Currie Lecture 2016 | Guido Calabresi, Equality in the American Constitution [35:28-40:28]

would ask is if men became pregnant, would there be laws against abortion? Some people say no, some people say yes, if there were laws against abortion, if men became pregnant as well as women, would those laws be unconstitutional? I don't think so, I don't think so because it would mean that this is something, it really, now what can one do if one is really, really profitous people life but pro equality? What show of earnest in that could you have? Well I have a joke, not a joke, I'd say okay, it's not the same thing but maybe you can show something about how serious, suppose a state said we don't believe people own their own bodies, their own bodies should be used for those who need them, therefore we prohibit abortion or abortion after a certain time or something to women and men must give up their kidneys, their bone marrow, their livers to those who need them for transplant, the law requires it, now not the same thing but it would be a mighty interesting show of earnest if you did that, now when I usually say that there's always somebody, usually a man who says ah but it's only women who engage in sex who have to worry about abortion and I say that's an easy one, only men who engage in sex have to give up their kidneys, their bone marrow, that's simple, that's simple, what I'm saying is that if you want the equal protection clause to act as this safeguard between liberty and fraternity then it has to be not a formal one in the way that Scalia then applies it because then it disappears, you know that may be a way of doing it but then it will not protect you and it will not, it has to be a substantive one and if it is a substantive one sometimes it can be cast everybody for drugs or do this to everybody or make everybody pay sometimes you cannot make it equal but then you do the nearest thing to it, doing the nearest thing to it is easier in Europe where they are more much more aware of substantive equality than it is here for a very interesting reason because doing the nearest thing to it is not treating people the same way it is treating people as near to equally fair as one wants, as one can and in the United States that is much more difficult to do than in Europe because we are cursed with separate but equal, you know we have the history of trying to say, of lying and saying we are treating people equally fairly but differently when we weren't and that is still with us so that we are more suspicious and properly so of anything which is feeding people differently but equally fairly which makes it much harder for us to do some of these things in Europe and on the other hand if you are going to use a gully take as the controlling thing you are going to have to find ways of doing it because you can't always do it the same way well okay there are and you know there is an awful lot of more that might be said and you know you can think about many different things on this the difference in the question of laws against Saudi me whether they are struck down on equal protection if they are not done for everybody or ever they are struck down on due process one libertarian the other one in the egalitarian you can talk about drugs you can talk about terrorism and whom you search you can talk about bodies you can talk about affirmative action you can talk about taking the park now I have a way