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June 14, 2005

blast from the past (four)

Don Herzog: June 14, 2005

Yup, I've been rummaging around in the archives again.  Here are some desultory thoughts on an old account of politics and freedom:

  1. Every person has the right to govern himself, to fix his own goals, and to make his own way with a minimum of governmental interference.
  2. It is for government to foster and maintain an environment of freedom encouraging every individual to develop to the fullest his God-given powers of mind, heart and body; and, beyond this, government should undertake only needful things, rightly of public concern, which the citizen cannot himself accomplish.
  3. Within our Republic the Federal Government should act only in areas where it has Constitutional authority to act, and then only in respect to proven needs where individuals and local or state governments will not or cannot adequately perform.  Great power, whether governmental or private, political or economic, must be so checked, balanced and restrained and, where necessary, so dispersed as to prevent it from becoming a threat to freedom any place in the land.
  4. It is a high mission of government to help assure equal opportunity for all, affording every citizen an equal chance at the starting line but never determining who is to win or lose.  But government must also reflect the nation's compassionate concern for those who are unable, through no fault of their own, to provide adequately for themselves.
  5. Government must be restrained in its demands upon and its use of the resources of the people, remembering that it is not the creator but the steward of the wealth it uses; that its goals must ever discipline its means; and that service to all the people, never to selfish or partisan ends, must be the abiding purpose of men entrusted with public power.

I like the libertarian sound of 1, but it isn't all that informative.  Everything will hang on what counts as "interference."  And you can see instantly, from 2, that the authors aren't night-watchman-state types.  Indeed you might like a crisper account of what "an environment of freedom" is, and just how a government should "foster and maintain" it.  I shrink from repellent fantasies of state-sponsored propaganda (the neighborhood bullhorns bark out, "Arise, free citizens, and salute dawn's early light in whatever way you choose!").  But the authors of this document were perfectly sane, so I've no interest in lampooning their open-ended language.  And they believe in a common good, or "needful things ... of public concern," and don't believe that individuals acting privately can solve all problems.

3 has a crucial idea, one sadly missing in some of today's political debate.  "Great power, whether governmental or private, political or economic":  it's a mistake, the authors think, to think that power is foreign to the private realm or to economics.  So the now familiar mapping — state=coercion, economy=voluntary — is a mistake, too.  Try this:  your action isn't free, isn't voluntary, if you had no reasonable alternatives.  Then, as we'd say, you do what you have to do.  What follows?

A law requiring you to do (or not do) something under threat of criminal punishment deprives you of freedom.  But private actors make threats, too.  "You have to work overtime or you're fired" is an exercise of power if you don't have a reasonable alternative to your job.  (Your employer is not the least bit mistaken or unidiomatic when he says, "You have to.")  That your employer has a right to do that, absent any statutory limits — though it always surprises my students, at-will employment remains the dominant background norm of American law — is neither here nor there.  Before you say that someone can always get another job, remember abandoned company towns like Flint.  Or ask yourself whether state laws don't matter because you can always move to another state, or federal laws don't matter because you can always move to another country.

We don't even need an individual making an explicit threat to see how action can be unfree.  If the only housing you can afford is in a crime-ridden neighborhood, or by a badly polluted landfill site, then you have to live there.  So it may be — they don't say — that the authors' abstract language about "an environment of freedom" would license or require government action to give people more reasonable alternatives.

"But then the state is redistributing property, rights, and more!"  If that means that the state is changing the status quo, you bet.  In that sense, classical liberals' quest for equality under the law was redistributive, too.  No more special church courts for priests and ministers to slip away; no more legal privileges guaranteeing that aristocrats couldn't be charged with trespass and the like.  Charges of redistribution have bite when they mean the state is doing something wrong.  If you have a theory of property rights up your sleeve on which, say, it's wrong for the state to fund social welfare and supply minimal but decent public housing, both at taxpayer expense, I'd like to see that theory.  I've read a whole lot of property theory and I've yet to see an even vaguely plausible case that property rights extend so far.

Hobbes, Bentham, and other canonical writers sometimes write as if more law equals less freedom.  That's clearly wrong.  Some laws do nothing but offer new options.  Take the laws on how to write a will, which give you the magical ability to dispose of your property after your death.  And even laws with a canonical "thou shalt not" form can open up new options by closing off others.  Take right-hand drive, which enables you to zip along in your steel-and-glass death machine at alarmingly high speeds within inches of other drivers.  If we were free to drive wherever and however we wanted, no one could drive at all.  So too, laws against assault and the like help enable us safely to walk past strangers.  If you don't think that's amazing, I've got some travel destinations for you.

Because of the passive voice, 3 doesn't tell us whose job it is to check, balance, restrain, and where necessary disperse concentrated power.  Despite the commendable emphasis on what Europeans call subsidiarity, assigning political power to the lowest levels that can plausibly handle tasks, I think the unnamed actor has to be the federal government.  And then we have a familiar and formidable political problem, how to tame a federal government strong enough to manage other powerful social actors.

4 of course warms my heart, because I have here defended equality of opportunity and interpreted that as equality of starting points, while disavowing any interest in equality of outcomes.  And I suppose the call for government to supply a floor beneath which no helpless citizen may fall would warm my co-blogger Elizabeth Anderson's heart, too, even if she, like I, would insist that this is a demand of justice and freedom, not just of compassion or charity.

And 5 is dead right, too.  The authors think the government has important responsibilities in setting up the ground rules.  But they know that it is not properly the government's job to solve all problems
— and that free citizens have to balefully watch the government, eternal vigilance being the price of freedom.

Oh, yeah, I didn't identify the document.  Sorry.  It's the 1964 Republican Party platform.  Right, the one Barry Goldwater ran on.  So these days, at least, politics has a reverse Doppler shift:  as that platform recedes, it looks bluer and bluer.  No wonder that we bloggers have been critically assailed by our faithful commenters for defending its core commitments.  I wonder what today's GOP leaders think about these matters.  I wonder what party loyalists do.  I never dreamed there was so much space to Goldwater's right.

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Comments

Posted by: Steve Horwitz

Interesting and not that surprising really, when you think about it. If you read the whole document, the near-absence of the moral/social concerns that seem to dominate the GOP today is striking. The 1964 document is at once both more libertarian, on social issues, and less so on economic ones (if you hit Don's link, you'll see support for the expansion of Social Security and for more medical care for the elderly). The 2005 GOP has indeed flipped the playbook - more, at least nominally, free enterprise, and more moralistic at the same time.

Interesting to speculate what would happen to a presidential candidate today who ran on that platform (minus all the anti-communist stuff). I suspect he or she would do quite well. Too bad neither major party seems interested, nor that any sane candidate could survive the extremes demanded by the primary process.

Posted by: Steve Horwitz | Jun 14, 2005 8:08:34 AM


Posted by: RedWolf

It's either elbow room to the right of Goldwater or another dimension, the axis from oligarchy to people's rule, that has since been fixed on oligarchy.

