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Authors: Robert H. Bork

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The admission of envy is even more surprising when one considers who “the rich” are and how they got that way. We are not talking about South American plutocrats living on million-acre estates that have been in their families for generations while peasants scrabble for a living on tiny plots of land. In America “the rich” are overwhelmingly people…entrepreneurs, small businessmen, corporate executives, doctors, lawyers, etc.…who have gained their higher incomes through intelligence, imagination, and hard work. The desire to deprive them of the rewards they have earned, with no tangible benefit to oneself, is pure envy, and it is an ugly emotion. Yet it is the basis for progression in our tax system, as it is the basis for much else in our culture and social policies.

Envy is not simply about inequality, however. It is, as Bertrand de Jouvenel points out, about who is unequal: “During the whole range of commercial society, from the end of the Middle Ages to our day, the wealth of the rich merchant has been resented far more than the pomp of rulers. The ungrateful brutality of kings towards the financiers who helped them has always won popular applause…. The film star or the crooner is not grudged the income that is grudged to the oil magnate…. [The people] want to feel that exceptional income is their gift and they demand that beneficiaries thereof shall make a gallant spectacle.”
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Were he writing today, observing many of our entertainers, Jouvenel might want to drop the word “gallant” from the last sentence.

There may, however, be an additional reason why the wealth of merchants and oil magnates, and even that of mid-level doctors and engineers, is resented far more than that of kings or film stars. People accept that they cannot be kings or film stars. But in an increasingly meritocratic society, they are asked to accept as well that there is justice in the standards by which others have outpaced them. The comparison between their incomes and those of the most successful businessmen is thus felt to be invidious. This may be one reason the merit principle, reward according to achievement, is today under attack.

The desire for equality of incomes or wealth is, of course, but one aspect of a more general desire for equality in such matters as social and cultural status. “The essence of the moral idea of socialism,” historian Martin Malia wrote, “is that human equality is the
supreme value in life.”
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Socialism is thus merely the manifestation in the field of economic organization of a more general yearning that operates across the entire culture.

The French scholar Pierre Manent, discussing Tocqueville’s views on equality, remarks that every man naturally wants to believe that he is just as good as anybody else. In a democracy, the law adds its authority, proving his equality by giving him an equal share in the governing of the nation. “But what his heart whispers to him, and the law proclaims, the society around him incessantly denies: certain people are richer, more powerful than he, others are reputed to be wiser or more intelligent. The contradiction between social reality and the combined wishes of his heart and the law, therefore incites and nourishes a devouring passion in everyone: the passion for equality. It will never cease until social reality is made to conform with his and the law’s wishes.”
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The usual strategy for coping with the discomfort of knowing that others are superior in some way is to try to reduce the inequalities by bringing the more fortunate down or by preventing him from being more fortunate. This is the strategy of envy.

The apparent difficulty of requiring equality of wisdom and intelligence was solved in a satirical story by Kurt Vonnegut in 1961, even before the plethora of civil rights laws seeking equality by race, ethnicity, sex, age, disability, and so on and on.
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Americans would achieve perfect equality by forcing persons of superior intelligence to wear mental handicap radios that emit unsettling noises every twenty seconds to keep them from taking unfair advantage of their brains, persons of superior strength or grace were to be burdened with weights, and those of uncommon beauty must wear masks. Thus, social reality can be made to conform with the envious man’s and the law’s wishes.

The unwillingness to admit inherent individual differences is astounding. One night, shortly after I became a federal judge, I spoke informally to a gathering of Yale law school alumni in Washington. Someone asked how I found the quality of briefs and oral arguments, and I replied that some were quite good but a great many were poor, some sadly so. The question was then put, why should that be so? I said that many areas of law and procedure had now become so complex that the gene pool was inadequate to operate the system. Afterwards, my clerks gathered around
me and said, urgently: “Never say anything like that again.” They said a shock had run through the audience at the suggestion that talents differed and that the differences might be largely inherited. They did not deny that it was true, but were adamant that it was not a politic thing to say.

The advance of this “cultural socialism” was under way well before the Sixties. Our leveling instincts are so developed that men and women are allowed celebrity, but, outside the realms of entertainment and sports, rarely are they permitted superiority. Great men are no longer admired, unless they learn how to disguise their greatness. Otherwise, they will be faced with the fatal charge of “elitism.” Even to speak of “great men” now has an old-fashioned, even reactionary, sound about it.

The contrast between the popularity of Douglas MacArthur in the First and Second World Wars and of MacArthur and Dwight Eisenhower during World War II illustrates the rise of cultural socialism or radical egalitarianism in the twentieth century. William Manchester writes: “Egalitarianism did not become the triumphant passion of Western society until about the middle of this century…. Veterans of World War I and World War II saw MacArthur very differently. Doughboys were proud to have fought under the General. GIs weren’t; by the 1940s antiauthoritarianism had become dominant.”
16

Mid-twentieth century seems to be when envy and egalitarianism became rampant together: “Since about the middle of this century a quite remarkable irresolution and weakness toward the envious have manifested themselves in a significantly greater number of people than hitherto…. The mere expression of envy, whether in a political speech or caricature, or in a satirical song etc., is now enough to convince such people that an objective infringement of justice exists…. [W]e meet with an insufficiently reasoned reaction which accepts all forms of envy as justified in the light of the idea of equality.”
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One American general noted the contrast between the singing armies of World War I and the wisecracking armies of World War II. That difference reflects a massive cultural shift. A singing army expresses an element of romanticism, of poetry. Such an army would be capable of admiring courage and ability, even distinction, all of which MacArthur displayed. The wisecrack, however, is
a leveler, a means of bringing down the person at whom it is directed. The San, African bushmen who foraged widely, were egalitarian out of necessity, but “Culture reinforced necessity: the San engaged in ritual joking designed to deflate any claims to status or prowess.”
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MacArthur’s grand manner aroused intense dislike and made him the butt of countless jokes in World War II. Eisenhower designed a blousy battle jacket that bespoke informality, and he cultivated the troops with a regular-guy manner. There was no doubt who was more popular. The troops spoke affectionately of “Ike,” but referred sarcastically to “Dugout Doug” (who actually took more chances with his life than most of his men did). The change between wars was not in MacArthur but in America.

