The past two summers, I taught Latter-day Saint law students about equal justice during an annual conference focused on the divinely inspired aspects of the U.S. Constitution identified by President Dallin H. Oaks.
These bright young students were highly engaged. We had fruitful discussions about the concept of equal justice in the abstract, as well as its potential applications to modern issues in law. In those discussions, a recurring problem arose: What, if anything, does equal justice demand once rights protections are in place? Is it enough that government refrain from infringing rights, or does the pursuit of equal justice call for citizens to defend and facilitate the rights of others as well?
These questions lie at the intersection of the Constitution and the Declaration of Independence. What follows is a brief exploration of these questions. Considering the Constitution in light of the Declaration of Independence, these documents suggest that equal justice might involve more than formal legal equality. It requires not only the protection of rights through the rule of law, but also a continuing commitment to the conditions that make liberty genuinely available to all.
A Divinely Inspired Constitution
In his April 2021 general conference address, Oaks identified at least five “divinely inspired principles” in the Constitution. Two of these principles are strongly tied to equal justice. One is the “vital guarantees of individual rights and specific limits on government authority in the Bill of Rights.” Another is that “We are to be governed by law and not by individuals, and our loyalty is to the Constitution and its principles and processes, not to any office holder. In this way, all persons are to be equal before the law.” This principle can be summarized as the rule of law.
A few months later, Oaks published an article in the Deseret News in which he noted that “America has been blessed by an inspired Constitution that aims at equal justice and the advancement of all on the basis of merit.” He then followed this statement with a reiteration of the five divinely inspired principles from his talk, including the two previously mentioned (protection of individual rights and the rule of law).
Oaks’s Deseret News article suggests that the Constitution contains additional divinely inspired principles beyond those he expressly identified. It also confirms that justice is a central theme in the Constitution’s divinely inspired nature. This might be deduced from careful consideration of equal justice’s relation to the earlier stated principles of protection of individual rights and the rule of law. The protection of each person’s rights and the equal application of the law are at the forefront of the Constitution’s aims. Together, these principles aspire to justice for all.
The Connection Between the Constitution and the Declaration
Oaks’s article also brings into consideration the Declaration of Independence. He mentions the Declaration and the “lofty principles” it espoused before expounding on equal justice.
Suppose the Constitution rests on a theory of justice grounded in natural rights. Although contested, this view is at least plausible given the context of the Constitution’s adoption.
We are now coming up on the 250th anniversary of the Declaration of Independence. As I have argued elsewhere, the Declaration defends the legitimacy of the colonists’ separation from the Crown based on a claim to natural rights and human equality. The claim, at its most essential, is that all human beings are created equal in that they have certain inalienable natural rights, among them being life, liberty, and the pursuit of happiness. Government, the Declaration argues, is not legitimate unless it acknowledges and preserves these basic truths and protects these rights.
The Declaration connects to the Constitution on this point. The Constitution was drafted, at least in part, to secure liberty and establish institutions capable of protecting natural rights. This is evident in its Preamble, which states that its aims are to, among other things, “establish Justice . . . promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.”
Bringing these claims full circle to Oaks’s divinely inspired principles, it would make sense that they include “vital guarantees of individual rights” and governance by the rule of law such that “all persons are to be equal before the law.” The core of the Declaration’s bold claim of human equality and inalienable rights is central to what animates the inspired aspects of the Constitution.
Seeking Equal Justice
If we consider equal justice as an inspired principle, what does this add to Oaks’s previously established list of principles? It reinforces the notion that the Constitution protects the rights of all persons on an equal basis, thereby guaranteeing human equality. Equal justice, then, can be understood as the union of rights protection and the rule of law.
Notably, the combined words “equal justice” do not appear anywhere in the Constitution. In one sense, this is of little concern. There are ample rights-protecting provisions enumerated in the document. And with the adoption of the Reconstruction Amendments, which “completed” the Constitution’s commitment to equal justice, it is clear that, at least as a matter of law, all are to be protected equally before the law and all citizens are guaranteed protection in their rights.
In another sense, there remains a deep, ongoing ambiguity in the law. Though discernible in the text, equal justice remains notoriously difficult to apply in the broader scheme of American governance.
Take this example from Oaks’s article. He recounted a story of his law firm declining to hire a young lawyer merely because the lawyer was Jewish. After Oaks and his colleague protested, the young attorney was hired and went on to become a managing partner. From this example, it is clear that Oaks had in mind, at a minimum, the idea that equal justice allows all to participate equally in civil life and proceed—whether they rise or fall—based on merit alone. (As noted below, equal justice was not compelled by law in this instance, yet the principle was operative nonetheless.)
In theory, equal justice seems straightforward. Whoever performs best ought to receive the best rewards. (For the moment we will bracket the question of who decides and by what metric.) The idea is that those who are naturally more talented or who work harder will simply rise to the top. After all, the Declaration’s—and, by extension, the Constitution’s—promise is that all will receive the blessings of liberty so long as they are governed by law and their rights are protected.
But practical reality very soon gets in the way. Often in this nation’s past, those promises went not only unfulfilled but were actively frustrated, particularly for this nation’s black population. From slavery to Jim Crow, rights were perpetually violated and equal justice was a sham. The sort of rights deprivation that took place was certainly more than enough to justify revolution, at least by the Declaration’s standards.
Eventually, these wrongs were removed through the Reconstruction Amendments and later civil rights legislation. But were the wrongs ever fully remedied? Was there proper restitution? There remained the practical reality that a certain segment of the population had been deprived of every right imaginable and now had to find their way in America. The ever-present question, then, is whether the Constitution’s conception of justice would be sufficient to guarantee basic human equality.
The Reconstruction Amendments guaranteed equal protection of rights. They did not necessarily guarantee equal access to the conditions required to exercise those rights. If generations of injustice deprived some citizens of property, education, or opportunity, would the mere cessation of discrimination be sufficient to secure the Constitution’s promise of equal justice? Or does equal justice require more than noninterference? Or, alternatively, does the Constitution merely settle for the idea that, moving forward, rights would not be infringed? Is that equal justice?
Perhaps the answer lies in some other divinely inspired principle, as Oaks left open the possibility that there were others not listed. And, of course, even the ones identified are not self-executing. Are mercy, grace, or restitution divinely inspired principles conceivably within the bounds of the Constitution?
Oaks and his colleague did not need to stand up for the young Jewish lawyer; nothing in the Constitution required it. After all, equal justice does not demand that an individual be able to force another to employ him or her. But this shows the gravity of Oaks’s actions. He acted even though the law imposed no obligation to do so. He saw that justice required the firm to adhere to a higher principle in its hiring practices. This might suggest that maintaining equal justice is more than simply refraining from violating the rights of others. It might include actively ensuring that fellow citizens are treated with equal dignity and respect, as Oaks did in his example.
It is beyond the scope of this essay to delineate a carefully orchestrated political program to achieve equal justice in our political moment. But if equal justice means the protection of natural rights through the rule of law for the end of securing the blessings of liberty, there is much more that must be done than apathetically standing on the sidelines. Oaks provided one vision of that end as “the advancement of all on the basis of merit.”
Whatever it might look like, it will require active assessment of our moment and whether equal justice demands more. It will take careful analysis and prudent action to determine whether prior rights deprivations have been remedied or whether current rights deprivations appear as the same old snake but in new skin. This nation has come a long way in seeking equal justice for all, and there is surely more that can and ought to be done. But the pursuit is just as critical as the end. If we diligently seek to realize the Constitution’s promise of equal justice, the Declaration can continue to serve as a standard for American self-government for the next 250 years.