Posted by: RedWolf | Jun 14, 2005 9:21:13 AM


Posted by: LPFabulous

I don't think the platform looks blue; I think it looks reasonable. The American left is no more likely to cherish separation and dispersal of power than the right (see the recent Raich decision and the celebrating at places like The New Republic and the Michigan Daily) - it just so happens that the Democratic Party look like the defenders of freedom because they're the ones battling the agenda of the guys in charge.

I guess the right has its major "victories" legislatively (the PATRIOT Act, Terri Schiavo, the bankruptcy bill, tax cuts) and the left has its judicially (Raich, Lawrence, Roe, Goodridge). But let's be clear when we say that neither side gives a hoot for numbers 3 and 5.

Posted by: LPFabulous | Jun 14, 2005 10:42:36 AM


Posted by: Thomas

I'm not surprised by the limited mentions of moral concerns in the 1964 platform. (There are some mentions--and mentions that are very red, not blue: "enactment of legislation, despite Democratic opposition, to curb the flow through the mails of obscene materials..." and "support of a Constitutional amendment permitting those individuals and groups who choose to do so to exercise their religion freely in public places...", and so on.)

What's changed since then? Well the other party (and the judiciary) have inserted moral issues into the political debate. The reason that there aren't mentions of gay marriage, abortion, etc., is because there was a consensus on those issues. It wasn't the Republicans who rejected that consensus.

Posted by: Thomas | Jun 14, 2005 11:36:08 AM


Posted by: BigMacAttack

I think a good deal of context is missing.

But even in this contextless state how far to the right are folks who want to abolish SS or to replace SS with private accounts. Loony right or raving right?

And how well does SS fit with the above principles that you find so agreeable?

Not very. A bit of second half of 4 at the expense of 1,2,3 and 5 and even abolishing SS doesn't necessarily mean that the second half of 4 has to then be ignored.

So what is equally amazing is that those to the left of Goldwater are still raving lunatics.

Posted by: BigMacAttack | Jun 14, 2005 12:50:06 PM


Posted by: Bret

Who can argue with such general and broad concepts? As always, the devil's in the details.

Posted by: Bret | Jun 14, 2005 1:00:36 PM


Posted by: Don Herzog

BigMacAttack, the announcement that anyone to the left of Goldwater is a raving lunatic is flatly unhelpful. If you believe that, I suspect this blog is not for you. Don't worry, this particular lunatic is safely ensconced in a university and doesn't seem physically violent.

Bret, missing a golden opportunity to point out that I am no longer a milquetoast moderate but am a Goldwater Republican, asks instead:

Who can argue with such general and broad concepts?

If Bret goes and rereads my posts on equality of opportunity, he will find his fellow commenters vigorously contesting equality of starting points, even on the minimal construction of it I offer as really meaning there has to be a reasonable floor. I could check whether Bret himself staked out a view in those threads, but, um....

Posted by: Don Herzog | Jun 14, 2005 2:18:21 PM


Posted by: D.A. Ridgely

Speaking of lunacy, here's the 1964 acceptance speech given by the man about whom his Democratic opponents said "In his guts, you know he's nuts" and ran a campaign ad suggesting he would start a nuclear war.

Posted by: D.A. Ridgely | Jun 14, 2005 3:06:11 PM


Posted by: Sean

And now you know the rest of the story.

Posted by: Sean | Jun 14, 2005 3:12:04 PM


Posted by: BigMacAttack

Maybe you shouldn't have comments or do a better job reading them?

'Oh, yeah, I didn't identify the document. Sorry. It's the 1964 Republican Party platform. Right, the one Barry Goldwater ran on. So these days, at least, politics has a reverse Doppler shift: as that platform recedes, it looks bluer and bluer'

'I wonder what today's GOP leaders think about these matters. I wonder what party loyalists do. I never dreamed there was so much space to Goldwater's right.'

You paint modern Republicans as to the right and rapidly moving further to the right of Goldwater via a context less presentation of the 1964 Republican Platform.

That just isn't the case. Not in practice and not in theory. Goldwater was as close to a libertarian as you can come in modern US politics. Today's GOP is well to the left of Goldwater in theory, Civil Rights, and in practice, 4+% discretionary growth rate increase.

'No wonder that we bloggers have been critically assailed by our faithful commenters for defending its core commitments.'

And how well does SS fit with the above principles that you find so agreeable?

Not very. A bit of second half of 4 at the expense of 1,2,3 and 5 and even abolishing SS doesn't necessarily mean that the second half of 4 has to then be ignored.

Maybe your commentators just understand that the positions you hold conflict with those core commitments.

You are claiming that the today's GOP which is to the left of Goldwater is to his right and rapidly moving away. Maybe that was just polemics on your part.

You don't call anyone raving or a lunatic.

But plenty of people do and that was my point. Lots of people still consider, even folks to the left of Goldwater and his agreeable platform, as raving right wing lunatics.

Just not your best post. An untrue hey look today's right is even further to the right than Goldwater just isn't up to your standards.

This is a great site but I think that in general explaining the jump from core commitments to policies is over due. (Elizabeth)

I agree, I agree, I agree I concede positive rights and equality of opportunity and I really don't know anyone who doesn't. I share your core commitments.

Now why do we still disagree about the policies?


Posted by: BigMacAttack | Jun 14, 2005 3:33:09 PM


Posted by: Don Herzog

Sorry if I misread yours, BMA. I just didn't realize that when you wrote this:

So what is equally amazing is that those to the left of Goldwater are still raving lunatics.

you were scornfully referring to third parties who would count today's GOPsters, whom you see as to the left of Goldwater, as lunatics.

Me, I don't traffic in lunacy charges. And despite our official blog title, I'm not all that high on the left/right scheme. Then too I have to again beg off on saying anything about Social Security -- there are people here who know much more about it than I do, and as I've said before I don't think the fact that I'm blogging means I should spout off on anything and everything.

Anyway, my post is framed by part of Goldwater's platform, and has a teasing afterthought about the political Doppler effect. But its heart is a story about how you can think about power and coercion, or the lack of freedom, in market or private settings. I do though want to emphasize that Goldwater was foursquare behind equality of opportunity and a social safety net. On the former, when you write,

I agree, I agree, I agree I concede positive rights and equality of opportunity and I really don't know anyone who doesn't.

I don't like the negative/positive rights distinction, but let that go. If you want to meet people who don't like equality of opportunity, read the comments on the three posts I offered on that topic some months ago. I did want to say to those people, look, Goldwater's with me on this one, not with you. No, not because Goldwater is an authority of any sort, but to register: something important has changed here.

Posted by: Don Herzog | Jun 14, 2005 4:23:38 PM


Posted by: Glen Raphael

"If we were free to drive wherever and however we wanted, no one could drive at all."

I find it exceedingly unlikely that a side-of-the-road consensus and a right-of-way consensus wouldn't emerge in the absence of government mandate. It might not work quite as well, but that's different from saying it wouldn't work at all.