Why egalitarianism should have become an obsession between the two world wars is difficult to say, but that it did cannot be doubted. The ground was thus prepared for the Sixties generation which grew up in the grip of the “triumphant passion.” The Sixties rebels attacked hierarchies and lines of authority resulting from merit and achievement. They wanted parity with the faculty, an end to grading, admissions on the basis of race, and the right to participate in the governance and alteration of academic institutions they did not understand and would be in for only a few years. Allan Bloom wrote at the time, “[I]t is almost inconceivable to them that there can be a theoretical questioning of the principle of equality, let alone a practical doubt about it…. Student participation is the catchword in all talk of university reform. The goals to be achieved by student participation are never explicitly defined. It is enough to refer to the democratic view: everyone has the right to vote.”
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In a seminar we taught together, Alexander Bickel got into just this argument with the students (who were not particularly radical). To illustrate his point, Bickel asked them to suppose a group of a dozen people trying to decide whether to picnic at the beach or in the mountains. It turns out that five of the group are utterly indifferent but want to vote on the question anyway. Bickel contended that they should not be allowed to vote, that the outcome should not be determined, whimsically, by people who have no interest in it. But many, perhaps most, of the students thought the right to vote was more important than the desires of those who cared about the location of the picnic. This feeling explains efforts,
such as the Motor-Voter Act, to make voters out of people who don’t care about elections. Nor was it just the right to vote; the students wanted an end to status. One student said to me that the faculty and the students would get along if we conceded that neither side knew anything. I was willing to concede half his proposition. When they moved out to the wider society, those students did not know a great deal more than when they entered the universities, but they had many more targets for their egalitarianism. They carried with them the belief that hierarchies are presumptively illegitimate, and very nearly conclusively so. From there it is a short step to the rejection of the achievement principle since differing achievements create hierarchies.

Karl Mannheim, a German sociologist, saw this coming at least as early as 1940. He proposed that three principles for the selection of elites…blood, property, and achievement…have marked different historical periods.
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Aristocratic society chose elites primarily on the blood principle; bourgeois society on the property principle; modern democracy has stressed the achievement principle. These were never entirely pure principles; achievement, for instance, could lift one into the elite even when one of the other two principles was dominant. Of more interest to our current situation is that Mannheim also wrote: “The real threat of contemporary mass society [is] … that it has recently shown a tendency to renounce the principle of achievement as a factor in the struggle of certain groups for power, and has suddenly established blood and other criteria as the major factors to the far-reaching exclusion of the achievement principle.”
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If we recognize reward according to race, ethnicity, and sex as aspects or analogues of the blood principle, it is obvious how far the achievement principle has been discarded in America today in the name of equality.

The rise in hostility to inequalities of status or condition seems a very peculiar phenomenon. It is easy enough to understand dislike of inequalities in legal and political rights. Equality in those respects is a guard against tyranny and irrationality, which is a form of tyranny. A statute or judicial decision providing that left-handed drunk drivers must be imprisoned but right-handed ones will merely be fined would violate equality because the distinction bears no conceivable relationship to the purpose of the law. When the distinction is rational…for example, between drunk and sober
drivers, the inequality of legal consequences is considered just. A perception of this sort was the original basis for the civil rights laws. Once it was agreed that the sex or race of a job applicant had no rational relationship to job performance, non-discrimination was thought a proper goal for the law to pursue. It is true that the discrimination was not the command of government but the choice of individuals and private organizations. But it was believed to be so widespread as to have almost the force of law.

What is harder to understand is the radical egalitarian notion that equality must be imposed even when very rational distinctions militate against it. That notion caused the prompt skewing of the non-discrimination laws by the bureaucrats and courts into whose care the implementation of the policy was given. Nondiscrimination became discrimination, but against different people: white males. The new discrimination did not violate the tenets of radical egalitarianism, because modern liberals, who control these policies, do not think in terms of individuals but in terms of groups. Thus, proportional representation of groups in the workplace, on faculties, and in student bodies looks like non-discrimination to them. That is the rationale for affirmative action.

The passion for equality is especially virulent among intellectuals, or at least academics, two groups that are by no means identical. Though the theme of equality runs everywhere in the writings and teachings of professors of law, sociology, political science, history, the humanities, etc., the most celebrated and influential work is that of John Rawls.
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For many years, Rawls has worked assiduously and with high intelligence to develop the principles of a just social order. Yet because he was determined to establish equality as one fundamental requirement, the results are most unhappy. One of the principles he develops is that, to be just, social and economic inequalities must “be to the greatest benefit of the least advantaged members of society.”
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He does not consider the enormous bureaucratic despotism that would be required to enforce that principle (or, rather, to attempt its enforcement, since the requirement is clearly unadministrable).

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