I have a million dollars and you don't. Are we really "equal under the law?"

This question seems focused around whether folks have equal rights when they have different resources. And yes of course in practice the haves and have-nots are not really equal “under the law” or in many other contexts. Some examples:

1. Your million dollars can buy you an excellent lawyer, whereas my lack thereof may mean I must rely on an overworked and underpaid pubic defender. Any reasonable and observant person knows that many innocent poor people go to jail simply because they do not have a competent defense, whereas many rich people avoid court judgements altogether because they have excellent and expensive attorneys. In addition, due to how cash bail laws work in reality in the U.S., a poor person is often not able to post cash bail, and thus loses their job because they remain absent from work (and then their housing after that, etc.) before they have even gone to trial. In essence, then, a poor person is often punished as “guilty” with pretrial incarceration, where a rich person is not. That is certainly not “equality under the law.”

2. If circumstances beyond my control (natural disasters, pandemics, economic downturns, a physical disability, a sudden illness, etc.) cause me to lose my job and become homeless, my choices will be very limited if I don’t have someone to advocate for me or help me with my situation. Statistically, I am very likely to remain homeless, jobless and/or sick. You, on the other hand, can much more easily relocate, stay in a hotel, buy a new home outright, get the healthcare you need, and so on. You have a much greater probability of recovering or adapting — much more easily than me. But the point is that “under the law” we may appear to have equal opportunity to rent or own a home, or be protected in some way from further calamity, yet in reality we really don’t.

3. If you start a family and end up with a special needs child, that million dollars will come in very handy in assisting your child with special education, custom equipment, therapies, and so on, so that they may actually be able to become functional and independent over time. If my family suffers the same challenges, the likelihood that my child will gain the same level of independence and function is (statistically and realistically) much lower. Once again, “under the law” both of our children may have a right to equal levels of education or healthcare…but in reality your child will effectively have “more rights.”

I could go on, but these examples will hopefully shed light on the reality that a paucity of personal resources has very clear negative impacts on personal liberty, and an abundance of personal resources has very clear positive impacts, even under laws designed to treat them equally. To believe otherwise is the result of either ignorance of the realities of being poor, or ideological convictions that also have no basis in fact.

My 2 cents.

Question from John Anderson:

I am decidedly in the “poor person” category. I have also been on the losing end of a court case against a wealthy person. I am not blind to the advantage of having wealth, especially as it applies to the ability to hire better lawyers. That doesn’t change my view on the nature of my equality under the law with that person. I had as much right as he did to hire better lawyers even if I hadn’t the ability. The fact I could not afford to do so is not proof of a lack of the right to do so. Both he and I had to make our case before the judge. The very fact that we both did so is in fact proof (in my mind, anyway) that we were both equal under the law. I was not barred from appearing before the judge to argue my case. There was no assumption of guilt for me, nor prohibition against making whatever arguments I could to defend my position. And of course, like everyone who goes before the judge, I thought my position just and his unjust, and felt wronged by the judge’s decision. I also admit that the other man felt every bit as justified in his position as I did, and was gratified that the judge ruled with him. Our sense of justice is often subjective.

I can’t afford to purchase a new house on the beach, but I have the right to do so. No law forbids me from doing so or permits only those with a certain level of wealth to do so. I can’t act well enough to be the next Batman, but I have the right to do so. No law forbids me or allows only actors of a certain ability. I can’t run fast enough, catch well enough, etc. to play in the upcoming Superbowl, but I have the right to do so. No law forbids me from doing so or permits only those with a minimum physique, etc. If I wanted to, I could take acting lessons, I could hit the gym, I could invest wisely, and gain the skills to be the next Batman, or the muscle to be the Superbowl MVP, or the wealth to buy that beach house. There is no law that forbids from doing any of those -I am limited only by my current bank accounts, skills, fitness.

Wealth, like skill, good looks, physical strength and intelligence, conveys advantages or privileges, not rights. Beauty, physical stature and abilities, natural intelligence, aptitude and ingenuity, are all often inherited from our parents. Why shouldn’t wealth be, if they have it to give? Who has the right to decide how to dispose of their wealth?


