Currie Lecture 2016 | Guido Calabresi, Equality in the American Constitution [30:26-35:28]

It's much harder to do it if it is on you and on me, and that's what the taking clause is about. That's what the taking clause is about, and by the way, I hate to say this, but the best statement of that, of equality as being the guidepost between infringement and liberty and communitarianism, whether this is from the right or from the left, was actually said by Nino Scalia, I say to say it, in the Cruzan case where what Scalia said, are there no reasonable and humane limits that ought to be not to be exceeded in requiring an individual to preserve his own life? Yes, but they are not set forth in the due process clause, what assures us that we won't and then he parades a parade of horribles which are ridiculous as a parade of horribles. I mean the silliest horribles you can imagine limits on driving, things like that, what bothered him or not what bothered me, but it doesn't matter. He parades his horribles and he says what assures us that our salvation is the equal protection clause which requires the democratic majority to accept for themselves and their loved ones that which they impose on you and on me and others. In other words, we must bear the burden if you would impose it on them. Beautiful, now of course Scalia didn't mean it, that is, as we will see, no, I mean he meant it but then he interpreted the equal protection clause in such a formalistic way so that it didn't do the job he wanted it to do because if you interpret the equal protection clause purely formally so that the law in its equality for bits of a rich and poor from sleeping under bridges then the equal protection clause does nothing if you don't worry about whether a law against abortion is wanted by people who don't like women or if people who genuinely believe in fetal life and would be willing to bear the burden and say it doesn't matter because it is equal, everybody men and women are prohibited from having abortions, you don't get much of a safeguard, you don't get much of a safeguard on it, so he doesn't need but the idea, the idea that it is that, that somehow you can impringe liberty, liberty in the interest of fraternity, communitarianism but you can do it only if it is equality if we all bear the burden is a fascinating notion if we can do it, if we can do it and by the way this is not right and left, I can give you examples of both sides, of both sides. Should we, drugs are terrible things, terrible things, so do we test only athletes for drugs, high school students, people who live in projects because we want to do drugs or do we also test people for drugs who live in wood bridges where I live, you know, getting on planes with terrorism is dangerous, dangerous, do we stop people who only look that way when they come or do we stop the judge, every time they stop me and search me, I'm delighted because I say look, that means that we really mean it, that this is bad enough so that we want this, that the same is true with respect to bussy, that is do only the people who go to public school and so on bear that or doesn't have to be all of us, so it is both right and both left, now it sometimes is hard, I mean how do you do this, how do you put the burden on everybody, I don't want to be seeming to be saying anything substantive ultimately about abortion because it's too difficult to think, but how would one do substantive equality with respect to abortion? Well the first question you