On
Legal Equality and Class Inequality
July
4, 2025
Hannah Arendt is one of the great political thinkers of the
twentieth century. She coined the term “totalitarianism,” and her book, The
Origins of Totalitarianism, is one of the most important books of that
late, unlamented century. Early in the book she is discussing what she presents
as the creation essentially of a new kind of antisemitism in the late
eighteenth and the nineteenth centuries. We needn’t go much into that
discussion here, but on page 18, at least page 18 of the Kindle edition I’m
reading, of The Origins of Totalitarianism, discussing developments in
those centuries, Arendt writes: “The fundamental contradiction between a
political body based on equality before the law and a society based on the
inequality of the class system prevented the development of functioning
republics….” Her contention is that while the new nation states of that period
of history made everyone equal before the law, in reality there was still a
class system in those states that contradicted the equality the law posited.
The tension between the equality of all in the legal systems and the inequality
in society and the economy in those states prevented them from functioning in
the way theory said they should function.
Now, despite my having a PhD in nineteenth century Russian
history, I’m not much interested in late eighteenth and nineteenth century
Europe here. But as Arendt does so often in this book, which was written
seventy-five years ago, this statement caused me to ask as soon as I read it:
Is the tension between the equality before the law that the US Constitution
posits and the socioeconomic realities of American life part of the dynamic
that today threatens to destroy the American republic that has been functioning
for well over two hundred years? I think that it may well be doing precisely
that. At least I’m sure that the question of whether it is or not is worth some
serious consideration.
The first question we must ask is: Does American law
establish the equality of all persons before the law? The answer, in theory at
least, is yes. Two amendments to the US constitution contain provisions that
establish this legal principle. In the Fifth Amendment we read: “nor shall any
person be deprived of life, liberty, or property without due process of law….”
This amendment requires the federal government, though not the states, to treat
all persons as equal before the law by giving everyone due process. The
Fourteenth Amendment, which applies to the states but not to the federal
government, is more specific. It reads in relevant part: “Nr State shall…deprive
any person of life, liberty, or property without due process of law; nor deny
to any person within its jurisdiction the equal protection of the law.” These
two amendments establish the principle of equality before the law in both
federal and state law.
Neither of them uses the phrase “equality before the law,”
but it is easy enough to see how they establish that principle more or less
directly. One of the key phrases in both of them is “any person.” Not “any
citizen.” Not “any legal resident.” Not “Any person except people not here
legally. It says: “Any person.” Since all legal rights pertain only
to persons, the provisions of these two amendments apply to everyone. The
amendments make no exceptions. Any person, that is, any human being, present
within the jurisdiction of any state or of the United States is guaranteed
equality before the law either directly or indirectly. There is of course an
enormous body of court decisions interpreting these provisions, but none of
that law does or could completely disregard the principle of equality before
the law.[1]
There is one tragic caveat we must insert here. On July 1,
2024, the US Supreme Court issued a 6-3 decision in the case of Trump vs.
The United States. That case, against all valid legal logic, establishes that
there is a constitutional basis for the president having immunity from criminal
indictment or prosecution for criminal acts that relate to “core” or “exclusive”
presidential powers. The case doesn’t tell us just what those powers are. This
deplorable case also gives the president “at least” presumptive immunity for
all other official acts, but no immunity for “unofficial” acts.[2]
What are we to make of this indefensible decision of our
Supreme Court? It does not completely negate equality before the law for the
president. The president remains criminally liable for “unofficial” acts while in
office. The case doesn’t tell us what “unofficial” acts are, but, whatever they
are, the president can still be criminally prosecuted for crimes committed that
relate to them. The case does, however, eliminate the principle of equality
before the law for certain criminal acts a president may commit while in
office. Though the court’s decision is indeed legally indefensible to the
extent that it gives the president a legal privilege that the US constitution
does not provide and that no other person has, one that violates a foundational
principle of American law, it does at least retain a small remnant of that
legal principle as applying to the president while in office. Despite Trump
v. United States, we can conclude that equality before the law remains part
of the bedrock of American law.[3]
The next question we must ask is whether or not there is
socioeconomic inequality in this country. The answer to that question is so
obvious that it hardly needs mentioning. There is indeed extreme socioeconomic
inequality in the United States. Despite the country’s persistent claim that
all Americans are equal, all Americans are not and never have been socially or
economically equal. We have always been a country socially and economically
organized on the basis of class, and we still are. One recent analysis has it
that the top 0,1% of the population controls as much wealth as the bottom 90%.
The top 0.01 percent of the population controls 11.2% of the country’s total
wealth.[4]
And of course, within the 90% percent of the population, there is income
inequality too. We all know that there is an upper middle class and a lower
middle class, and they don’t all have the same amount of money or assets. Economic
inequality between classes is and always has been the norm in the United
States.