You argue your point very well! And I do appreciate the distinction between “ability” and “availability” that you are making. If rights are only meant to convey equivalent “availability” rather than equivalent “ability,” then my side of this argument has no merit.

Except protected rights ARE also meant to convey equivalent ability, and not just the same availability. We are not talking about sports, or fame, or in fact the earning of wealth itself — all of which could fairly fall within the “ability” framework of your argument. We are instead talking about equality under the law, which has always expressly implied more than just equal “availability.” Some examples:

1. If I can’t afford an attorney, one will be appointed on my behalf. Why? Using your argument, I should be able to bone up on the law and defend myself, or take out a loan against my house to hire a good attorney, etc. Right? Except that’s not a realistic expectation, and so public defenders have been part of proposed equal ABILITY of an adequate self-defense. These attorneys would not exist if equivalent ability was not part of the equation of equal justice.

2. In the same way, a variety of special protections exist under the law for the disabled, children, the elderly, and so forth. Why? If these individuals are expected to somehow rise to the occasion when given the same “availability” of their protected rights — regardless of their objective abilities (or lack thereof) — why should they receive any special treatment at all? Because part of equal rights under the law is to attempt (successfully or not) to level the playing field with respect to one’s ability to execute or achieve those rights.

3. In an admittedly extreme extension of logic, if I am accused of vehicular homicide but subsequently end up in a coma from a brain aneurysm, according to your reasoning I should be tried in absentia for my crimes. It’s not the court’s fault (or the victim’s family’s fault, or society’s fault) that I can’t stand trial. Justice must be served. Except, as I’m sure you would agree, I must be “competent to stand trial” before that trial can proceed. Ergo: I must have adequate “ability” to answer for my alleged crime.

So, to put a very fine point on it, in any court of law, if my advantage in ability is extraordinary, and my opponent has profound deficits in their ability, there is not going to be anything close to “equality under the law” unless a judge makes special provisions on my opponent’s behalf, or both parties are forced into one of many leveling processes (such as mitigation, expedited jury trials, etc.). This is a well-known problem with many imperfect solutions. And, unfortunately, a hefty wallet can almost always find ways around these leveling approaches.

In reality, corporate officers of corporations who have knowingly killed tens of thousands of people through deliberate malfeasance (tobacco, pharmaceutical, and petrochemical industries for example) have never been held accountable for their genocidal profit campaigns. But innocent people who can’t afford a good defense have ended up on death row with alarming frequency. So anyone sincerely concerned with justice must ask: “Why is this so?”

Well…it’s for precisely the same reason that the wealthiest corporations often pay little to no taxes: they can afford the expertise to skirt “equality under tax law” and tilt the scales in their favor.

I hope this clarifies things a bit.

Can many of the arguments that are used to justify living constitutionalism also be used to justify overruling explicit constitutional text?

That would be a difficult leap, because if there is agreement on “explicit” meaning, then Article V would have to be invoked to change it, and a “living constitutionalist” approach would not apply. If the meaning is unclear — subject to evolving interpretation — then judicial history has also already been “explicit” about how a given issue should be handled (stare decisis). So this begs the question: what is the reason for departure in either case? The real problem, IMO, is folks thinking they know what the Constitution “explicitly” means in instances that may actually be pretty difficult to parse (the 2nd Amendment is, unfortunately, a very good example). But all sides of the interpretation argument are projecting modern contextual and linguistic assumptions (embedded as they are in political bias) onto a 230-year-old document, whether they realize it or not — textualists/constructionists do this just as often as intentionalists, pragmatists, etc.

To address such challenges, Hegel and others promoted the idea of “historicism,” where we resist projecting our own current understanding backwards onto folks who wrote in different times, and instead rigorously explore the immediate history, culture, education, etc. of those times that influenced the writer’s thinking. This is difficult to do, but it seems to me the only way forward in terms of finding common ground about what the Constitution really meant at the time.

