As such, they could not to be granted equal rights with the white race. This is a latent belief that science and an improved morality has long since demolished—at least among people of greater education and better moral character.
3. In the matter of trying to judge a whole group, I side with Sergeant Kilrain, the fictional character in the movie Gettysburg. In a conversation with his colonel, Kilrain says, “Any man who judges by the group is a pea wit.”
4. Or we used to. In the case of people with clearly defined mental illness, our old system of care through certification and commitment to a state-run hospital has been overridden by concerns about the ill person’s rights. Essentially, we have lost the ability to distinguish between a healthy person deserving of full rights and an incapacitated person who cannot function in society. Where once we took care of them in hospitals, we now leave them to family care or let them roam the streets in proud, defiant misery with access to only occasional and poorly funded services. Something has broken down in our society, and we need the moral courage to fix it.