Currie Lecture 2016 | Guido Calabresi, Equality in the American Constitution [10:10-15:16]

fraternité has been in the American system, something which, whether from the right communitarianism or from the left, is something that the legislature has pushed, but was not really in the Constitution. And the kind of conflict between a libertarian and egalitarian Constitution and communitarian pressures from either side in, from the legislative coming later is a part of all of our history. Well, where was egalité in the framing? In many things, the Bill of Attainer Clause and things like that, but most especially, most especially in the First Amendment, religious liberty clauses. You've got to remember that more than slavery, more than anything else, what divided the colonies at the time they united, was religious differences. To be Anglicans in Virginia, the Calvinism of New England was in the Bahamadation. And to the Calvinists in New England, the popery of Virginia, not to mention Maryland, and those crazy Quakers in Pennsylvania, and who's to say what Rhode Island was, was extraordinarily troublesome. They had killed each other less than a hundred years before on account of that. And yet, the First Amendment at the federal level, because at the state level, and that's another thing, an article you'll see of mine coming out in Minnesota, at the state level, they wanted to have differences. But at the federal level, they declared the highest level of equality. There are no re-religions. There are no very religions. All religions are equal. There will be no affirmative action for any religion over any other, because all religions are equally re-religions. And every religion has a right to flaunt. That's a free exercise clause. You can be yourself, and you can flaunt. And all are the same. That is the highest description of equality. And what is more, Congress keep out. Congress shall make no law. The government stays out. People can be themselves, and are all equal. Now, in fact, even that, but we have don't have time to talk about it today, but if you want a question, it wasn't exaggeration, because of course, cults were out here. That's always a question of what is a cult. And the other thing is, I think that there may well have been affirmative action for secularists, which is kind of interesting, because there is no need for affirmative action for secularists today. And many of the cases that come up today really have to do with that issue, but that's another matter. But among religions, no we, no they, no affirmative action. Contrast that egalitarian statement with the egalitarian statements of the Civil War, of the 14th Amendment, especially with 14, 14, 15, 15. People who were not people will be considered people, the 14th Amendment says, not only will they be considered people, but citizens, not only citizens, but equal. And Congress has the right to act, to treat them equally. Contrast the two powerful egalitarian statements of these two, the framing and the Civil War restatement. Necessary in the Civil War context, because what they were talking about were people who were treated as animals, because in American law that's what slaves were treated as, and we're still suffering the consequences of that. So 14th Amendment egalitarianism, very different from First Amendment egalitarianism.