Even with all the regulations we have, a fair amount of traffic behaviour is still governed by customary law rather than legislative law. For instance, what's the real speed limit on your nearest freeway? The limit above which you'll get a ticket and the judge won't laugh it out of court? It's not what's posted on the signs, that's for sure!

Posted by: Glen Raphael | Jun 14, 2005 5:09:53 PM


Posted by: Don Herzog

Glen is of course right that social convention might well solve the driving problem. But that doesn't begin to undercut the claim of mine he quotes. It just goes to show that social conventions, like laws, can rule certain options off the table. So thanks! that's further grist to my mill: private and public action alike can limit or expand our freedom, and one way to expand our freedom is to rule some options off the table.

Posted by: Don Herzog | Jun 14, 2005 5:15:37 PM


Posted by: BigMacAttack

The results from your first post on equality of opportunity

JCL - Already exists.

SamCherve - Mostly exists for more do this.

DA Ridgely - Kids yes Adults no. (not sure how he can pull that off)

Steve - Yes.

Mark Draughn - Yes

Jeff Licquia - qualified yes but I am not quite sure

Dallas - critical but does not commit. I am counting it as a no.

Bernard - sounds like no but is really debating a straw man and not your floor. Put it in the no column.

Sad Truth - No. (But seemed insane)

Rob Perelli-Minetti - Maybe.

Bruce Allardice - No

hr - exists

Mike Enright - cannot be done

MPowell - cannot be done

rtr - no

and that is just from the folks who seemed like they might be conservative.

Based on that non scientific sampling I think a better approach might be to focus on establishing that it does not exist and that something can be done about that lack instead of focusing on the abstract case for Equality of Opportunity.

But I certainly hope you convince the folks who think it shouldn't exist to change their minds.

Posted by: BigMacAttack | Jun 14, 2005 6:02:09 PM


Posted by: Bret

Don Herzog wrote: "If Bret goes and rereads my posts on equality of opportunity, he will find his fellow commenters vigorously contesting equality of starting points ..."

Yeah, well, sort of. BigMacAttack was so kind as to do a survey of one of Don's earlier posts on the topic, and I'm willing to the trust the survey results which do indicate that equality of starting points was somehow contested by a few (though the level of vigor is still in doubt). However, keep in mind that arguing against a particular implementation of a principle is different than arguing against the principle itself.

I personally have nothing against the principle of equality of starting points. But clearly it's possible that some implementations that attempted to achieve such an end would not be worth the cost. I'm all ears for an implementation that makes sense. And please provide some details. Just saying there should be a "minimum floor" is not sufficiently detailed. What is the minimum floor? How does one qualify for it? Where does the money come from? How does that affect tax rates? How does that affect productivity? Employment? Distribution of political power? Birth rates? Will the existence of a minimum floor produce an underclass? Etc. Perhaps a good post would be to pick one of the liberal think tank's proposed implementations and then we could discuss it.

The principles always sound great. That's not where the devil lives. She doesn't live in the principles - she lives in the details.

This is the view I staked out in previous threads on the subject. For example, I wrote:

The focus on starting points just doesn't sound particularly pragmatic to me. Sounds nice. Sounds moral. Sounds idealistic. But, to me, it doesn't sound pragmatic.
I'll stand by that.

Posted by: Bret | Jun 14, 2005 7:10:06 PM


Posted by: Don Herzog

Bret, you'll forgive me for saying that "it doesn't sound pragmatic" sounded like a rejection of the ideal itself as utopian fantasy, not as a reminder that we need to hear more about implementation.

You know, I'm kind of stuck. I'm a political theorist. I'm also a pragmatist, and I believe very firmly that the nitty-gritty contingencies matter tons. But I also think they require very serious immersion in the facts, and in these areas I have nothing to offer. Still:

In this post, I defended antidiscrimination laws. If you're looking for further disagreement at the level of ideal, both Mona and Mr. Ridgely believe that these laws are unjustifiable. (I'm not sure about Steve Horwitz, or some others.) They think a private employer's property rights extend to letting him choose not to hire anyone, for whatever reason he likes, including that they're black or female or gay or whatever else. I understand the principle, but again I've never seen an even vaguely satisfactory case for such robust property rights.)

In this post, I criticized the common practice of financing schools on the local tax base. That is not just a reminder of what's salutary in the current legal regime; it's a demand for change.

So alas BMA has surveyed the wrong post, though even then s/he surfaced a fair amount of rejection of the principle of equality of opportunity itself. And somewhere on this blog -- perhaps he can pitch in and remind us? -- Larry said that nothing is easier than to reject equality of opportunity. I know you all have better things to do than read any of my posts, let alone old ones, but I just cruised the comments on both those posts, and there are plenty of people who aren't just worried about the implementation. They're also rejecting the ideal.

In short, I'd much like to believe there is a broad and deep consensus for equality of opportunity, and a similar consensus that it requires equality of starting points. I see no such consensus on this blog, or in American society and politics. So I'll close with a polemical note. I will take the conservative assault on affirmative action as a violation of equality of opportunity much more seriously when I see a much more vigorous effort to clean up inner city schools. No, sorry, reciting the merits of vouchers isn't good enough, though as I've also said on this blog, I'm firmly in support of school choice.

In the meantime, conservative and libertarian readers happy to endorse equality of opportunity and equality of starting points, write your Congressmen today.

Posted by: Don Herzog | Jun 14, 2005 7:44:38 PM


Posted by: Larry

And somewhere on this blog -- perhaps he can pitch in and remind us? -- Larry said that nothing is easier than to reject equality of opportunity.

Sure, thanks for the invitation -- always glad to have another chance to knock that chimera, mirage, illusion, that vain and hubristic ambition, "equality of opportunity". It's one of those things that can sound good, on the basis of a completely misleading sport or game analogy, and this is why politicians of all stripes will often invoke it -- and I'm not surprised to find that includes Barry Goldwater. But it really assumes that politicians and their bureaucratic servant-masters are able to stand outside of human life and judge who should be pushed or held back in order to ensure this impossible equality -- a quasi-god-like role that no human being, however "disinterested", is able to play. It's never really taken all that seriously, of course, and thank the gods, or society would be a horrendous tyranny -- instead, it's on the one hand just used as a general feel-good aspiration, and on the other hand used to prop up one scheme or another for redistributing wealth from people to bureaucrats.

Posted by: Larry | Jun 14, 2005 8:57:26 PM


Posted by: Larry

Sorry, one quick addendum to the above: it's just important to point out that the good things that are done, often in the name of equality of opportunity -- such as providing a floor of income support, or public schooling -- really have no need for this name at all: income support, for example, is just that, a floor, and it applies at any stage of life not just at a "starting point"; and public schools are a public good, like roads and lighthouses.

Posted by: Larry | Jun 14, 2005 9:05:21 PM


Posted by: Don Herzog

Larry, I don't understand at all why equality of opportunity positions anyone as standing "outside of human life." Still less do I understand the thought that it's never taken seriously. It's been taken extremely seriously in the West for centuries, and has been the rallying cry for one crucial political/legal change after another. The career open to talents: the end of legal disabilities on Catholics and other religious groups, the end of aristocrats cashing in connections, the end of official nepotism, and so on. Universal public education. More recently, antidiscrimination law. And on and on.

