- Center Right Live
- Posts
- Equity in the U.S. Constitution
Equity in the U.S. Constitution
Constitutional lawyers contend that equality requires equity.
Constitutional lawyers contend that equality requires equity.
In recent years, analysts have argued that the Founders of the United States would not settle for mere equality if they knew what American lawyers and historians know today: Equality cannot be achieved without equity.
In June 2019, Wilfred Codrington argued in the N.Y.U. Review of Law & Social Change that while the U.S. Constitution promises equality, it has historically failed to deliver on this promise for marginalized groups. But why?
Codrington argues that liberty, arguably the most entrenched principle underlying our legal system, works more seamlessly with equity than equality. Thus, a shift towards equity, rather than equality, is necessary in order to truly achieve the equality that the Constitution demands.
At Woke: Love Thy Neighbor, we previously looked at both the similarity, and the simple difference, between equality and equality: Equality provides a level foundation for different people, but it fails to account for unjust barriers confronting each individual. Equity overcomes these barriers, without providing an unearned “free ride.” One further step, Justice, removes these barriers so that they need not be artificially overcome. In short, people deserve equitable opportunity, not equal success.
Codrington contends that equal opportunity may be achieved by removing barriers and extending affirmative action to those who have been unjustly held back. Without such equity, Codrington suggested, the Constitutional demand for equality under the law cannot be met.
More recently, in 2022, Robert Longley similarly wrote in his article Equity vs. Equality: What Is the Difference:
The legal principle of social equality in the United States was confirmed in 1868 by the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, which provides that “nor shall any State […] deny to any person within its jurisdiction the equal protection of the laws.”
A modern application of the Equal Protection Clause can be seen in the Supreme Court’s unanimous 1954 decision in the landmark case of Brown vs. Board of Education, which declared that separate schools for African American and white children were inherently unequal and thus unconstitutional. The ruling led to the racial integration of America’s public schools and paved the way for the enactment of more sweeping social equality laws, such as the Civil Rights Act of 1964.
Longley observes that the Civil Rights Act of 1964 only strove for equality without equity. To achieve true Constitutional equality, forms of equity such as affirmative action or barrier removal must happen first — and this did not happen.
Longley emphasizes the need to move towards equity-first in order to resolve historical injustices and, with subsequent equality, ensure that everyone has a fair opportunity to thrive (or not thrive) on their own merits.
Unfortunately, as Longley notes with painful examples, today’s federal courts are biased against both Constitutional equality AND the prerequisite equity.