The Equality Conundrum
The Equality Conundrum
The distinction between choice and luck, he argues, is a matter not of fact but of perspective. Explanations of human behavior have traditionally been divided into two groups: those which focus on the forces that push us around and those which emphasize how, as individuals, we can choose to resist them. The same phenomenon can be viewed from either side of the so-called structure-agency distinction. For most of the twentieth century, Mounk writes, criminologists looked at crime from a structural perspective: they urged politicians to fight it by reducing poverty—its root cause. Later, however, they changed tack: they began examining the motivations of individual criminals and asking how potential wrongdoers, as “agents,” might be dissuaded from committing crimes. The criminologists weren’t repudiating their prior insights about poverty, Mounk says; they were just looking at crime from a different perspective. The agent-based perspective was more useful to police officers, who couldn’t lift a neighborhood out of poverty but could change the way they patrolled it.Mounk thinks that most people understand, intuitively, that the distinction between structure and agency is—like the distinction between “nature” and “nurture”—an artifact of explanation, not a part of reality. All explanations are limited, we know, and tell only part of the story. This, he writes, is why we are so ambivalent about luck egalitarianism and the politicians who see the world through its lens. Conservatives, hoping to constrain the size of the welfare state, overstate how much control people have over their lives; liberals, hoping to expand it, overstate our powerlessness. But both positions are unconvincing. “While voters are receptive to the idea that it is deeply unjust for some public schools to have better funding than others, they balk when they are told that students who do well in school are merely lucky,” Mounk writes. “And while they recognize that the explanation for the stagnating living standards of average people lies in larger structural transformations of the world economy, they are skeptical when they are told that the choices of specific individuals don’t play any role in determining their particular economic fate.”There’s a problem with finding problems with egalitarianism. The head fights the gut; complexities can’t drown out the moral law within. Reading Waldron, Anderson, Mounk, and other thinkers on egalitarianism, I found myself remembering a time that started when I was eleven or twelve years old. My parents were divorced and rarely spoke; I went to three middle schools in three years, one bad, one middling, one good. The bad school was near my mother’s house, where we lived in the basement, having rented out the main floor. The good school was in a wealthy suburb. I attended it by claiming to live at the address of a family friend who had a small apartment, above a commercial space, on its edge. (So-called enrollment fraud is common across the country, especially in places where rich and poor school districts border each other.)For a while, I took the bus home to the apartment, hanging out there until late in the evening. When this arrangement grew untenable, my mother devised a plan. She’d struck up a conversation with a cabdriver and taken his card; she called him and asked if, for a flat monthly fee, he’d pick me up at school each day and drop me at my father’s house, a short drive away. There weren’t many fares at two-thirty in the afternoon in the Maryland suburbs, and he said yes.Peter, the cabdriver, began picking me up from a hidden spot past the soccer fields, under some trees. He was from West Africa, with an accent I sometimes struggled with. We talked about his home town, his girlfriend, the books I was reading—Stephen King, for the most part—in which he sweetly expressed an interest. Eventually, two of my friends, who were also picked up after school, discovered my secret spot and joined me there. As Peter and I drove away, everyone waved.One day, Peter was agitated when he arrived. “I have to make a detour, O.K.?” he said. “Don’t tell your mom.” He didn’t wave to my friends, and we took a left instead of a right, eventually entering a neighborhood of small, unkempt row houses. As we drove, Peter told me how the taxi business worked. He didn’t own his cab; he rented it from the cab company, in a rent-to-own arrangement. If he missed his monthly payment, the company took the cab back. The payment was extremely high. “I drive and I drive and I drive,” he said. “But I can’t make it. I can’t make it!” As we pulled up in front of his cousin’s house, he sobbed. I watched from the back seat as he returned to the cab, weeping, with borrowed cash in his hand.“Some are born to meet, some achieve meetings, and some have meetings thrust upon them.”Cartoon by Avi SteinbergI wasn’t a sheltered kid; I knew about economic hardship. A few times that year, my mother had fallen behind on our bills, and our power had been cut off; we’d showered and eaten dinner in the dark. She’d hidden her despair, but Peter had shared his. For him, the bottom could fall out faster and more completely. More than a decade later, in a Dickensian coincidence, Peter, who was still driving cabs, picked my father up from the airport and gave him a business card. Peter started driving him, too; that year, on a trip with my dad and his family, Peter and I were reunited, to our great delight. But not long afterward he died. He suffered from diabetes and hypertension, and had no health insurance; he went too long before seeking treatment for an infection in his toe. It got into his bloodstream, and he died of septic shock.Injustice isn’t cerebral. Peter and I were two equal people on the same earth. What’s so complicated about that?The gap between intuition and argument—between outrage and the best response to that outrage—is the subject of Robert Tsai’s “Practical Equality: Forging Justice in a Divided Nation.” Tsai, a law professor at American University, places great weight on the intuition that we are “one another’s equals”—and yet, he writes, it’s inevitable that, “in a diverse democracy, people will disagree about what equality means.” Hashing out questions of equality, he concludes, can be so fraught, so confusing, that the wisest course is sometimes to circumvent them. Inequality can be resisted, and equality pursued, by other, less tangled means.Tsai, a constitutional litigator, is intimately familiar with how arguments about