Unfortunately, the political pressures of today are so intense — and some judges are so profoundly influenced by them — that there is decreasing consistency about Constitutional interpretation from the bench. To date this has evidenced much more at the right-leaning end of the judicial spectrum, but it sometimes occurs with left-leaning folks as well. And when such inconsistency manifests at the level of SCOTUS, it has devastating consequences for the rule of law (i.e. it induces instability across all of society). It’s a sad state of affairs, regardless.

Lastly, I think the framers would take issue with many rulings today not because they aren’t logically consistent with a given hermeneutic, but because they depart so radically from common sense. Hence the “doctrine of absurdity” comes to the rescue (even though it shouldn’t have to).

My 2 cents.

What's wrong with a moderate level of gun regulation like waiting periods, strict and comprehensive background checks (including for gun shows) and requiring safety training? Moderate regulation may b

“What’s wrong with a moderate level of gun regulation” is that, in the United States, there are a lot of extremely irrational, fearful, self-righteous folks who allowed themselves to be hoodwinked by the firearms industry. It wasn’t until after the firearms industry realized that its military weapon sales were tanking (i.e. no more wars) that the 2nd Amendment suddenly had more to do with personal gun ownership and self-defense, and not with well-regulated militias. This was part of a deliberate propaganda campaign to deceive and mislead American consumers. If not for the desire of gun mfrs to market military style weapons to civilians, there would likely only be a few fringe extremists who believe what is now fairly mainstream among card-carrying NRA members.

And of course it’s not infringement. You need a license and training to drive a car lawfully. You need a license and training to serve food to people safely. You need a license and training to build a house for someone. You need a license and training to operate a ham radio out of the privacy of your home. All of this has to do with public safety. And for folks to say that applying what is a normal and reasonable consideration for other potentially harmful skills and privileges in society to guns is somehow unreasonable or unconstitutional…well, what can I say? It frankly boggles the mind…until you realize these folks have been spoon fed their talking points by the companies that make assault weapons.

Unfortunately, it’s not all that surprising that this has happened in the U.S. Americans are hard-wired from birth to believe false advertising…it’s just part of our commercialistic culture: we tend to believe what we are sold.

Oh…and rest assured that nearly all of the claims that “gun regulations don’t solve or stop anything” are statistically dead wrong. Just more lies to sell more guns. Lots of studies show that gun regulation has a positive impact on reducing crime stats and accidental death and homicide stats (both in the U.S. and in other countries). Again though…truth and evidence don’t matter to a lot of 2nd Amendments defenders, as they’re drunk on the Cool-Aid of “alternative facts.”

That said, here are some articles that may be of interest to reasonable, sane people who haven’t bought into the pro-gun-mfr-lobby con-job:

How the NRA Rewrote the Second Amendment

How The Gun Industry Funnels Tens Of Millions Of Dollars To The NRA

State Gun Laws That Actually Reduce Gun Deaths

States with strict gun laws have fewer firearms deaths. Here's how your state stacks up

Firearm Laws and Firearm Homicides

The Supreme Court’s Worst Decision of My Tenure (re: Columbia v. Heller)

My 2 cents.

How did New Zealand succeed in banning all military-style semiautomatic weapons 1 week after their tragedy, but the United States hasn't been able to do the same following many similar tragedies?

Well take your pick:

1. The U.S.-based firearms industry has tremendous sway over U.S. politics through aggressive and well-funded lobbying efforts, complete capture of the NRA, additional lobbying and legislative influence through the NSSF and ALEC, and a decades-long campaign of amping up irrational fear and paranoia among lawful gun owners. The U.S. would not have so many assault weapons in civilian hands had the firearms industry not used their leverage to market weapons that were — let’s not forget — illegal to manufacture in the U.S. for a decade after the Cleveland Elementary, Luby’s and California Street shootings. Why did gun makers do this? To make money of course. When military sales of the AR15 began to wane (not enough wars to increase orders!), they needed a new market. And, thanks to their ability to hoodwink the American public and influence Congress, they got one.

