The New Road to Equality By Grover Clark

The Atlantic July 1921

Editor’s Note: For background on Grover Clark see his Wikipedia page here

‘EQUALITY before the law’ has been, and still is, one of the favorite battle-cries of the democracy. ‘Class legislation’ and ‘special privilege’ have been equally popular as objects of attack. But there has not been a corresponding unity of interpretation of these phrases — of understanding as to what they are to mean in terms of specific legislation and social organization.

We condemn class legislation and special privilege as severely as did our predecessors. Modern industrial and social development, however, has forced us to a new conception of what belongs under these categories. We insist as strongly as they that. men should be equal, before the law, in opportunity, and in all their relations with their fellows. But we are finding that a new technique, a new kind of legislation, and a new attitude on the part of’ the government are necessary, if that. equality is to be real and not merely theoretical.

I

In the care-free days of rampant individualism and the laissez-faire theory in industry, the government, was supposed to keep its hands off the organization and conduct of industry. Labor laws, factory laws, anti-trust laws — all such were held to be violations of the fundamental right of individuals to pursue life, liberty, and happiness in equality before the law. If some were more successful than others in securing financial or other rewards for their efforts, they were to be congratulated. And certainly it was no part of the task of the government to handicap men in the race for success. Yet to-day we have such laws in profusion: laws that put a special handicap on some individuals, or give special advantages to others. And our Supreme Court has found it possible to approve, as constitutional, such measures.

If by ‘class legislation’ we mean legislation that favors or restricts some special group in the community, then many of our more important modern laws must plead guilty to this charge. Tariff laws are designed to benefit particular groups — the manufacturers. Labor laws benefit the workers. Antitrust laws put a handicap on the organizers of business. Income and profit taxes are collected from a very small portion of the whole people. Even the woman’s suffrage amendment was class legislation, since it benefited only a part of the community. Yet we find no great difficulty in approving such measures, because we feel that, while they may apply in practice to special groups, they benefit the community as a whole. And we avoid a technical infringement of the principle of equality by stating the special privileges, or the special prohibitions, in terms of ways of acting rather than of persons, even though we are well aware that in practice certain specific persons, or groups of persons, will be directly affected.

It is little more than soothing self-delusion to say that in this respect there is any essential difference between the stipulation in the Clayton Anti-Trust Act of 1914, which exempted labor organizations from the prohibitions of the Sherman Act, and the provisions of the old English law, by which the nobility could plead exemption from certain penalties of the law for the common people. Nor is there, from this point of view, any essential difference between a tariff to ‘protect’ an ‘infant industry’ and the feudal law that gave the king administration of the estates of minor heirs. In each case special groups are given special advantages.

The difference, of course, is in the social results. We approve the modern regulations in each case, — it we do approve them, — and condemn the ancient, because, as I have suggested, we think the community as a whole is benefited, or injured, as the case may be. But we need to keep clearly in mind, in discussing these matters of special privilege and equality before the law, that most of the ‘progressive’ measures on which we are inclined to pride ourselves are in reality class legislation; and while we may not approve much of the Socialist programme, we need to be careful about throwing stones while we have so much glass in the walls of our own house.

We condemn, for example, the seizure of socially usable property by the government of the Bolsheviki on the ground that it is class legislation. Yet we approve an excess-profits tax, — at least, the majority of us do, as represented by our lawmakers and our Supreme Court, — which is a seizure, in essentially the same way, of socially usable property. We deny the claim of a monarch that his kingdom is his private property, to do with as he may choose. Of late, like the Bolsheviki, we have begun to deny the similar claim of a manufacturer as to his factory. But wo grant the claim to private control of private property in most other cases. Yet there is no essential difference between these claims. The difference — as in the cases cited above — is not one of kind, but of degree. The question is not whether a person or a group shall be given special privileges or be favored or handicapped by class legislation; rather it is, how far the principle of favoring one group is to be carried, and of the relative size of the group favored.

In other words, we are learning that it is impossible to obtain real equality between men on an individualistic, laissez-faire basis. And in actual practice we are seeking that equality by various sorts of special legislation, which favor one group as against another. But our interpretation of the doctrine of equality has lagged behind our practice.

