Equality, justice, and freedom: a constitutional perspective.

• Author: Dorn, James A.
• Position: Report

The publication of Thomas Piketty's best-selling book Capital in the Twenty-First Century (2014) has raised awareness of the rising inequality of income and wealth. The author argues that such inequality threatens democratic values and should be reversed by imposing steeply progressive income and wealth taxes on the rich and near-rich. His policies, if implemented, would create more equal outcomes but undermine the principles of freedom and justice that are the essence of the U.S. Constitution.

The notion of equality is central to any discussion of the legitimacy of markets and government. This article investigates alternative meanings of equality, especially as the term applies to economic and political equality, derives the implications of each for the legitimacy of markets and government, and considers the role of the state in the maintenance of a free society. It will be seen that the legitimacy of the U.S. system of government is based on limiting the power of government to the protection of persons and property.

The roots of legitimacy for America's constitutional republic and for capitalism can be traced to what Corwin (1955) called "the 'higher law' background" of the Constitution. In the Framers' Constitution, majority preferences are bounded by constitutional principles--that is, higher-law principles or what Sir Edward Coke referred to as "common right and reason" (Corwin 1955: 44). The constitutional perspective sees natural rights to life, liberty, and property as being self-evident and prior to the institution of government. (1) In a rights-based approach to constitutional legitimacy, liberty trumps democracy. That view is in sharp contrast to Piketty's contention that "capitalism and markets should be the slave of democracy" (quoted in Schuessler 2014).

The constitutional perspective on equality--namely, equal rights and freedom under a rule of law--has been eroded as the redistributive state has grown. Equality has come to mean equal outcomes and "equal opportunity," in the sense of equal starting positions, rather than equal rights under a just rule of law. The trend toward what Anderson and Hill (1980) have called the "transfer society" has been encouraged by a complacent judiciary that has split the constitutional rights fabric in half, creating an artificial distinction between economic and noneconomic rights, with only the latter being afforded the status of fundamental rights (Dorn 1986). As Mayer (2011: 8) notes, "It is the creation of this double standard, under which economic liberty and property rights are devalued compared with more favored liberty rights, that improper judicial activism ... can truly be found."

The loss of the constitutional perspective has given rise to what James M. Buchanan (1977: 296) has called "constitutional anarchy." More than a century earlier, Frederic Bastiat ([1850] 1964: 238-39) warned:

If you make of the law the palladium of the freedom and the property rights of all citizens, and if it is nothing but the organization of their individual rights to legitimate self-defense, you will establish on a just foundation a rational, simple, economical government, understood by all, loved by all, useful to all, supported by all, entrusted with a perfectly definite and very limited responsibility, and endowed with an unshakable solidarity. If, on the contrary, you make of the law an instrument of plunder for the benefit of particular individuals or classes, first everyone will try to make the law; then everyone will try to make it for his own profit. There will be tumult at the door of the legislative chamber; there will be an implacable struggle within it, intellectual confusion, the end of all morality, violence among the proponents of special interests, fierce electoral struggles, accusations, recriminations, jealousies, and inextinguishable hatreds; ... government will be held responsible for everyone's existence and will bend under the weight of such a responsibility. Those conflicting views of law and justice have as much relevance today as they did in Bastiat's time. Understanding their ramifications is essential for the maintenance of a free society.

In the modern redistributive state, equality of rights has been crowded out by equality of outcome; equal opportunity has been turned on its head; and limited government has given way to legislative activism. Cronyism and rent seeking have become the dominant features of democratic states as special interests seek to use the power of government for their own benefit. Consequently, the constitutional perspective--with its emphasis on ordered liberty, equal rights, and a just rule of law--has been seriously eroded. (2) Accordingly, the security of private property and freedom of contract have been jeopardized with a consequent rise in the uncertainty surrounding rights to property, liberty, and contract.

Equality of Rights and the Constitution of Liberty

From a constitutional perspective, equality means first and foremost the equality of rights under a just rule of law, with the basic right of every individual being the right to noninterference (Pilon 1979b, 1979c, 1981, 1983). That fundamental right stands at the center of what F. A. Hayek (1960) called the "constitution of liberty."

The basic principles inherent in the natural rights doctrine were stated in the Declaration of Independence and were used to justify the American Revolution. Their content is well-known: "All men are created equal ... with certain unalienable Rights"; "to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed"; and "whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it." The Constitution stands on those higher-law principles and is best viewed as a charter for limited government and individual freedom, not a blueprint for majority rule (see, e.g., Barnett 2004, Neily 2013).

The higher-law standing behind the written Constitution is what Cicero called "true law"--namely, "right reason, harmonious with nature, diffused among all, constant, eternal; a law which calls to duty by its commands and restrains from evil by its prohibitions" (Corwin 1955:10). It encompasses the principles inherent in "the rule of law" regarded as "a meta-legal doctrine or a political ideal" (Hayek 1960: 206). Chief among those principles are the supremacy of private or common law, equality of the law, and priority of individual rights (Dicey [1915] 1982: 120-21). Those principles form a common web because equality, justice, and freedom are all central to the higher-law background of the Framers' Constitution.

At the heart of the English common or private law, and implicit in the U.S. Constitution, is what Hume ([1739-40] 1978: 526) called the "three fundamental laws of nature--that of the stability of possession, of its transference by consent, and of the performance of promises." Adam Smith ([1759] 1976: 163) referred to them as the "laws of justice," and F. A. Hayek (1982, vol. 2: 40) termed them the "rules of just conduct." Equality under the law requires equal treatment or due process and, at a more fundamental level, equal rights. Thus, the rule of law places substance above process.

James Madison, the chief architect of the Constitution and Bill of Rights, accepted John Locke's natural rights' position that "the State of Nature has a Law of Nature to govern it, which obliges every one. And Reason, which is that Law, teaches all Mankind ... that being all equal and independent, no one ought to harm another in his Life, Health, Liberty, or Possessions" (Locke 1965: 311). He also accepted Locke's dictum that "The great and chief end ... of Mens uniting into Commonwealths, and putting themselves under Government, is the Preservation of their Property," by which Locke meant their "Lives, Liberties, and Estates" (p. 395).

Madison, following in the Lockean natural rights tradition, placed property and equality of rights at the core of his constitutional system, a system in which both economic and noneconomic liberties were to be afforded equal protection under the law of the Constitution and enforced by a vigilant judiciary. (3) As Madison (1865: 51) wrote:

It is sufficiently obvious, that persons and property are the two great subjects on which Governments are to act; and that the rights of persons, and the rights of property, are the objects, for the protection of which Government was instituted. These rights cannot well be separated. The personal right to acquire property, which is a natural right, gives to property, when acquired, a right to protection, as a social right. In his famous essay "Property," which appeared in the National Gazette on March 29, 1793, Madison argued that "in its larger and juster meaning," property "embraces every thing to which a man may attach a value and have a right, and which leaves to every one else the like advantage." An individual thus has a property right in "his opinions and the free communication of them, ... in the safety and liberty of his person, ... [and] in the free use of his faculties and free choice of the objects on which to employ them." Justice requires that government safeguard "property of every sort." Consequently, Madison stated: "that alone is a just government, which impartially secures to every man, whatever is his own" (Hunt 1906: 101-2).

The idea that to be legitimate law must be impartially administered and protect property broadly conceived was self-evident to the Framers. Although those abstract principles were not fully realized in practice, they set a framework for future constitutional change, as evidenced by the Thirteenth and Fourteenth Amendments.

In establishing a constitutional republic, Madison's main concern was to limit the power of government and protect persons and property. Writing to Thomas Jefferson in 1788, Madison noted: "In our...