Now you may think that the economist's vocabulary of public goods is somehow more hardheaded or realistic than talk of equality. I disagree very deeply. I think that economic categories -- public goods, externalities, you name it -- are routinely parasitic on offstage moral categories, and not any kind of independent replacement for them. Maybe I'll get around to writing a post explaining how that goes.

Thanks for weighing in on this exchange. And, to adopt a recent amusing gambit of Mr. Ridgely's: BMA, you said you didn't know anyone who rejects equality of opportunity. BMA, meet Larry. Larry, meet BMA.

Posted by: Don Herzog | Jun 14, 2005 9:11:49 PM


Posted by: Perseus

I don't see much blue in the 5 points listed. Points 1 & 2 strike me as traditional libertarian/limited government conservatism. Don Herzog rushes to the second sentence of point 3 without giving due consideration to the first sentence and its relation to the second sentence. Perhaps what is being suggested is that greater fidelity the idea of a Constitution with enumerated powers (which is anathema to most modern liberals) is the best way to prevent a concentration of great political and economic power? And due fidelity to that Constitution would not empower the federal government to assign political power to lower levels of government as if ours were a national rather than a "partly federal, and partly national" form of government (who needs dreary European "subsidiarity" when we've got federalism?). The mention of "equality of opportunity" in point 4 should be taken in the context of the 1960s when modern liberalism was waxing. It was (and is) a nice political slogan for countering liberal "Big Sister" programs (I presume that "equality of opportunity" is the justification for the unfortunate "No Child Left Behind" Act). Finally, the reminder in point 5 that government "is not the creator but the steward of the wealth it uses" is just another way of saying: "It's the people's money, not the government's money."

I also don't see any absence of moral/religious concerns in the platform. Here's the introduction to the 5 points:

"Much of today's moral decline and drift—much of the prevailing preoccupation with physical and material comforts of life—much of today's crass political appeals to the appetites of the citizenry—can be traced to a leadership grown demagogic and materialistic through indifference to national ideals rounded in devoutly held religious faith. The Republican Party seeks not to renounce this heritage of faith and high purpose; rather, we are determined to reaffirm and reapply it."

And didn't Goldwater allow that sanctimonious Straussian, Harry Jaffa, to put this famous line in his acceptance speech:

"I would remind you that extremism in the defense of liberty is no vice! And let me remind you also that moderation in the pursuit of justice is no virtue!"

Posted by: Perseus | Jun 14, 2005 9:21:12 PM


Posted by: Jadagul

As a fairly serious libertarian, can I weigh in on equality of opportunity? As far as I can tell, pretty much everyone accepts equality of opportunity--defined in a certain way. And many, many of us reject equality of opportunity--defined in a different way.

For instance, I believe that government should remove all arbitrary barriers it places that prevent people from realizing their opportunities. Thus as you say, Don, the move to end legally entrenched aristocracies and legal systems that actively discriminate against specific religions or ethnicities is an integral part of equality of opportunity. I could also make an argument that, say, government licensing of occupations (doctor, lawyer) is an affront to equality of opportunity, though it would be relatively weak.

To the extent that equality of opportunity means removing these artificial barriers, I'm all for it. I don't like caste systems. But you want to extend equality of opportunity to mean the provision of resources necessary to take advantage of certain opportunities (e.g. public schooling). That's a legitimate move to make, and it's reasonable to include that under the heading of "equality of opportunity." Sort of reminds me of a comment I heard once about the constitutional debates in 1789: the Federalists really stole a march on the Anti-Federalists by taking the name first, because either side could legitimately have called itself the Federalists.

Y'all have stolen a march by extending "equality of opportunity," which sounds good, to include "equality of access to the resources you need to take advantage of certain specified opportunities that we think are particularly important." I reject that equality of access for the same reason I reject, say, equality of access to medical care, or, for that matter, equality of income. And that's the sense in which I reject "equality of opportunity."

This is also the sense in which "equality of opportunity" requires one to 'stand outside,' because in implies a judgment of which resources people need access to, and which opportunities we should equalize access to. For instance, does equality of opportunity require that I, an 18-year-old college student with no programming experience, have the same shot at getting the top post at a programming company as Bill Gates (should he choose to apply for it)? Obviously not, if we're going to take it seriously, but why?

Posted by: Jadagul | Jun 14, 2005 10:09:01 PM


Posted by: D.A. Ridgely

(1) I favor anti-discriminatory laws insofar as public institutions are involved. I also favor anti-discriminatory laws in a limited number of monopoly type situations similar to the common carrier type situation. I do not believe private anti-discrimination laws would be necessary in most open markets, nor do I understand the logic of requiring a firm to hire or trade with a member of a discriminated class to achieve some sort of vague sense of representative diversity but not to require that class member to be employed by or trade with that private firm.

(2) I’m not a conservative, so I don’t feel bound to participate in a conservative effort to clean up inner city schools; but I’ll take liberal complaints on that count more seriously when they acknowledge that (a) the solution lies in far more than increased spending and (b) their social policies contributed significantly to the state of those schools and, more significantly, to the perpetuation of the underclass whose students attend them.

(3) I am open to the possibility of agreeing to equality of opportunity understood as a minimum floor in the case of children for purposes of housing, nutrition, health care and educational opportunity, but I am suspicious of agreeing to any such principle in the absence of specific details.

(4) I seriously doubt my congressman can read. Even if he can, I have good reason to believe he would treat a letter from me with the same respect pay to his campaign mailings to me.

Posted by: D.A. Ridgely | Jun 14, 2005 10:14:45 PM


Posted by: le sequoit

We should hold equality of opportunity as an ideal, I would think it conducive to a fuller utilization of human talent.

I don't advocate taking anyone's toys away, but that we carry this ideal with us so we might recognize opportunities to move society in a more progressive direction.

If I were a ante-bellum plantation owner I I might be a libertarian; or if I were a textile baron of the Industrial Revolution, or a member of the American upper-middle class.

I am not any of those things.

I am a liberal because the inhibiting nature of government is child's play compared to crushing blow upon blow laid down by the ownership class of America.

Capitalism, like the oak, is very good at establishing a fine root structure.

Unlike the oak, it never knows when enough is enough.

Posted by: le sequoit | Jun 14, 2005 11:32:19 PM


Posted by: Larry

Don Heraog: BMA, meet Larry. Larry, meet BMA.

Howdy, BMA, and may I say that I like your handle, regardless of its irony-quotient.

Two quick points regarding Don's comment above:

In referring to the end of "legal disabilities on Catholics and other religious groups" and the like, it "elides" -- a famous academic error, meaning suppresses -- the crucial distinction between state enforcement of inequality (a bad thing) and state enforcement of equality (also a bad thing, in addition to being an impossible thing).