equality have unfolded in the courts. Often, he writes, the moral magnetism of equality backfires. To crusade for it is to be on the side of justice, and so there is no choice but to accuse those obstructing it of being racists, misogynists, élitists, or oppressors. Tsai tells the story of City of Cleburne, Texas v. Cleburne Living Center, Inc., a Supreme Court case from 1985. A private company proposed opening a group home for thirteen intellectually disabled residents in the small city of Cleburne; it was thwarted by a local ordinance that required a permit for the opening of facilities for the “feeble-minded.” City officials opposed to the home cited a variety of concerns: the preservation of the neighborhood’s “serenity,” the danger to nearby elderly people, the possibility that bullies from a nearby junior high school would torment their new neighbors. Advocates for it pointed out that the ordinance’s origins lay in the country’s eugenicist past. (In 1927, a Supreme Court decision permitted the sterilization of the intellectually disabled “for the protection and health of the state.”)When the case reached the Supreme Court, the arguments against the ordinance were mostly framed in terms of equality. Some people likened it to an apartheid law: it was no different, they argued, from a rule barring the construction of hospitals for people of a particular religion or ethnicity. The Reagan Administration, defending the law, argued that, since the disabled did have “distinctive needs and abilities,” treating them differently need not reflect “invidious and derogatory aims.” The table was set for an intractable egalitarian debate. A morally charged yet abstract question had been raised about the place of intellectual disabilities within a society committed to equality; the answer would concretely affect millions of disabled people. And that discussion, in turn, had been connected to the accusation that those who objected to the home were closed-minded bigots—a charge sure to rally many of their fellow-citizens to their defense. The likelihood of the Court coming to a universally convincing conclusion seemed remote.In the end, Tsai writes, the Justices decided to avoid thinking in terms of equality. Instead, they applied the “rule of reason,” asking whether the citizens’ concerns had any rational basis, and concluding that they did not. By taking this approach, the Court avoided entirely the question of whether the citizens who objected to the home were motivated by bigotry; it also skirted the Waldronesque question of what it might mean to treat intellectually disabled people equally. And yet, Tsai writes, the Court still created a basically egalitarian outcome, and “placed discriminatory action based on damaging cultural stereotypes off-limits.”The Court used the same approach in other equality-enhancing decisions. In United States v. Virginia, from 1996, a female high-school student filed a complaint against the Virginia Military Institute (the so-called West Point of the South), which excluded women. The arguments on her behalf, which leaned heavily on equality, soon got bogged down in the question of what it might mean for the Institute to treat male and female cadets equally. Instead of weighing in on that issue, the Court ruled that there was no rational basis for denying women admission.These cases and many others, Tsai believes, show that it’s often more practical to pursue “equality by other means” than to sail into the crosscurrents of egalitarian debate. Reasonableness, or rationality, is one test to which we can subject inegalitarian systems or rules. One can also ask whether they are fair, whether their specific consequences are cruel, whether all relevant voices have been heard. Answering these questions isn’t always easy, but it’s easier than generating consensus about what “equal” means. We make more progress, Tsai argues, when we “shift the focus of moral outrage.”Language itself may be misleading us. Appalled by inequality, our minds turn immediately to its opposite. Sidestepping that impulse, as Tsai advocates, requires giving up a satisfying rhetorical clarity, but it may bring us closer to our moral common sense. The philosopher David Schmidtz explains why in a 2006 book titled “Elements of Justice.” Schmidtz begins by asking us to contemplate what makes a neighborhood a good place to live: a thriving community might have a grocery store, a fire station, a library, a playground. Similarly, a system of justice must have a few different structures to be livable. It’s easy to imagine justice as a unitary thing—a single, imposing building, a Supreme Court. But it’s more like a collection of buildings, each with its own function.In the neighborhood of justice, Schmidtz identifies four structures: equality, desert, reciprocity, and need. We consult these in different contexts, to solve different kinds of problems. Citizens are owed equality before the law. Workers, by contrast, should be compensated differently, depending on what they have accomplished. In relationships with our partners, we favor reciprocity. In trying to do right by our children, we ask what they need. (Michael and Angela, in considering their will, might focus on necessity more than the other concepts: instead of asking “What do they deserve?” or “What have they done for us lately?,” they might ask, “What do our kids need?”) None of these principles are capacious enough to serve in every situation; in fact, they are often in tension with one another. And they can be used inappropriately. No one wants a merit-based marriage. A workplace that operates by reciprocity is a dysfunctional one.In real life, therefore, we amble around the neighborhood of justice. A coach doesn’t run her team on egalitarian principles alone; to win, she must field the best players more often. But she doesn’t run a ruthless meritocracy, either. On a good team, players get the help they need, they assist one another reciprocally, they’re rewarded for their individual accomplishments, and they are treated similarly enough that they feel connected in a common enterprise.The frustrations and complexities of egalitarianism reflect the hidden complexity of equality. It looks simple and self-evident, as though one could proclaim it into existence. But achieving it requires a willingness to recognize, and to shift among, many different conceptions of what’s right—a kind of moral egalitarianism. Even equality itself, as an ideal, is insufficient. No one version of the good can rule the rest. ♦