Building Better than Students for Fair Admissions

The Supreme Court’s decision and opinions in Students for Fair Admissions (2023) got me thinking hard again about questions of basic human equality that I first explored (with Jack Coons) back in By Nature Equal: The Anatomy of a Western Insight (Princeton Univ. Press, 1999).  The result is a new paper, A Constitution for Equals? Building Better than Students for Fair Admissions, which is now available here.  What I have come to understand is the extent to which Enlightenment political philosophers’ claims about our being (in Jeremy Waldron’s phrase) “one another’s equals” were custom-made to fit the lowered purposes of modern political ordering.  Aiming to build better, the paper begins by working dialectically through the contributions of Hobbes, Locke, Montesquieu, the Declaration of Independence, Tocqueville, Lincoln, Harry Jaffa, Michael Zuckert, Anne Phillips, and many others in order to show that human equality properly understood is not, as Harvey Mansfield has warned, a dangerous “half truth.”  Properly understood, basic human equality is, rather, a higher truth — a higher truth that does not require us to be blind to the lesser facts of our important differences and diversity that have their own social purposes in God’s providence.  That higher truth, as Tocqueville saw, is that we are equals because we are all created in the image and likeness of God.  

The aim of the latter portion of my paper is to reground our written Constitution in our unwritten constitution’s commitment to the higher truth of  Christian understanding of our basic human equality amid our important differences.  This effort in regrounding is assisted by the work of Orestes Brownson as well as more recent work by Wilson Carey McWilliams, Peter Lawler, Richard Reinsch, and others.  By reclaiming for our written Constitution a premodern understanding of basic human equality already lodged in our unwritten constitution, we will be better able to solve some of the problems presented in a case like Students for Fair Admissions.  Specifically, questions about university admissions will be answered on the basis of doing justice among human equals who may have very different relevant capacities and, therefore, on the basis of an applicant’s capacity to contribute to the common good of the university community — not on the basis of race.