Equity, Equality, and the U.S. Declaration of Independence
Section 1 of the Virginia Declaration of Rights, written by George Mason and adopted by the Fifth Virginia Convention on June 12, 1776, states “that all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.”
The Preamble to the U.S. Declaration of Independence, written by Thomas Jefferson and adopted by the Second Continental Congress on July 4, 1776, states that "we hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” Jefferson never claimed originality for his Declaration, maintaining instead that it was merely a faithful rendition of the Colonial Zeitgeist and its interpretation of other sources such as Mason and Locke.
Both Mason and Jefferson referred to all men as being either “by nature equally free and independent” or “created equal … [and] endowed by their Creator with certain unalienable Rights.” However, Mason’s five-fold reference to life, liberty, property, happiness, and safety was boiled down by Jefferson into a three-fold reference to life, liberty, and happiness; consistent with property being subsumed under liberty, and safety under happiness. After all, Jefferson was an author who took scissors to the Bible in order to pare it down to what he considered its most essential features; and in his Declaration he made up for a truncation of the number of ideas with an enhanced capitalization of words.
For the Founders, being by nature equally free and independent - - or being created equal with inalienable rights - - included being free of arbitrary legislative procedures like taxation without representation or bills of attainder. Being Englishmen, they insisted on equal status before the law, which is to say, an equality of procedure or opportunity to receive a fair hearing in a stable legal environment.
In contrast, the legal notion of equity has had a long and checkered career as the antithesis to equality and as a parasite on lawful procedures. Beginning with the English Court of Chancery in the Middle Ages, there occurred the idea that the King’s Law (or “Conscience”) could trump local courts of law. This might have been acceptable if it had been limited to technical issues such as in the following cases: Creditors appeal to a bankruptcy court as a court of equity. A second example pertains to an equal-stock company in which one member did most of the work, incurred an unusual debt, and requested a larger-than-equal pay-out from the enterprise.
The idea of equity as the King’s Conscience always had the potential to degenerate into an enforcement of “whatever the judge says,” while ignoring the actual law. Nevertheless, there evolved a dual track system consisting of courts of law, which adjudicated legislative statutes; and of courts of equity, which adjudicated “fairness” - - or whatever the judge thought was fair. (Later, the judgment might become whatever John Rawls thought was fair.) Hence, the notion of a court of equity, dating back many centuries, entailed creating a parallel court system, generating complexity and obfuscation, circumventing law (especially property rights), and distributing economic goods in accordance with the preferences of powerful elites.
One notes in passing that the term, equity, has a different meaning in business contexts, viz., the ownership of assets that have labilities attached to them (the securities traded in the stock market). One is owed some fluctuating amount of cash by virtue of owning such securities, provided that someone wants to make a market in those securities. Hence, equity markets are somewhat reminiscent of equity courts in awarding some value that is due: Equity values in the stock market are objective in the sense of being the highest bids, whereas equity values determined by a court of equity are essentially subjective.
The meaning of equity most in vogue today is the distribution of economic goods in accordance with the racial preferences of intellectual elites. Christopher Caldwell, writing in the May 17, 2021 National Review, mentions three female mayors who were recently recognized for administrative acumen by the MIT business school. These mayors were praised as purveyors of equity, despite presiding over cities with appalling homicide rates and other social pathologies. Caldwell finds that the perceived paramount importance of equity derives from an assumed absolute (categorical) imperative to eliminate all collective racial inequalities, to abandon equality of opportunity, and to adopt equality of result. Although Caldwell does not so conclude, it would seem that enforcing collective racial equality over time would require all racial groups to experience alternating eras of subjection and preference that would “average out” in the long run.
In today’s conception of equity as delineated by Caldwell, first, all inequality across identifiable groups is proof of white racism. Second, equity is race-conscious rather than race-blind. Third, civil-rights law overrides the U.S. Constitution. Caldwell does not state the seemingly obvious rejoinder that “the new anti-racism is the old racism.” Indeed, some white Wisconsin farmers recently won a court case in which they objected to agricultural debt relief being parceled out on a racial basis. The judge in that case made two points: The obvious solution to old racism is to disallow any new racism, not to embrace even more racism. Furthermore, “the Biden administration is radically undermining bedrock principles of equality under the law.” In other words, equity, as construed by the Biden administration in this case, violates equality.
Caldwell maintains that the Biden administration is now radically redefining the American idea of fairness. Equity and fairness are said to derive from so-called critical race theory, but as we have noted above, this is not true. Courts of equity have been around since King Henry III in England; but critical race theory has only been around since 1989, when Marxists - - thwarted by the fall of the Berlin Wall and the collapse of international socialism - - substituted “race struggle” for “class struggle” and continued their long march through the institutions. From another perspective, Caldwell notes that contemporary critical race theorists, having found that equity as “race-blindness” is not achieving their desired results, now propose that equity as “race-consciousness” is the sine qua non for the formation of social policy.
Many people may assume, Caldwell writes, that the Civil Rights Act still functions in order to fight discrimination; whereas what passes for civil rights today has moved on to equity ideology, especially among large corporations. There is much money to be made in giving corporate seminars like “A Ten-Step Plan to Embed Race Equity in Your Organization.” Any employee dissenters from equity theory are likely to be treated as deviants from a Maoist self-criticism session.
“The most troubling innovation of equity is its tendency to move in a direction that will, in time, reintroduce segregationist thinking,” as when Illinois U.S. Senator Tammy Duckworth announced that she will vote to block the confirmation of all white nominees brought before the Senate. Caldwell concludes that “perhaps equity is best thought of as diversity or affirmative action taken to its logical conclusion.”