2. The U.S. Second Amendment is fairly unique among modern democracies, and wasn’t particularly well-written regarding the purpose of the “right to bear arms.” Was it intended to create well-regulated state militias that could, at the state level, resist a federal government’s overreach? Or was it intended to allow every citizen in the U.S. to own military weapons (by extension up to and including nuclear missiles) so that they could defend themselves from their own government’s tyranny, if required? Until very recently (Columbia v Heller, 2008), SCOTUS consistently linked gun ownership rights to militia membership. But clearer writing would have helped prevent the Second Amendment’s misuse IMO.

3. Let’s face it: a lot of Americans just aren’t that bright, don’t think about things very carefully, seem to be very gullible, and are particularly prone to the Dunning–Kruger effect. I’m not sure if it’s the prevailing U.S. diet, or the constant deluge of advertising and mindless media, or a poor education system, or something in our water…but the average U.S. citizen just can’t seem to think very critically or clearly — certainly as compared to the folks in other developed countries I have lived in. In addition, there has been a concerted effort on the Right-leaning end of the political spectrum to “dumb down” their rank-and-file even further: by demeaning academia and defunding K-12 education; by trumpeting anti-intellectual rhetoric in conservative mass media; by actively opposing science with well-funded “Science Skepticism” campaigns; and by generally dismissing evidence and facts in favor of magical thinking and logical fallacies. And this has been going on for many decades now. Just consider the election of Republican presidents Reagan, G.W. Bush and Trump. These men were verifiable idiots, and yet conservatives championed them as competent leaders. I don’t think any other developed democracy has ever fallen prey to this level of stupidity.

4. Guns are fun. As a privileged white male in the richest society on Earth, I myself believe I am entitled to playing with the toys I want to play with. Having anyone tell me I can’t play with the toys I want is disheartening, and generally leads me into a bout of cranky pouting. And yes, I do like guns — including the most powerful military versions — and have liked them all of my life. The only reason I support various gun control measures is because I believe it is necessary to sacrifice at least some of my own whims, impulses and childish toy-obsessions in order for other people to feel free and safe. That’s kind of the deal I think folks need to make for civil society to exist at all: we can’t always have everything we want…not even our favorite toys. But I guess not everyone in the U.S. shares that point of view, which means a lot of other privileged folks maintain a perpetual tantrum when it looks like some of their favorite toys might be taken away.

My 2 cents.

Why was the FCC Fairness Doctrine revoked in 1987? What have been the consequences in the 30 years since, intended and otherwise?

Thank you for the question.

Reagan’s recision of the Fairness Doctrine had huge and enduring consequences regarding news media and information delivery in the U.S.…and the action was not “inevitable” as some have suggested.

Consider the Fairness Doctrine terms “honest, equitable and balanced,” and then consider how the Fairness Doctrine applied those to “controversial matters” that were in the public’s interest to report. This is the heart of the Fairness Doctrine: to inform U.S. citizens in a balanced way regarding diverse perspectives around critical issues. The spirit of the Fairness Doctrine was to prevent biased or misleading journalism and media coverage, and to represent as many different perspectives on a given issue as possible — and especially opposing viewpoints — as fairly as possible. In essence, this was an effort to discourage propaganda in U.S. media that served private agendas. Propaganda is often, after all, simply reporting one side of a given issue.

You’ll notice that other answers so far completely leave this critical point out.

Now, why did the FCC revoke the Fairness Doctrine? The Reagan administration framed the revocation under “concerns about free speech;” in other words, that the FCC’s continued enforcement could potentially interfere with some forms of free speech in media (there was no evidence that this was the case, only that this could be a concern). Even if such concerns had been validated, this simply would have required additional legislation to refine the Fairness Doctrine from Congress — but such worries are completely and utterly contradicted by the subsequent explosion of alternative media platforms (cable TV, Internet streaming, etc.). Do you see the problem with some of the other answers now…? If the main concern about the Fairness Doctrine (from conservatives at the time) was really impingement of free speech, how could “the Fairness Doctrine being outdated” due to a plethora of alternative media platforms also be a central consideration…? This is a duplicitous ruse. We know this because there is ALSO the issue of the 1986 SCOTUS ruling that affirmed the FCC’s ability to enforce the Fairness Doctrine on teletext technology…opening the door for its application to other media platforms as well. We can even speculate that this expansion of FCC authority over newly emerging media stoked efforts by conservatives to eliminate the Fairness Doctrine completely.

