Currie Lecture 2016 | Guido Calabresi, Equality in the American Constitution [5:03-10:10]

of doing that, where I think we can. I want to talk to you about equality in the American Constitution. And I want to start 58 years ago when I was, I just arrived in Washington to be a clerk for Justice Black. And it was an amazingly exciting time, because it was the summer in which Aaron V. Cooper was decided. The governor of Arkansas had decided to send troops to block the segregation of the schools in Little Rock. And Eisenhower was not particularly favorable to integration, but he had, at his right hand, two remarkable people, Herb Brownell, the attorney general, who was a yearly, and rank in the solicitor general, and they convinced him that it was essential to have the Supreme Court's orders followed, and so he nationalized the state guard and sent troops in to desegregate. Little Rock sued and said, you can't send troops. And it came up to the Supreme Court, I'm not describing it exactly right, but came up to the Supreme Court, and this was what happened before the term began when I just got there. And we were all there listening to the argument. And in the middle of the argument, the lawyer for Little Rock said that if troops were used, school and education would suffer. So one of the justices, meaning forward from the bench, said to Rankin, the solicitor general, do you can see that if troops are used to desegregate the schools, education will suffer? And Rankin stood there for a moment and then spun around three times and said, I concede that I concede more. I concede that lives will be lost if troops are sent to desegregate the schools. And I want the court to tell the nation in the world that there are values greater than life itself and that equality is one. And so the court held that extraordinary opinion, which was not only unanimous, but signed by everyone of the justices. I was very proud of the Supreme Court then. And I'm proud of it now, but as you will see, that decision in question about lives and what creates some problems, which will be one of the things that I'll be talking about today. I'll come back to that later on in my talk, but it is the framework for what I'm talking about. We tend to think of equality as being in the Constitution. Equality is a value being put into the Constitution in the Great Civil War amendments, the 13th, 14th, and 15th. But in fact, egalitarianism is a fundamental part of the American Constitution in each of what Bruce Ackerman calls the three moments, constitutional moments. The Civil War, the New Deal, with caroling products and discrete and insular minorities, which now after Bob Dahl, we know means also diffuse and disorganized majorities. But it was also very much in the framing, in the original part of the Constitution. I would argue that in fact, if you look at the American Constitution in counter distinction, with what was going on in France at the same time, where or shortly after, where the motto was liberté, galité, fraternité, liberty, equality, and today we would say not fraternité, but communitarianism, social cohesiveness, and so on. In the American Constitution, there were two themes, liberté and egalité, liberty and equality.