But there is a notion of equality that's a good thing, and that is entirely achievable because it's a social, cultural, political and legal notion in the first place -- and that is, equality of status, equality based on the autonomy and dignity of each individual human being, without regard to their material circumstances, and without regard to the groups, classifications and collectivities to which they've been assigned, either by birth or by choice. This too is an ideal, not always, perhaps not commonly, achieved in practice -- but it's an aspiration that lies inherently in the hands of us all, and that doesn't require some god-like balancing of cosmic justice.

Posted by: Larry | Jun 15, 2005 12:36:57 AM


Posted by: mtnmarty

Don and Larry:

Doesn't any equality of opportunity conception worthy of the name entail the right of each new human being to a free choice of citizenship?

Posted by: mtnmarty | Jun 15, 2005 10:59:59 AM


Posted by: Bret

Goldwater's platform rather reminds me of "compassionate conservatism."

Posted by: Bret | Jun 15, 2005 11:45:20 AM


Posted by: Don Herzog

Jadagul and Larry both suggest that we should draw a line between 1/getting the state out of legally requiring discrimination (a good thing) and 2/asking the state to draw ground rules to prevent private actors from discriminating. Larry suggests I have elided "the crucial distinction" here.

That might be the right normative line; I don't think it is; but I want to insist it is a normative line. There is nothing natural or necessary or uncontroversial about it. So let's contrast two legal packages of property rights. The first allows private employers to reject candidates on the grounds that they're black. The second forbids it, and grants such candidates legal recourse: they can sue and try to show that their race was the ground of their rejection.

On the table, now (and in Elizabeth Anderson's latest post), is the question, well, which is the right set of property rights? It won't do to characterize the second package of property rights as a violation of the employer's property rights; that's circular question-begging. We're trying to figure out what rights to grant the employer.

So try this. We don't permit contract slavery, not even with informed consent. We could permit it. We could say, "making contract slavery illegal, or even failing to enforce contracts for it, violates property rights!" But now again we need an argument for why property rights ought to include that right.

Meanwhile, alas I'm still finding myself singularly dense on this matter of standing "outside society" or seeking "some god-like balancing of cosmic justice." I can't attach any content to these categories, past noticing that they are pejoratives designed to dismiss a line of argument. So try this. Believe it or not, the reigning public understanding of feudal serfdom was that it was legitimated by consent. (Marc Bloch's two volumes on Feudal Society remain indispensable.) "Why am I a serf bound to this lord and this property?" "Because your great-great-grandfather consented." Early liberal applause for free markets in wage labor depended on contrasting those markets to feudalism, onerous apprenticeship rules, chattel slavery, and the like. I can't figure out why they weren't standing outside society pretending to be god, but if I complain, say, that it's illegitimate to fund public schools on the local property tax base, I am doing that.

Posted by: Don Herzog | Jun 15, 2005 2:34:41 PM


Posted by: AAF

DH writes: "I can't figure out why they weren't standing outside society pretending to be god, but if I complain, say, that it's illegitimate to fund public schools on the local property tax base, I am doing that."

I think that at least part of the disconnect here is that Larry means by "equality of opportunity" something quite different from what DH means when he uses those words. Larry writes: ". . . the good things that are done, often in the name of equality of opportunity -- such as providing a floor of income support, or public schooling -- really have no need for this name at all: income support, for example, is just that, a floor, and it applies at any stage of life not just at a "starting point"; and public schools are a public good, like roads and lighthouses."

Well, if Larry is just objecting to the label "equality of opportunity", while supporting, as a policy matter, income support and public schools, then maybe there's not much of a discussion here. It's hard to discern what Larry does mean by "equality of opportunity" that does not encompass those policies, but it seems clear that he means something different than DH does when he uses those words.

Posted by: AAF | Jun 15, 2005 3:07:06 PM


Posted by: mtnmarty

"Why am I a serf bound to this lord and this property?" "Because your great-great-grandfather consented."

Don, I can't help but ask again. Do you support the free movement of people across national borders based on equality of opportunity concerns?

Since even inner city schools are a big step up for a large number of the world's population and given that the argument against free movement of people is very similar to the argument for feudal serfs above, doesn't it follow that equality of opportunity requires free migration?

Posted by: mtnmarty | Jun 15, 2005 4:41:35 PM


Posted by: mtnmarty

"Why am I a serf bound to this lord and this property?" "Because your great-great-grandfather consented."

Don, I can't help but ask again. Do you support the free movement of people across national borders based on equality of opportunity concerns?

Since even inner city schools are a big step up for a large number of the world's population and given that the argument against free movement of people is very similar to the argument for feudal serfs above, doesn't it follow that equality of opportunity requires free migration?

Posted by: mtnmarty | Jun 15, 2005 4:42:15 PM


Posted by: Larry

AAF: It's hard to discern what Larry does mean by "equality of opportunity"....

The problem is that it's hard to discern what anyone means by "equality of opportunity", except as a kind of banner to paste over "something that I think we should do" (for whatever reason). Don, for example, wants to use it to justify funding public schools from something other than property tax. We could use it, if we thought these were good ideas in themselves, to justify, I don't know, medicare, "legal-care", foodcare, universal daycare (or I guess shelter-care, clothing-care, vacation-care, whatevercare) -- but if we didn't think those were good ideas, as a whole or in part, then we just say no, that's not what we mean by EO, or it's not what's meant by EO just now. (Don has a tendency to say, when some of these sorts of examples are brought up, that they're "ludicrous" -- which they no doubt are, but so what? Is that what we need to depend upon now to save us from still another bureaucratic outrage -- that sufficient people, as yet, will find it ludicrous?)

This is what I mean by it being merely an opportunistic slogan -- it's such a fat, sloppy, and ambiguous concept, that, with just a little ingenuity (and at least a dash of cynicism) it can be added as a garnish to virtually any policy dish. On the other hand, for the earnest people who do take it seriously, the scope of its ambition quickly seems to swell beyond all reach or hope -- here's where the god-like, or, for the sports-minded, referee-like, "standing outside" position comes from. You can try to simplify the problem to something a human being can handle by just ignoring most but not all genetic differentials, for example (it's often thought that we need to do something about race, say, or gender, but not IQ or looks). You can allow for differentials of character on the grounds that they're aspects of individual "merit", but then you have to worry whether you've done enough in early childhood education, in providing full family support, in equipping the couples who are about to form families, etc., so that each human being has an equal chance to develop those essential character traits, etc. You can take money from the Rich and give it to the Poor, of course -- which is what in practice all such EO programs reduce to, after funnelling a sizable cut to a state EO bureaucracy -- but you soon realize that there is no amount of money that would suffice to really equalize opportunity, even if the Rich/Poor differential were down to pennies. At which point you loose at least some of your innocence and revert to "EO as meaningless slogan" mode.

My point in all this is that the concept of "equality of opportunity" is not really an ideal, and not a help in any practical and worthy endeavor -- if the policies in which it's been invoked can be defended on other grounds, then they don't need EO; if they can't, then we can do without those policies.