Now, it is important to appreciate that Congress DID update the Fairness Doctrine, at the time of its revocation, to address some of these issues…but Reagan vetoed that legislation anyway. So, in reality, conservatives just didn’t like the way the Fairness Doctrine was being applied by the FCC, or how Fairness Doctrine cases had played out in the courts, or how it was already being applied to future information technologies. THAT is the real reason conservatives wanted it gone. Why? Well, not only did the Fairness Doctrine dampen neoliberal propaganda efforts, it also did not allow conservatives to restrict progressive opinions being broadcast on publicly funded media (like NPR/PBS) when conservatives controlled the FCC (this was decided in the 1984 SCOTUS ruling FCC v. League of Women Voters of California.) In other words: the Fairness Doctrine was useless to conservatives who wanted to promote their own agenda while suppressing progressive ideologies…and they just could not stand for that.

And what has happened since? Propaganda has taken over conservative for-profit media, and conservatives have both doggedly sought to defund publicly funded non-profit media, and to disallow the FCC to regulate ANY media with fairness in mind. For example, the latest repeal of Net Neutrality by a conservative-controlled FCC is completely consistent with such efforts — why not let corporations decide who gets access to what and when? Neoliberals simply do not want there to be “honest, equitable and balanced” coverage of controversial issues — not even if propaganda is being funded by Russia on Facebook or Twitter! They believe “the market” can and should determine all outcomes — in other words, whoever has the most money to begin with, or who can most effectively deceive and manipulate people, should determine what information is available to the public.

So…again, WHY are conservatives so concerned about the consumers and voters having access to good, balanced information? Well, we’ve seen exactly why over the intervening years since the Fairness Doctrine was revoked:

- The Oil & Gas industry doesn’t want you to know about the realities of climate change.

- The Pharmaceutical industry doesn’t want you to know how dangerous and/or ineffective their drugs actually are.

- The Tobacco industry doesn’t want you to know about the real health risks of tobacco and vaping.

- The wealthiest owner-shareholders don’t want you to know that trickle-down economics has never, ever worked — and that economic nationalism won’t ever bring certain jobs back to the U.S.A. — but that conservative economic policies instead enrich only those wealthy few.

- Evangelical Christians don’t want you to know that Planned Parenthood is a much more effective way to prevent abortions than outlawing abortions has ever been.

- The Firearms industry doesn’t wan’t you to have statistics about just how lethal their products actually are — or how rarely those weapons in the hands of ordinary citizens actually prevent crime.

- (And so on with all sorts of other vested interests: agriculture, petrochemicals, insurance, financial institutions, etc.)

You see the pattern? There is a tremendous amount of money at stake — and the underpinnings of tribal belief systems along with it. Facts, evidence and statistics almost universally undermine conservative positions…so why would conservatives EVER wan’t news and information media to really be “honest, equitable and balanced?”

So…what happened? Well, if you do some research on this you’ll see that ALL conservative news media is, in fact, not just heavily biased towards supporting untruths, they are also more prone to deliberate counterfactual reporting, sometimes even fabricating stories that support neoliberal agendas and a conservative worldview. In contrast, left-leaning media can indeed be biased, but doesn’t approach the level of deceptive misinformation and outright lies that are perpetrated by right-leaning media. And so, as with any democracy, the quality of information that a voting population has is going to determine the quality of politicians they elect, and the agendas that are moved forward in government. Which is how we’ve arrived at a Trump presidency and Republican Party that is so woefully disconnected from reality — to a degree that is clearly harmful to the well-being of citizens in the U.S. and around the globe. And this is what Reagan’s revoking the Fairness Doctrine and blocking its revision by Congress has gifted to the American people and the world.