II

This inconsistency between the older conception of equality and much of our recent legislation has not escaped the notice of able students of politics. Nor have some of them failed to point out the growth of a tendency to stratification of the American people into classes delimited, if not actually created, by legislation which definitely grants, or does not positively deny, special privileges to special groups. This, for example, is the point of Mr. George W. Alger’s article on ‘The Menace of New Privilege,’ in a recent issue of the Atlantic Monthly.

Many see in this tendency a grave danger to American social organization as we know it, and a fundamental challenge to democracy, just because it runs counter to the older, and even now more generally accepted, interpretation of the doctrine of equality. Mr. Alger expresses this point of view most effectively in his concluding paragraph: —

‘In the final analysis, the question resolves itself into whether we desire the development in America of class-war by recognizing class-distinctions, class-rights, and class-privileges, which make, not for peace, but for inevitable conflict. The time has arrived when this great question must receive a far more thorough and consistent study by the American people, not as classes, but as citizens; not as petitioners for special privileges, which the nobles of feudalism surrendered, but as the willing participators in a system of law whose basis is equality, a system which can have no other basis than equality, if democracy is not to perish from the earth.’

But in this ‘thorough and consistent study’ it will appear, I think, that, crude and in many ways undesirable as this recent class legislation is, it is, after all, the product of a real though somewhat blind striving to re-establish that real equality before the law, and in the relations between men, which modern industrial development has destroyed. One does not need to be a ‘Red’ to realize that in actual practice there is little more than a theoretical equality before the law in America today. The accumulation of wealth in the hands of certain individuals and certain small groups has given them a power that has made almost a mockery any talk of equality between all men in any significant sphere of life. The tale of the special advantages that wealth has brought its possessors has been told too often to need repetition here. But it is exactly this disturbance of the even balance of equality by the power of accumulated capital that has led to the whole movement for social legislation of all kinds.

Labor laws, factory laws, the exemption of labor-unions from the operation of the anti-trust laws, minimum-wage legislation— all these and the multitude of other attempts to better the conditions of living of the ‘have-nots’ are fundamentally attempts to restore the balance of equality by putting the weight of legislation into the scale against the power of capital. All these measures are class legislation, for they give special advantages to one part of the whole group as opposed to some other part. But men have felt that it was necessary to give such advantages, in order to save the large majority from complete domination by a small minority — that is, in order to preserve equality.

III

There can be no serious denial that the attempt to re-establish equality by these means has had many unfortunate results, or that certain groups have insisted on special privileges for themselves at the expense of the people as a whole. But the labor organizations, the farmers, the cotton-growers, and the rest, are by no means the only ones guilty on this score. And neither can the claim be seriously advanced that the developments in the capitalistic organization of industry, which are in large measure the cause of this attempt, have been an entirely unmixed blessing. These developments, producing the necessity for large accumulations of capital to carry on industry, and the actual accumulation of capital to meet the need, together with our conception of the rights of private property, have given a disproportionate share of power to a relatively small group in the community, and so have eliminated real equality, whether before the law, or of opportunity, or in any vital sense.

But the fight for equality will go on. And, whether we like it or not, so long as the social organization and the laws permit certain men — or certain small groups — to secure and hold more than their share of actual power and opportunity, so long will the effort be continued to right the balance by organization into groups and by legislation favoring the non-privileged groups.

Whether this attempt by the larger groups, made up of the individually less powerful, to secure equality by insisting upon ‘class-rights and class-privileges’ will mean ‘class-war’ and ‘inevitable conflict’ will depend principally on the vigor of the resistance made to the attempt by those who are favored by the present inequality. Unquestionably, the problem must be faced by ‘the American people, not as classes, but as citizens.’ But there is real danger in the present situation, not primarily because the large majority of the American people are ‘petitioners for special privileges,’ but because a small minority, who possess special privileges, are reluctant to give them up.