Posted by: Larry | Jun 15, 2005 4:47:29 PM


Posted by: AAF

Larry writes: "The problem is that it's hard to discern what anyone means by 'equality of opportunity' . . ."

Hard to argue with that one.

Larry also writes: "but you soon realize that there is no amount of money that would suffice to really equalize opportunity, even if the Rich/Poor differential were down to pennies. At which point you . . . revert to "EO as meaningless slogan" mode."

You are certainly right that it is impossible as a factual matter to ever achieve true, complete, "equality" of opportunity. Do your concerns also apply if we drop the slogan "equality of opportunity" and instead start saying we aim for "not-extremely-unequal opportunity"? Or maybe "enough opportunity"? I don't know how that would fly as a catchy slogan, but certainly is a more accurate description of what "equality of opportunity" pushers are actually pushing for, outside of a fictional "Harrison Bergeron" type dystopia.

Posted by: AAF | Jun 15, 2005 5:17:46 PM


Posted by: Jadagul

AAF--I think you have it exactly right. I think Larry's problem is that if you want what is, strictly speaking, equality of opportunity (in the sense of ability-to-take-advantage-of-opportunities), you can't stop at half-measures. You would wind up with Harrison Bergeron. Anything less may be good, and is certainly a reduction of inequality, but it isn't equality. Perhaps a more accurate (if less-catchy) description would be "increasing the opportunities available to those who have few opportunities"? That's a laudable goal--though I might object to the specific ways you'd try to achieve it--but it isn't "equality."

And Don--I agree with you, it's not immediately obvious why, of the two property rights bundles you offer, one is better than the other. I was just trying to clarify discussion (at which I probably failed--I usually seem to make things more confusing, not less) by pointing out that there are two completely different ideas operating under the same name.

Posted by: Jadagul | Jun 15, 2005 5:51:19 PM


Posted by: Larry

AAF: Do your concerns also apply if we drop the slogan "equality of opportunity" and instead start saying we aim for "not-extremely-unequal opportunity"? Or maybe "enough opportunity"? I don't know how that would fly as a catchy slogan, but certainly is a more accurate description of what "equality of opportunity" pushers are actually pushing for, outside of a fictional "Harrison Bergeron" type dystopia.

You see, what I'd really like to say to people -- and I almost feel I need to whisper it lest I shock too many -- is that maybe we don't actually need equality of substance in any form. (And equality of opportunity is just another form, to which its partisans have fallen back as it became clear that the levelling equality of outcome is just an evil disaster.) Equality of status, on the other hand, which I would call the real equality as a moral ideal, we do need. And more opportunities in general, particularly for those with less of them, are an unmitigated good thing. But opportunities are not -- or certainly don't need to be -- traded off as in a zero-sum game. In fact, if it's really increased opportunity we're after and not just some envy-motivated equality of opportunity, then we might well find that increased inequality leads also to the greatest increase in opportunity, for the Poor as well as the Rich, and all of us Inbetweens.

Posted by: Larry | Jun 15, 2005 6:22:29 PM


Posted by: Don Herzog

Seems to me that Larry is trafficking in an opportunistically selective skepticism. He invites us to realize that equality of opportunity isn't all that crisp or precise, that you can build various things in or out of it. I'd say, sure, it's an abstract concept, and there are going to be further political disputes trying to figure out what its best version is. But Larry is perfectly happy to talk about equality of status, and perfectly happy to talk about public goods, and the autonomy and dignity of each individual. The same skepticism could be directed against any and all of those categories, too. So I think Larry has a choice. He can suspend his skepticism about equality of opportunity, he can acknowledge it applies perfectly well to his own favored categories, or he can try to show why his categories really aren't that susceptible to the skeptical objection. It sounds like he's implicitly committed to the third alternative. I don't see any way for him to cash it out, but I'm all ears, or maybe in the blogosphere I should say all eyes.

Meanwhile it is an old canard that equality talk is motivated by envy, though it isn't usual to see the charge pressed against equality of opportunity. So I note again that historically egalitarians have pressed hard for leveling up. Confronted with a world in which, say, rich aristocrats got to go to fancy universities, they did not say, let's banish the universities. They said, let's build lots more of them! and make them public, so that more and more people can go. Hard for me to see why that counts as envy, and hard in general to see why ad hominem psychological reductions should count for much.

Meanwhile I missed mtnmarty's query about open national borders, sorry. I have some thoughts on it, but it's not in the political cards for the foreseeable future, and I prefer making political arguments about things we can change: the art of the possible and all that. But I will be interested to see what Europe's experiments in that direction lead to.

Posted by: Don Herzog | Jun 15, 2005 9:10:31 PM


Posted by: Larry

But Larry is perfectly happy to talk about equality of status, and perfectly happy to talk about public goods, and the autonomy and dignity of each individual. The same skepticism could be directed against any and all of those categories, too.

Oh dear. Question any one of the left's hallowed abstractions and you question abstraction itself, is it? Sounds like Don's trying to change the subject, and that's just an old dodge. He should keep listening, or watching, though -- I'm sure we'll get around to all those other abstractions eventually.

They said, let's build lots more of them! and make them public, so that more and more people can go. Hard for me to see why that counts as envy, and hard in general to see why ad hominem psychological reductions should count for much.

Ah, so that's what they said, is it? And how brilliant! "We want whatever the Rich have, and we want it now!" -- surely no one will say there's any envy in that! See, we're levelling UP, not down! Get it? Everything goes up, nothing comes down! And this magic happens through simple political fiat. Got it.

As for "ad hominem psychological reductions", etc. I could say that this itself is an old canard, but what would be the point. It's not like Don Herzog has ever made such "reductions" regarding the rich, or conservatism, or anything/anyone else, is it?

For something a little more substantive, I'd just say that Don himself has clearly decried "equality of outcome" as a legitimate political aim in general (how he can do that without, in the same post, defending democracy, fraternity, minority rights, etc., against the "skeptical objection" I leave as an exercise for him -- but I digress), and believes that this is something quite distinct from "equality of opportunity". My point -- or a part of my point -- is that it is not, that any attempt to take the latter seriously as opposed to opportunistically (so to speak) will inevitably come down to having to equalize outcomes, and do so repeatedly, as "starting points" get pushed further back, or started over, or recalibrated, and so on. We're all born, obviously, but we're born into contexts, and in that sense life, unlike a game, has no real "starting points" at all. Equality of outcome and equality of opportunity may differ in operational details, but they're really two faces of the same thing -- equality of substance.

One further point: I do think envy plays a role in what drives this faux ideal, but it's clearly not the only thing driving it -- guilt too plays a role. Envy is as bad or worse than the oft-decried greed, but guilt, when it's not just some generalized, existential discomfort with one's life -- or perhaps even if it is -- can be of some practical use if it's re-directed toward something achievable, as in much actual philanthropy.


Posted by: Larry | Jun 15, 2005 11:57:17 PM


Posted by: Bret

Don Herzog wrote: "Seems to me that Larry is trafficking in an opportunistically selective skepticism."