There are other inequalities as well. Two of the most
glaring are racial inequality and gender inequality. Racism has been part of
our country’s culture from the country’s very beginning. White Europeans
brought the first kidnapped Africans as slaves to what became the United States
in 1619. The economies of southern states were grounded in and depended on
racial slavery until 1865, but racism was rampant in the north and the west as
well. The south held so firmly to race-based slavery that it took a civil war
that still is the deadliest war in the country’s history to eliminate it.
Ending slavery did not, of course, end American racism. In
my experience, few white Americans are aware of the extent to which racism has
rotted American culture since the Civil War. Throughout the nineteenth and into
the twentieth century racial caricatures of Black people were the norm in
American popular literature. Jim Crow laws preserved racial discrimination in
the south up to the 1960s, and there was de facto if not de jure Jim Crow in
the north and the west too. For example, first the territory of Oregon, then
the state of Oregon, passed laws prohibiting Blacks from settling in the state
in 1844, 1849, 1857, and 1926.[5]
With very few exceptions, Blacks have been able to get only low paying, menial,
overly physically demanding, and/or dangerous jobs until at least very recently
in our history. Racial discrimination still prevails in our job markets and
even more so in our judicial systems.
There has also been gender inequality throughout American
history. For much of that history, our culture demanded that women were to be
only wives and mothers and not to work outside the home. Now, there is nothing
wrong, of course, with being a wife and a mother. Both can be a great blessing
for a woman who is a wife and/or a mother.[6]
The problem in American culture has been that these were the only roles deemed
appropriate for women. Yes, for most of our history women could be school
teachers and, at least since the Civil War, nurses. Teaching and serving as a
nurse are two noble professions to be sure, but, once again, the problem in
American culture has been that it has long attempted to limit women to those
two and perhaps a very few other professions.
Then there is the right to vote. From the beginnings of our
country women did not have the right to vote. Only men could vote. Slaves never
had the right to vote, and under Jim Crow, as a practical matter, only white
men could safely vote in the south at least after Reconstruction ended in 1877.
This unconscionable gender discrimination began to change shortly after the Civil
War. Wyoming extended the right to vote and hold public office to women in 1869,
the first state to do so.[7]
Some but far from all states followed suit. It was not until 1920, however,
that the 19th Amendment to the US Constitution extended the right to
vote to women nationwide.
There is no doubt that, while equality before the law
(except to a certain extent for the president) remains an essential principle
of American law, there has been great social, economic, racial, gender, and
other discrimination throughout our history. We have made some progress in
overcoming that discrimination, but we haven’t made nearly enough of such
progress. Social, economic racial, gender, and other tensions continue to be
the rule among us.
OK. So we meet Arendt’s two criteria for inequality
impairing the functioning of states, but we have ask: Does it make a difference
to the functioning of our country’s political entities? The answer is a
qualified yes. There is one demographic distinction that is playing an enormous
role in American politics today. Throughout American history, white men have
been our most privileged class of people. Not all white men have been wealthy.
Not all white men have been economically or politically powerful. Yet it
remains true that white men as a class have been the most privileged broad
group of Americans from the country’s earliest days. Yes, wealthy white men
have been more privileged than middle class or poor white men, but all white
men have been privileged over women and racial minorities.
Lyndon Johnson is at least supposed to have put it this way when
discussing how white men have viewed themselves as privileged over people of
color. Using old language we wouldn’t use today (”colored man”), he said: “If
you can convince the lowest white man he’s better than the best colored man, he
won’t notice you’re picking his pocket. Hell, give him somebody to look down
on, and he’ll empty his pockets for you.”
America’s political history since at least the 1960s proves
Johnson’s point. At least since the first Nixon presidential electoral victory
in 1968, millions upon millions of Americans have consistently voted against
their own best interest. They have sent extremely conservative politicians to
Congress. They have turned their state governments deep red. They have, in
other words, voted for politicians who cared not one whit about them but acted
instead in the interest of the wealthy and the big corporations?[8]
The reasons for this tragic shift may be complex, but they
all add up to a reality that white American men were feeling even if they
couldn’t articulate it. The unjust status quo that privileged white man over
all others began to change in quite recent times. In the civil rights movement,
Black Americans and their white and other allies rose up against American
racial discrimination. In the women’s movement, women and their male and other
allies rose up against American gender discrimination. Black Americans have
begun to play a much larger and more public role in American life than they
ever had before. We even elected a Black president in 2008 and reelected him in
2012.
Women have become more prominent in American life too. We
haven’t elected a woman president yet; but we’ve had a woman vice president,
and two of our Secretaries of State have been women as have numerous other
cabinet officers and members of Congress (though members of Congress are still
disproportionately men). Blacks and women have served at every level of state
government and have led large corporations and elite universities. Things are
indeed changing.
Millions upon millions of white American men feel threatened
by these changes. Threatened, that is, with the loss of the privilege they have
had until very recently. They fear losing their privilege to Black Americans,
that is, people they have always looked down on and even hated. They fear
losing their privilege to women, that is, other people they have always looked
down on and over whom they have exercised significant control.