At present the attack on the citadel of privilege is being made more or less independently by separate groups; and each group, of defenders as well as of attackers, is, naturally enough, more keenly awake to its own immediate interest — that of securing for its members full equality with the most favored individuals, or of protecting what privileges they possess — than to the interests of other groups. Hence the tendency to stratification into classes. But the fundamental cause of this stratification is not a lack of desire for equality on the part of those who are seeking advantages, but a failure to unite into a single army the different bands fighting in this cause. Men, however, are realizing that this lack of unity delays the final victory — or weakens the defense; for there is a similar lack of unity among the privileged groups. Consequently, we are hearing more and more about the necessity for presenting a united front on both sides, and are witnessing, not only in the United States, but throughout the whole world, the steady growth of the tendency toward a merging of separate classes into the two great groups of the ‘haves’ and the ‘ have-nots.’

IV

The fight for equality is not new; but the recent attempts to secure equality have been along a somewhat new line. Instead of taking the negative course of denying special privileges, as our predecessors did, we more and more are positively asserting the rights of special groups.

When men first tried actually to build a society on the principle of equality, the most pressing problem was to clear away the special privileges of certain classes. Magna Carta, for example, represented an attempt on the part of the nobles, not primarily to secure powers for themselves, but rather to take powers away from the king. Similarly, the long history of the development of democratic control, until quite recently, is a record of progressively successful efforts on the part of the representatives of the people to wrest power from the king or the aristocracy. When the rights of the people were positively asserted, it was not so much from lust for power as such, — as the rights of the kings and the aristocracy had been asserted against the people, — as from a desire to secure protection from the abuse of power in the hands of the aristocracy. Equality was to be achieved, as it were, by taking away the jewels and rich clothing from the favored few rather than by giving jewels and rich clothing to the many.

Utilitarian individualism and the laissez-faire doctrine were the natural results of this conception of how the equality of men was to be realized. To carry on the figure: business practice and social legislation generally, for a large part of the nineteenth century, were based on the assumption that everyone started out with a full suit of clothes, while, if anyone was clever enough to get another man’s coat away from him, or to find jewels to wear, that was none of society’s business. But toward the end of the century, it became obvious that a few people had virtually cornered the supply of clothes and jewels, so that in reality there no longer was even a suit for everyone, except at the pleasure of these few.

To drop the figure: with the accumulation of capital in the hands of a few, the emphasis in democratic legislation shifted. Such legislation sought less and less to take privileges from a small group and more and more to assert them for larger groups. The difference between the Sherman and the Clayton Anti-Trust acts is a case in point. The first specifically denies the right to form certain kinds of combinations — which affected, as was intended, a group numerically small but financially powerful. The latter specifically asserts the right of other groups — the laborers, the farmers, and so forth — to form combinations of a sort which, in certain respects, would otherwise be in violation of the Sherman Act.

As I have suggested, from the older point of view the exemptions in the Clayton Act are clearly contrary to the doctrine of equality before the law. Yet, as will be generally admitted, the Clayton Act gives special advantages to labor organizations for the definite purpose of helping the workers to secure real equality in their relations with their employers — an equality that had been destroyed by the power which the employers possessed through their control of capital. In reality, therefore, this act is the product of an attempt to make actual this theoretical equality, rather than to destroy a real equality.

This newer tendency, through legislation, to give special advantages in order to maintain a balance of equality has had some unfortunate results. But the solution of the problem of class-conflict will not come through returning to the older attitude, even if that were possible. A continuation of the laissez-faire individualism of the nineteenth century would have resulted in the creation of a new aristocracy based on wealth rather than on birth, — in the beginning, at least, — which, if unrestrained, would have developed all the objectionable features of feudalism. A return to this older attitude, the reincorporation into our legal and political practice of the older interpretation of equality before the law, would mean, not the saving of democracy, but its destruction.

Democracy will be saved, real equality, not only before the law, but in all men’s relations, will be secured, by making sure, through legislation or otherwise, that a balance is maintained, in spite of the weight on one side that comes through t he possession of capital. Clearly, the balance is not even now. Equally clearly, we should not overweight it on the other side. But neither should we forget that we must take active steps to achieve a balance. Negative effort toward taking away advantages from the few will no longer suffice. Such efforts cleared the ground for the growth of the present inequalities; and men will always find means to circumvent merely negative prohibitions. Our task therefore is, with due consideration for the interests and rights of all, to go forward along the positive line of giving advantages to the many, so that they may achieve a real equality with those who have secured special advantages for themselves.