Lastly, in addition to helping neoliberal propaganda efforts, ending the Fairness Doctrine has also helped even more nefarious efforts — such as the “active measures” of Russian intelligence — to distort public information and perception as well. It is more than a little ironic that Ronald Reagan, champion of anti-Soviet rhetoric and disruption of the Soviet Union itself, was single-handedly responsible for the ability of an ex-KGB officer, Vladimir Putin, to directly manipulate the American public today. See the link below for more on that.

In closing, here are some resources I would recommend to more thoroughly understand and navigate these issues:

L7 Neoliberalism (covers neoliberal propaganda efforts and agendas)

L7 Opposition (covers Russia’s “active measures”)

Media Bias/Fact Check - Search and Learn the Bias of News Media (great resource for checking media bias and accuracy)

My 2 cents.

Why did the Supreme Court decline to hear the case regarding the right to bear arms in public, Peruta v. California?

Thanks for the A2A. So here’s the really funny thing about this situation….

You’ve got two Constitutional originalists/textualists who wanted to proceed with these cases - Justices Gorsuch and Thomas. The assumption of pro-gun-rights folks is that, because these two Justices are hard-right-leaning, then “obviously” they would uphold District of Columbia v. Heller’s distinction that the 2nd Amendment need not apply strictly or exclusively to militia (which contradicted U.S. v. Miller and some 70 years of stare decisis), and perhaps expand upon it. Which is actually a really, really funny assumption, because that is what the U.S. Constitution says the “right to keep and bear arms” is for: a well-regulated militia. That was indisputable - both in a historical context and in any reasonable originalist or textualist reading of the 2nd Amendment…until Heller in 2008. And yet…well, there’s the rub…because really Gorsuch and Thomas are what we would call “fair-weather” originalists/textualists, in that they mainly apply that standard when it suits their conservative ideological bias, just as happened in Heller. In the current instance, however, authentic textualism/originalism clearly would NOT serve gun advocates.

In any case…aside from this rather humorous irony, I suspect the main reason SCOTUS sidestepped this issue is because it would be inherently “activist” to issue a ruling on these laws that potentially could spawn a reinterpretation of every gun restriction on the books around the U.S. - and years of litigation along with that. Again, though…judicial activism is SUPPOSED to be something that conservatives dislike. And yet…not in this instance. :-0

So basically, it was a reasonable and sound decision to avoid a de facto rewriting of established law, while also avoiding exposure of an underlying hypocrisy among right-leaning judiciary and citizens in the U.S. It’s really a win-win for everyone involved.

But of course hypocrites understandably tend not to see it that way. :-)

My 2 cents.

Comment from Andrew Mateskon: "Take a look at the hilarity of the most famous textualist, Scalia, in Green v. Bock Laundry. Suddenly, the written word as known by the authors doesn't matter, but the context and surrounding law does."


Well at least he’s being partly intellectually honest in admitting that strict textualism “produces an absurd, and perhaps unconstitutional, result.” LOL. But to then invent his own arbitrary “benign fiction” for what the word “defendant” really meant in 609(a) is of course equally absurd. It seems textualism is a bit like the literalism of religious fundamentalists: “Since this is what we want the text to mean, this is what it literally means. Then we need not have any doubts.”

Comment from Matthew Moore: "Actually read DC vs Heller. You will be enlightened. The individual (non-militia) view is based on the 14th Amendment and the speeches and writings of it’s authors and ratifiers."


Oh I’m pretty familiar with it. The point is that Scalia’s majority decision is not remotely justifiable purely on a textualist basis. Instead, it’s a fishing expedition for a particular ideological reading outside of the actual text itself. It’s the epitome of hypocrisy in that regard. I’m not saying the favorable arguments don’t have merit…that is a different discussion… I am saying that they just don’t have textualist merit, not by any stretch of the imagination. That is what I mean by “fair-weather” textualism/originalism.