Currie Lecture 2016 | Guido Calabresi, Equality in the American Constitution [15:16-20:22]

But the people who wrote the 14th Amendment were very aware of the First Amendment, you go and look, and they knew perfectly well that that is the highest level of egalitarianism. The First Amendment egalitarianism, no weas, no ways, no affirmative action, and you have a right to flaunt, is the highest level of egalitarianism. But they knew it could be given to the people to whom the 14th Amendment was addressed. Not an accident, but the 14th Amendment congresses did plenty of affirmative action. Affirmative action, that is what initially they call substantive equality, is against formal equality, that you have to treat people who are in fact different because of the way they have been differently in order to treat them equally, and whether that is a person who cannot see, not being given the same reading exam as somebody who can, a person who cannot walk, not being made to go upstairs, and anything number of things of that sort was an essential part of what the 14th Amendment was about. They all hoped, and hoped that someday, this group too, these groups too, would be able to achieve First Amendment equality. When? Oh no. Justice O'Connor in Grootter says 25 years. 25 years said that way is like the Biblical 40. You know, in the Bible 40, and in the Middle East 40 comes up all the time. Alibaba in the 40 feaves, 40 days in 40 nights, 40 visits, it's meant a long time. You know, 40 in the Bible means a long time. We don't know when. And that's what Grootter says. Yes, it is something we are aiming for. I claim to be related to Israeli, and it may be true, and Israeli said something of that sort. In 1837, when the Second Great Reform Act was proposed, they said to him, and he supported it, in 1832, you said that the Great Reform Act of 1832 would last forever. And the Israeli said 35 years in politics, but it is forever. You know, that these words are words that say something. So someday, 14th Amendment equality will not be needed, and 1st Amendment equality will be. Something both happened with 14th Amendment equality, especially as it came to be applied to the masses of immigrants that came in from 1820 to 1980 to 1920. 14th Amendment equality, psychologically, not logically, but psychologically also came to mean we will give you equality if you act like us. That is, you can't flaunt. You have to be, like the previously dominant group, that's the melting pot. You know, the glory of the melting pot, what was said then, was, yes, equality, but you all behave like us. Contrast that with a 1st Amendment. Now that's not logical. You don't need to have that with affirmative action, with the 14th Amendment, but that's what tended to happen. And that then raises the question of today, today, what does one want? What kind of equality do different groups want? Immigrant groups, African-Americans still buy and large 14th Amendment equality, arguing against the melting pot and the need to be like everyone else fighting against it,