Doesn't seem so to me. As far as the State is concerned, the things Larry was happy to talk about without skepticism (for example "equality of status") are much simpler to implement and are more nearly completely achievable than "equality of opportunity".

Equality of opportunity is a relative measure. We can have more of it or less of it, but we can't really ever (at least for the foreseeable future) actually achieve it in any sort of absolute sense for many reasons including genetics, parenting, community input, other geographic constraints, difficulty of objective comparison of different opportunities, etc.

Equality of status is also, in my opinion, relative cost free and risk free, while additional equality of opportunity may come at great cost. Equality of status is mostly a matter of ensuring that laws are applied reasonably consistently for everybody. There is very little, if any, cost involved, yet possibly great benefit.

Additional equality of opportunity, on the other hand, has both costs and benefits. The benefits are potentially enormous, of course, in that if everyone reaches their full potential we're all hugely better off. Unfortunately, the road to the absolute ideal of full equality of opportunity happens to be the same as "The Road to Serfdom". That's a road we need to make sure we don't go too far down. As additional redistribution is required to achieve additional equality of opportunity (or equality of starting points, etc.), the market signals get distorted, the information in those signals lost or drowned out in the noise, labor and capital markets become more and more inefficient and ineffective, the economy stagnates or even retreats, leaving us poorer and with less (albeit more equal) opportunity.

The risk is that nobody knows how far down the road of redistribution we can travel before encountering serious problems. A common response when I make this statement is that Europe, that pinnacle of civilization, is farther down the egalitarian road and is in great shape. Maybe, but I'm not so sure. There are many tidbits that give me pause. For example, both German and French unemployment is over 10% (about twice the United States). GDP per capita growth in Europe is relatively weak compared to the United States. Also, consider these observations by an Iranian immigrant to Sweden:

One thing that my up growing [as an immigrant in Sweden] has shown me is that there is little incentive to work and educate yourself in the Swedish welfare system. According to the Institute for Labour Policies the average salary of a person who has studied at a university for three years is only five percent higher of somebody who is uneducated. Most Swedish families would have higher income if they lived off government and made some money working in the black market. For a long time the strong work ethics in Sweden has prevented people from exploiting the system. But this seems to be changing. The work ethic has dramatically fallen in Sweden. More and more people are finding ways of living off government as an alternative to working. Between 20 and 25 percent of the working age population does not work. Between 1997 and 2003 the number of people who were on sick leave increased by more than 200,000, a dramatic number for a small country such as Sweden. [...]

The European welfare systems have functioned because of strong work ethics that made people reluctant to exploit them. But these work ethics are the product of a society where you had to work in order to provide for yourself and your family. As people adjust to the political systems we have today the ideas of individual responsibility diminishes. This is exactly what has happened among the large number of emigrants who are dependent on social security. What happens when the rest of the population adjusts to the system?

Good question! Europe may already be too far down the road. I think we should wait another decade or so and see what happens before we follow them.

Posted by: Bret | Jun 16, 2005 1:04:59 AM


Posted by: Don Herzog

Larry, so sharp! I appreciate the good prose, and don't even mind the zingers, but maybe you could lower the temperature a few degrees.

If equality of opportunity were just a ridiculously flabby cover for envy, and "we want what the rich have right now!" was the right explanation for the drive to make education far more broadly available, then you'd expect things you don't see. Historically, or now, I haven't noticed demands for the universal provision of fancy meals at French restaurants -- and that would probably be a whole lot cheaper than education. I haven't noticed demands for the universal provision of globe-trotting vacations. And so on. So I think your explanatory conjecture poorly fits the observed data.

Bret endorses the claim that equality of status is somehow more concrete than equality of opportunity. I remind Bret of bitter political and legal controversies over what that ideal, too, requires. Reserving the franchise for those with landed propety: permissible or not? Separate but equal rail cars and schools: permissible or not? Polygamy: permissible or not? Depriving felons of the vote, and not restoring it after they've served their time: permissible or not? And on and on.

My rejection of equality of outcome is of course a rejection of a substantive ideal, not a skeptical worry that it has no content. And I really do try to stay away from ad hominem reductions of anything and everything, including the rich and conservatism. I much doubt I have a perfect track record, but I really do try.

Posted by: Don Herzog | Jun 16, 2005 8:54:10 AM


Posted by: Larry

... but maybe you could lower the temperature a few degrees.

Excellent point, quite right, my apologies. I did feel a certain sharpness in your previous response, but that may have been just me, and in any case hardly justifies tit for tat.

But let me make just two quick points in reply: one, I don't think any effort to understand, or even any reference to, underlying motivations for cultural or political movements should just be taken as, and written off as, ad hominem psychological reductionism -- though some certainly is, and I can readily agree that we should try to avoid that.

Two, I've been trying to say that "equality of opportunity" has in fact two versions, or perhaps two poles -- in one, it's largely empty of content, indeed, and is simply used to add rhetorical gloss to an issue that may, and perhaps should, succeed for other reasons anyway; in the other, however, it too is a substantive ideal, and then it should be rejected for reasons that are related to, though not the same as, the reasons we pretty much all reject equality of outcome now.

This too is a bit hasty, but I hope more room temperature. I do appreciate the debate and the vigor and intelligence of your -- and others -- replies.

Posted by: Larry | Jun 16, 2005 10:15:32 AM


Posted by: Don Herzog

Thanks much, Larry. Here's another thought on why equality of opportunity is not just the polite mask over a nasty equality of outcome or substance.

Some economists and commentators worry about "the income distribution." They scan the graph of income fifths over time, calculate Gini coefficients, and so on. Me, I don't care. I want to know where the floor is, for other reasons. And I want to know if the Game of Market is being played with the right rules. And I want to know whether the wealthy can take illicit advantage of their wealth in nonmarket spheres. But I have no independent regard at all for the shape of the income distribution. I don't take any consolation in the years we're told it's more equal; I don't get alarmed the years we're told inequality is on the march. I don't care at all.

Posted by: Don Herzog | Jun 16, 2005 10:41:55 AM


Posted by: D.A. Ridgely

Dang! And here I was all gearing up to spend my remaining days on the “floor” punctuating my world cruises with fine French cuisine. (BTW, does Elizabeth Anderson know these won’t be included in our guaranteed opportunity sets?)

One question, though, Mr. Herzog. Would you characterize your position in this regard as common among liberals, or can we construe this as at least some evidence of libertarian and possibly even conservative tendencies on your part? (I’d have made a joke about moving to the Dark Side and “Darth Herzog” here, but knowing your intentional ignorance of contemporary cinema I figured it wouldn’t be worth the effort.)

Posted by: D.A. Ridgely | Jun 16, 2005 11:15:50 AM


Posted by: Don Herzog

Oh, I read enough movie reviews to get that one. I am always reluctant to generalize from a population of students, but my ordinary experience is that if I push back on worries about the shape of the distribution, they turn out overwhelmingly to be motivated by worries that the ground rules are unfair. And if you're thinking that students pliably respond to professorial pushing, I should report that on many other issues they calmly or gleefully inform me that I'm clearly wrong. But it is no part of my purpose here to defend liberals at large, any more than it is to defend the Democratic Party.

