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Equal Justice in an Age of Inequality

David Blackwell

Mark Gordon - published on 06/18/14 - updated on 06/07/17

Legal inequality, favoritism toward the wealthy or oppression of the poor, is a handmaiden of economic injustice.

F. Scott Fitzgerald once began a short story with these lines: “Let me tell you about the very rich. They are different from you and me.” Years later, in The Snows of Kilimanjaro, Ernest Hemingway mocked Fitzgerald’s encomium to wealth, writing, “Yes, they have more money.”

I tend to side with Hemingway. The rich are not in fact very different from you and me. Sure, they have more money, but at bottom they share in the panoply of common human experiences, including those from which no amount of cash can insulate a person. They know grief and disappointment, suffer insults and illness, wrestle with addictions, experience love and laughter and loss. The wealthy are persons; each one is imbued with the same dignity and worthiness as every other person.

It is this understanding that forms the basis for the biblical view of equality. Exodus 23:3, for example, proscribes favoring a poor person in a lawsuit. In Romans 2:11, St. Paul declares “there is no partiality with God,” and in Galatians 3:28 destroys the notion that there should be any division in Christ: “There is neither Jew nor Greek, there is neither slave nor free person, there is not male and female; for you are all one in Christ Jesus.” Even James, who doesn’t hesitate to condemn the wealthy for their actions, urges just and equal treatment, writing “My brothers, show no partiality as you adhere to the faith in our glorious Lord Jesus Christ.” (James 2:1-4)

This view of equality also undergirds the political-legal tradition inherited from the Greeks and Romans. In his Funeral Oration, the Athenian statesman Pericles is translated as saying, “But while there exists equal justice to all and alike in their private disputes, the claim of excellence is also recognized; and when a citizen is in any way distinguished, he is preferred to the public service, not as a matter of privilege, but as the reward of merit. Neither is poverty an obstacle, but a man may benefit his country whatever the obscurity of his condition.” The Twelve Tables of Roman law, which codified an impartial approach to procedural justice, was perhaps the most important innovation in Western jurisprudence, and praised by Cicero as the cornerstone of the Roman Republic.

This same spirit has also been the ideal of American jurisprudence, the motto of which is “equal justice under law.” Now, one must admit that for many American that ideal has rarely been achieved. African-Americans weren’t even considered human beings for the first hundred years of the Republic, and for the next hundred their rights as citizens were systematically denied. Women suffered from a procedural inequality that they only gained the right to vote in 1920. And, of course, the poor have always and everywhere been disproportionately frustrated in the quest for “equal justice.”

Still, it must also be said that for the great majority of Americans, equal treatment under the law is a daily reality as well as an abiding ideal. Of course, I write as a white, middle class, Christian man – in other words, as someone with every advantage – yet it is hard to argue that by comparison with other great nations at other times and places, the American legal system has achieved a degree of egalitarianism that is impressive, and for which we should be grateful.

But fault lines are appearing in the egalitarian bedrock of American law, especially with regard to class and income. Increasingly, there appears to be one system for the wealthy and another for everyone else. Perhaps the most vivid symbol of that disparity is the ongoing failure of the federal government to prosecute even one of the key players in the economic collapse of 2007-2008. Vast damage was done to the American economy and the retirement savings of millions of Americans. Wall Street bankers made billions by overleveraging their institutions, devising arcane and risky financial instruments, and in many cases simply lying to their investors. And yet

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