{"id":2855,"date":"2019-11-20T15:53:02","date_gmt":"2019-11-20T20:53:02","guid":{"rendered":"https:\/\/hedgehogsandfoxes.org\/?p=2855"},"modified":"2020-09-24T00:08:49","modified_gmt":"2020-09-24T04:08:49","slug":"equality-and-ooze","status":"publish","type":"post","link":"https:\/\/hedgehogsandfoxes.org\/index.php\/2019\/11\/20\/equality-and-ooze\/","title":{"rendered":"Equality and Ooze"},"content":{"rendered":"

Jessie Allen, School of Law, University of Pittsburgh<\/a><\/p>\n

Book the First. The RIGHTS of PERSONS. \u00a0Chapter the Second. \u00a0Of the Parliament<\/strong><\/em><\/a><\/p>\n

In\u00a0this chapter<\/a>, Blackstone explains (p. 142) that for the rest of Book I he intends to discuss \u201cthe rights and duties of persons, as they . . . stand in various relations to each other. \u201d Why start that discussion with an analysis of the British Parliament? \u00a0Well, because, \u201cThe most universal public relation, by which men are connected together, is that of government, namely, as governor and governed, as magistrates and people.\u201d \u00a0 Wow. \u00a0 This is one of those times when I realize that the author of the Commentaries looks at the same picture I\u2019m staring at and sees something completely different. \u00a0Blackstone surveys social relations and the \u201cmost universal\u201d one he sees is governor\/governed. \u00a0In case the reader missed the hierarchical crux of the matter, he ellaborates: \u201cOf magistrates also some are\u00a0supreme<\/em>, in whom the sovereign power of the state resides; others are\u00a0subordinate<\/em>.\u201d \u00a0This chapter will start erecting the gorgeous legal edifice of variable privilege and duty out of the crude \u2014 and equal \u2014 rights that belong to everyone \u201cmerely in a state of nature.\u201d<\/p>\n

Child of the American sixties that I am, I tend to think of \u201cequal rights\u201d 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. \u00a0In his\u00a0inaugural address<\/a>, President Obama urged us \u201cto carry forward that precious gift, that noble idea, passed on from generation to generation, the God given promise that all are equal . . . .\u201d \u00a0Of course, in one sense Blackstone is a precursor to this modern view, exactly because of that\u00a0first chapter on absolute individual rights<\/a>. \u00a0It\u2019s that part of the Commentaries you hear echoed when our new President declares that our rights, \u201ccome not from our laws, but from our maker.\u201d<\/p>\n

But reading Blackstone\u2019s description of the sovereign legislature in this chapter, you \u00a0feel his antagonism to any view of equal rights as ennobling. Rights may come from God, but then so do bugs. \u00a0For Blackstone equal rights are basic to mankind as a kind of common, primitive origin.\u00a0This is the equality of molecules, of micro-organisms, of mud \u2014 the primordial human ooze out of which law develops higher forms of social existence \u2014 like mammals from amoebae.<\/p>\n

In Blackstone\u2019s worldview, law promises not rights, but order \u2014 \u00a0and not just order as a matter of keeping the peace. \u00a0This is not your crude, gunslinging, tough-talking Nixonian, primetime \u201claw and order.\u201d For Blackstone, law\u2019s order is articulation \u2014 crystalizing civilization out of the muck of human rights. Blackstone even rejects Locke\u2019s view that citizens in a democracy retain the power to unseat a legislature, calling any such exercise of popular sovereignty a \u201cdevolution\u201d that \u201creduces all the members to their original state of equality.\u201d \u00a0In Blackstone\u2019s 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.<\/p>\n

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. \u00a0It remains very much alive, for instance, \u00a0in today\u2019s critiques of \u00a0affirmative action. \u00a0For that matter, the two senses of equality, high and low, are mirrored in the two normative slants we give the same term, \u201cdiscrimination\u201d as (1) a prejudicial judgment that fails to recognize individuality and (2) the discernment that registers and rewards individual differences.<\/p>\n

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. \u00a0Blackstone notes approvingly (p. 166) that in the parliamentary democracy he is describing, \u201ccomparative wealth, or property\u201d is reflected in the electoral scheme \u2014 \u201cfor 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.\u201d \u00a0In contrast to the contemporary American mantra of \u201cone person, one vote,\u201d for Blackstone it\u2019s natural that your voting rights expand with your property holdings. \u00a0He wants voting laws to reflect and amplify individual differences; we want voting laws to level them. In Blackstone\u2019s England voting in two jurisdictions is a way of reflecting a highly developed social order, in the U.S. today it\u2019s voter fraud.<\/p>\n

And consider Blackstone\u2019s explanation (p. 165) for why people with no property can\u2019t vote: these individuals are \u201cin so mean a situation that they are esteemed to have no will of their own.\u201d \u00a0If poor men had votes \u201cthey would be tempted to dispose of them under some undue influence or other.\u201d \u00a0From our equality perspective today, this looks obviously trumped up. \u00a0Why are poor people any more likely to sell their votes than middle class, or even rich landowners? \u00a0Doesn\u2019t everyone want something? \u00a0Doesn\u2019t every man have his price? \u00a0And even if it were true that someone with very little is more vulnerable to influence, the solution is not to disenfranchise anyone who doesn\u2019t 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.<\/p>\n

But here is where I begin to get that queasy feeling that maybe I don\u2019t see things so differently from Blackstone after all. \u00a0Just the other day my 8-year-old daughter was trying to enlist me in her campaign for children\u2019s voting rights. \u00a0Of course I was being all parentally supportive and proud of her initiative, but I was also offering counterarguments. \u00a0 I pointed out that since kids don\u2019t 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. \u00a0Uh-oh . . . now I sound like Blackstone and the poor folks! \u00a0 And the answer is the same, isn\u2019t it? \u00a0Just because kids aren\u2019t financially (or emotionally) independent doesn\u2019t necessarily mean they can\u2019t be politically independent. \u00a0It just means you\u2019ve got to create the legal structures that will generate and support that independence. \u00a0Of course my immediate thought here is to protest that no, no, there\u2019s a real difference \u2014 because we\u2019d never want to build such structures for kids \u2014 think how disruptive they would be to family life as we know it. \u00a0But, curses! \u00a0That 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. \u00a0 So much for my smug 21st century moral superiority and my highfalutin conception of equal rights. \u00a0Somewhere in the back of my highly differentiated but totally equal 21st century brain, I think I \u00a0hear Blackstone laughing.<\/p>\n\n

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Jessie Allen, School of Law, University of Pittsburgh Book the First. The RIGHTS of PERSONS. \u00a0Chapter the Second. \u00a0Of the Parliament In\u00a0this chapter, Blackstone explains (p. 142) that for the rest of Book I...<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[268,255,492],"tags":[132,200],"class_list":["post-2855","post","type-post","status-publish","format-standard","hentry","category-jurisprudence","category-law-and-philosophy","category-william-blackstone","tag-news","tag-william-blackstone"],"jetpack_featured_media_url":"","jetpack_shortlink":"https:\/\/wp.me\/pasVL2-K3","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/2855","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/comments?post=2855"}],"version-history":[{"count":2,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/2855\/revisions"}],"predecessor-version":[{"id":3012,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/2855\/revisions\/3012"}],"wp:attachment":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/media?parent=2855"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/categories?post=2855"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/tags?post=2855"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}