Equality and Ooze
Jessie Allen, School of Law, University of Pittsburgh
Book the First. The RIGHTS of PERSONS. Chapter the Second. Of the Parliament
In this chapter, Blackstone explains (p. 142) that for the rest of Book I he intends to discuss “the rights and duties of persons, as they . . . stand in various relations to each other. ” Why start that discussion with an analysis of the British Parliament? Well, because, “The most universal public relation, by which men are connected together, is that of government, namely, as governor and governed, as magistrates and people.” Wow. This is one of those times when I realize that the author of the Commentaries looks at the same picture I’m staring at and sees something completely different. Blackstone surveys social relations and the “most universal” one he sees is governor/governed. In case the reader missed the hierarchical crux of the matter, he ellaborates: “Of magistrates also some are supreme, in whom the sovereign power of the state resides; others are subordinate.” This chapter will start erecting the gorgeous legal edifice of variable privilege and duty out of the crude — and equal — rights that belong to everyone “merely in a state of nature.”
Child of the American sixties that I am, I tend to think of “equal rights” as an ideal to be aspired to, not as the baseline muck from which we all struggle upward. And aspirational talk about equality is very much in the air these days. In his inaugural address, President Obama urged us “to carry forward that precious gift, that noble idea, passed on from generation to generation, the God given promise that all are equal . . . .” Of course, in one sense Blackstone is a precursor to this modern view, exactly because of that first chapter on absolute individual rights. It’s that part of the Commentaries you hear echoed when our new President declares that our rights, “come not from our laws, but from our maker.”
But reading Blackstone’s description of the sovereign legislature in this chapter, you feel his antagonism to any view of equal rights as ennobling. Rights may come from God, but then so do bugs. For Blackstone equal rights are basic to mankind as a kind of common, primitive origin. This is the equality of molecules, of micro-organisms, of mud — the primordial human ooze out of which law develops higher forms of social existence — like mammals from amoebae.
In Blackstone’s worldview, law promises not rights, but order — and not just order as a matter of keeping the peace. This is not your crude, gunslinging, tough-talking Nixonian, primetime “law and order.” For Blackstone, law’s order is articulation — crystalizing civilization out of the muck of human rights. Blackstone even rejects Locke’s view that citizens in a democracy retain the power to unseat a legislature, calling any such exercise of popular sovereignty a “devolution” that “reduces all the members to their original state of equality.” In Blackstone’s legal cosmology, and in Book I of his Commentaries, equality is where we start, not where we finish, and our legal system is meant not to keep us all equal but to allow us to differentiate.
Of course the view of equality as something we might fall back to, rather than struggle to attain, is not confined to an 18th century defense of constitutional monarchy. It remains very much alive, for instance, in today’s critiques of affirmative action. For that matter, the two senses of equality, high and low, are mirrored in the two normative slants we give the same term, “discrimination” as (1) a prejudicial judgment that fails to recognize individuality and (2) the discernment that registers and rewards individual differences.
Our understanding(s) of the meaning and role of equality will of course affect governmental structures (and be affected by those structures). Consider voting rights. Blackstone notes approvingly (p. 166) that in the parliamentary democracy he is describing, “comparative wealth, or property” is reflected in the electoral scheme — “for though the richest man has only one vote at one place, yet if his property be at all diffused, he has probably a right to vote at more places than one, and therefore has many representatives.” In contrast to the contemporary American mantra of “one person, one vote,” for Blackstone it’s natural that your voting rights expand with your property holdings. He wants voting laws to reflect and amplify individual differences; we want voting laws to level them. In Blackstone’s England voting in two jurisdictions is a way of reflecting a highly developed social order, in the U.S. today it’s voter fraud.
And consider Blackstone’s explanation (p. 165) for why people with no property can’t vote: these individuals are “in so mean a situation that they are esteemed to have no will of their own.” If poor men had votes “they would be tempted to dispose of them under some undue influence or other.” From our equality perspective today, this looks obviously trumped up. Why are poor people any more likely to sell their votes than middle class, or even rich landowners? Doesn’t everyone want something? Doesn’t every man have his price? And even if it were true that someone with very little is more vulnerable to influence, the solution is not to disenfranchise anyone who doesn’t own real estate but rather to use that fine governmental and legal structure to protect their voting independence, e.g., with rules that create secret ballots and criminal penalties for trying to buy votes.
But here is where I begin to get that queasy feeling that maybe I don’t see things so differently from Blackstone after all. Just the other day my 8-year-old daughter was trying to enlist me in her campaign for children’s voting rights. Of course I was being all parentally supportive and proud of her initiative, but I was also offering counterarguments. I pointed out that since kids don’t live independently, they could be influenced by their parents or might even agree to vote the way their parents want them to in exchange for, say, a new video game. Uh-oh . . . now I sound like Blackstone and the poor folks! And the answer is the same, isn’t it? Just because kids aren’t financially (or emotionally) independent doesn’t necessarily mean they can’t be politically independent. It just means you’ve got to create the legal structures that will generate and support that independence. Of course my immediate thought here is to protest that no, no, there’s a real difference — because we’d never want to build such structures for kids — think how disruptive they would be to family life as we know it. But, curses! That would probably be just how Blackstone would feel about the idea of creating a voting structure that messed with the dependent social relations built around the English class system. So much for my smug 21st century moral superiority and my highfalutin conception of equal rights. Somewhere in the back of my highly differentiated but totally equal 21st century brain, I think I hear Blackstone laughing.