Posted by: Don Herzog | Jun 16, 2005 11:40:27 AM


Posted by: D.A. Ridgely

I know it isn't, and I hope (if only because it makes it all so much more fun) that you always have pushy students.

Posted by: D.A. Ridgely | Jun 16, 2005 11:47:42 AM


Posted by: Bret

Darth Herzog wrote: "Bret endorses the claim that equality of status is somehow more concrete than equality of opportunity. I remind Bret of bitter political and legal controversies over what that ideal, too, requires."

It seems to me that the bitter controversies were over whether or not equality of status was a good principal to achieve and had little or nothing to do with how well defined or concrete the principal of equality of status is. Let's consider each example:

  • Reserving the franchise for those with landed propety: equality of status is only possible under the rule of law and not possible under a rule by fiat system. Feudal systems were rule by fiat. So no.

  • Separate but equal rail cars and schools: If the laws provided for separate but equal, clearly no.

  • Polygamy: as long as all people are subject to identical laws, this has nothing to do with equality of status.

  • Depriving felons of the vote, and not restoring it after they've served their time: As long as all felons are subject to the same rules of justice, then the principal of equality of status is not violated.

We can go through every statute and quickly make a determination whether or not it violates the principal of equality of status. Certainly some laws do violate it. Certainly even more violated it in the past. Certainly it's arguable whether or not absolutely complete equality of status is a desirable goal (for example, should a 3 year old and 30 year old be equal before the law). Nonetheless, in each instance, it's fairly concrete and measurable.

One problem with equality of opportunity is that it's very difficult to directly determine to what extent it exists. It's also very difficult to measure the effects of policy attempting to achieve more of it. You can only look at very indirect measures after a huge delay.

For example, let's say we doubled the funding of all schools in poor, inner city districts. Since children currently going through such schools tend to have lower per capita funding and do worse than average career wise after they grow up, a reasonable hypothesis is that the doubling of funding would increase equality of opportunity. But would it actually? How would we know? Even if, 20 years later, we found that the children who were in the better funded schools were better off than the children who went to the schools prior to the better funding, would there be enough data to do a multivariate analysis and show with any significant confidence that they were better off because the increased funding increased equality of opportunity? Maybe and maybe not. But it's not very concrete.

Posted by: Bret | Jun 16, 2005 1:34:04 PM


Posted by: Don Herzog

Bret, I don't see why your confident announcements on these questions show that the ideal is concrete. I report the historical fact that every one of them was controversial. For one of many instances, the Supreme Court wrote in Plessy,

We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.

Which means that "separate but equal" laws don't violate the principle of equality of status. You think this is wrong. I think this is wrong. But it is wrong for controversial reasons that require elaboration. You know too, of course, that some people would rattle off equally confident announcements about what equality of opportunity does and doesn't require. In short, I still don't see the case for any special skepticism about equality of opportunity.

Posted by: Don Herzog | Jun 16, 2005 2:59:15 PM


Posted by: Bret

Don Herzog wrote: "Which means that "separate but equal" laws don't violate the principle of equality of status."

In that case I clearly have no idea what "equality of status" means. Can someone point me to a concise definition that's understandable to a non-lawyer layman (that'd be me)? In the meantime, I apologize for adding any confusion and wasting anybody's time reading my previous comments.

Posted by: Bret | Jun 16, 2005 3:16:31 PM


Posted by: D.A. Ridgely

I'd rather hear how if "separate but equal" inherently violates the principle of equality of status, affirmative action doesn't.

Posted by: D.A. Ridgely | Jun 16, 2005 3:59:25 PM


Posted by: Don Herzog

"Inherently" is loaded, because it makes it sound like I'm pretending my own judgments are any less controversial than Bret's. I'm not. Everything in these realms is properly controversial.

One reading of equality of status is that it mandates color-blindness. That reading cuts against separate but equal streetcars and against affirmative action. Another reading is that it prohibits practices that subordinate racial minorities. That one, arguably, cuts against separate but equal streetcars but not against affirmative action. Still another is that it prohibits practices that subordinate any racial group. That one arguably cuts the same way as its predecessor, unless you can argue that affirmative action subordinates whites. And so on.

Posted by: Don Herzog | Jun 16, 2005 4:31:01 PM


Posted by: Perseus

I have to agree with Don Herzog that I don't see why equality of opportunity is any more abstract and vague than any other political principle (e.g., liberty, justice, the common good, etc.), but that may be because my background is likewise in political philosophy.

However, I find it difficult to accept Don Herzog's apparent belief that there's no general consensus in American society today about equality of opportunity, at least in the sense of eliminating artificial legal barriers that fetter the meritorious. The main dispute, I think, is whether or to what extent equality of opportunity requires "equality of starting points," assuming that equality of starting points requires something in addition to eliminating feudal-like legal barriers.

Minor note: I think that when discussing affirmative action, one should bear in mind that it's not just whites who can suffer adversely because of it, but also those with Asian backgrounds (e.g., being Asian is usually not a "plus factor" when seeking admission to the University of California system).

Posted by: Perseus | Jun 16, 2005 6:46:17 PM


Posted by: AAF

Bret writes, regarding equality of [legal] status:

"Separate but equal rail cars and schools: If the laws provided for separate but equal, clearly no."

I disagree. In an abstract world, with no other indicators of oppression or racism, so long as Race A is prohibited from entering Race B's rail cars in the same way and to the same extent as Race B is prohibited from Race A's cars, and so long as those cars are in fact equal, this does not violate legal equality of status. Same with segregated schools.

In the real world, equality in these cases is violated for various reasons: in substance, because the cars and schools were not in fact equal; in message because the real facts are that this segregation was in fact done to keep down one race and symbolize and extend the contempt in which one race was held by the other; in law because many Jim Crow laws in fact were facially discriminatory. But a facially neutral law in a factually neutral world would not violate equality of legal status.


"Depriving felons of the vote, and not restoring it after they've served their time: As long as all felons are subject to the same rules of justice, then the principal of equality of status is not violated."

Yes it is. You're just assuming that felon/non-felon is an appropriate axis of discrimination, just as 3yr/30yr age is. I do not make that assumption. I think felon/non-felon is an inappropriate axis of discrimination with respect to voting rights. Felons are given an unequal status. The principal of equality of status is violated just as much as depriving any other group of people of their voting rights without an appropriate reason.

Also: "One problem with equality of opportunity is that it's very difficult to directly determine to what extent it exists. It's also very difficult to measure the effects of policy attempting to achieve more of it. You can only look at very indirect measures after a huge delay."

But this is true of just about every broad social or economic policy. Muddle through doing the best we can is all we've got. Equality of status doesn't get us around this problem.

Posted by: AAF | Jun 16, 2005 9:02:37 PM


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