And they are responding against their own interest. They are
responding in significant part by electing Donald Trump president not once but
twice, the second time after he had already been convicted of 34 felonies. They
vote for Trump. They wear his red MAGA hats. They go to his rallies. They cheer
at his racism. They cheer at his misogyny. They cheer at his xenophobia. They
buy his lie that the country’s problems, which are in any event nowhere near as
bad as Trump claims, are all the fault of immigrants. They cheer as Trump uses
immigrants in exactly the same way as Hitler used the Jews. As I write on July
4, 2025, a great many of them are cheering the passage of Trump’s “Big
Beautiful Bill” that is a body blow to the public welfare but which benefits
the very wealthy, the very wealthy being the only people Trump cares about
other than himself if indeed he even really cares about them at all.
America’s political culture is split as it has rarely been
split before. We talk about red states as predominantly Republican and blue
states as predominantly Democratic as if the states were politically monolithic.
Conservative or even reactionary leaders, including supposedly Christian
preachers, have convinced a hoard of people that “liberals” are “socialists”
and that socialism is a very bad thing, never mind that socialist policies
would benefit most of Trump’s voters. MAGA people won’t listen to people with
brains and a conscience, and we on the left just can’t understand how anyone
could vote MAGA. We consider those who do to be ignorant, stupid, and/or bigoted.[9]
We can’t talk to each other. We don’t understand each other. To a considerable
extent, we don’t want to have anything to do with each another.
That divide is a consequence of social and economic
inequalities that contradict the notion of the equal protection of the law for
all persons. MAGA zealots see equal treatment of minorities, women, and those
of other gender identities as discrimination against them. They see enforcement
of the separation of church and state as an attack on them and their religion.
All of which flows from the country’s changing demographics and white American
men’s loss of privilege.
I was going to say that the rift in American politics hasn’t
turned violent yet, but that’s not quite true. At the end of his first term as
president, Trump unleashed a rabid, violent mob on the US Capitol in an attempt
to stop it from doing its constitutional job of certifying Joe Biden as
president. They violently assaulted police officers who were just doing their
duty. Someone once took a shot at Trump but did little or no harm. A MAGA
zealot recently shot at two Minnesota state legislators and their spouses,
killing both the woman and the man in one of those couples. We have more armed,
disordered people in so-called militias than we have ever had before. Some of
them speak of a civil war to rid the country of liberals.
Will the political split in this country that results from
social and economic inequalities lead to a new civil war? I pray not, but I
have no way of stopping Trump’s armed followers. And, frankly, I wish my home
state of Washington and the state in which I grew up, Oregon, could secede from
the union so that the red states couldn’t influence my life and the lives there
as much as they can now, not that I would fight a war to make that happen. I
am, after all, a Christian and an adherent to Jesus’ teaching of nonviolence. Yet
I have to wonder: What will happen at the end of Trump’s current term as
president? He clearly wants to be president for life, and he doesn’t give a
damn that the constitution limits him to two terms. Will his followers turn
even more violent this time than they did last time in a criminal attempt to
keep him in office?[10]
There is no way to know, but the possibility surely exists. How would the US
military react to such a violent attempt to keep Trump in power? I hope and
pray that they would follow the law, but our military is riddled with MAGA
zealots posing as patriotic Americans. At least some of them might well join an
armed rebellion and bring their military training and weapons with them.
I don’t know what the future holds. I just know that Hannah
Arendt was right when she pointed to social and economic inequality as a cause
of major problems for any republic. When, right after the constitutional
convention, someone asked Benjamin Franklin what sort of government they had created
he said: “A republic, if you can keep it.” Our republic, the one Franklin and
other national founders created, is under attack by fearful forces who would
take authoritarian rule over democracy as long as the authoritarian in charge
were Donald Trump. Let us pray that reason may yet prevail, and we will, as
Franklin said, keep our republic.
[1]
The Dred Scott decision of 1857 and Plessy v. Ferguson of 1896 are dreadful
exceptions to this statement.
[2] https://www.congress.gov/crs_external_products/LSB/PDF/LSB11194/LSB11194.2.pdf
[3]
Most if not all state constitutions also establish equality before the law for
people present within the state.
[4] https://www.csmonitor.com/USA/USA-Update/2014/1110/Economic-inequality-in-the-US-reaches-levels-not-seen-since-Great-Depression
[5] https://en.wikipedia.org/wiki/Oregon_black_exclusion_laws
[6]
That being a wife and/or a mother is not always a blessing for all women does
not change the truth of this statement.
[7] https://en.wikipedia.org/wiki/Women%27s_suffrage_in_Wyoming
[8]In
a book published in 2004, political analyst and historian Thomas Frank examined
this phenomenon in his home state. What’s the Matter With Kansas, How
Conservatives Won the Heart of America (Metropolitan Books, 2004),
[9] We’ve
got that one correct, but never mind.
[10]
Of course, Trump is almost exactly the same age as I am, that is, 78 as I
write. Neither of us may live to the next presidential election, though I hope
that at least I do.
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