[nfbmi-talk] Pros and Cons of Preferential Treatment

Larry Posont president.nfb.mi at gmail.com
Wed Mar 17 07:41:13 UTC 2010


fred are you still up from larry
----- Original Message ----- 
From: "Fred Wurtzel" <f.wurtzel at comcast.net>
To: "'NFB of Michigan List'" <nfbmi-talk at nfbnet.org>
Sent: Tuesday, March 16, 2010 5:10 PM
Subject: [nfbmi-talk] Pros and Cons of Preferential Treatment


> Here is the Dr. ten Broek article.
>
> wWarmest Regards,
>
> Fred
>  _____
>
>
> )
>
> PROS AND CONS OF PREFERENTIAL TREATMENT OF BLIND PERSONS
>
> Address by Professor Jacobus tenBroek
>
> AAWB Convention, Quebec, June 19, 1955
>
>     The topic of this discussion immediately suggests the ambivalence, if
> not the
>
> outright hostility, aroused in most of us by the idea of preferential
> treatment.
>
> If it implies unwarranted favors and advantages, as it sometimes seems to,
> how is
>
> such treatment to be justified with reference to the blind, or, for that
> matter,
>
> with reference to any group? If the blind are normal, as they claim, why 
> do
> they
>
> need to be treated differently? If their objective is really social 
> equality
> and
>
> integration, is it not true that preferential treatment serves to 
> perpetuate
> special
>
> status, with all its connotations of inequality and inferiority? Is there
> anything
>
> about the problems of the blind or of blindness which makes necessary or
> desirable
>
> some form of preferential treatment? "Any class," wrote one blind man,
> "which demands
>
> special privileges soon finds itself a dependent class" and "the blind of
> America
>
> have developed a progressive disease--that of dependency."
>
>     We espouse the principle, wrote another blind man, "that the blind are
> normal
>
> and competent people, capable of making their own way, on a basis of
> equality." Yet
>
> at the same time, we ask "special concessions and privileges on the basis
> that we
>
> are helpless and unequal." "We cannot have our cake and eat it too and 
> such
> measures
>
> and propaganda stressing the inequality of the blind are bound to have a
> most damaging
>
> effect upon our primary goal of equality."
>
>     Let us begin our analysis of the pros and cons of preferential
> treatment of
>
> the blind at the beginning, that is, by defining the terms used.
>
>     Preferential treatment of the blind is treatment which singles out the
> blind
>
> for special favors, advantages, or benefits. In short, it is any special
> treatment.
>
> Preferential treatment may be based on an irrational whim, prejudice, or
> taste--as
>
> when one prefers strawberries instead of blueberries, or as when it is 
> said
> "gentlemen
>
> prefer blondes." On the other hand, preferential or special treatment may 
> be
> based
>
> on the possession by the group receiving it of some distinctive talents or
> unique
>
> qualities or peculiar needs having a relationship to a proper public 
> policy
> or socially
>
> desirable objective.
>
>     There are no pros, there are only cons, with regard to the 
> preferential
> treatment
>
> of the blind, which is founded in irrational whim, prejudice, or taste; 
> and
> the blind
>
> cannot rightly claim, nor do they generally want, mere favoritism, public 
> or
> private,
>
> any more than they claim or want the opposite: discriminatory 
> disadvantage,
> guilt-or-shame-motivated
>
> rejection, kindness-inspired overprotection, or unthinking exclusion. The
> pros and
>
> cons of preferential treatment founded in special qualities or needs of 
> the
> group
>
> depend in each individual instance upon three factors: (1) upon a faithful
> determination
>
> and accurate evaluation of the special qualities or needs of the blind; 
> (2)
> upon
>
> a correct appraisal of the public policy or social objective sought to be
> achieved
>
> by the particular preferential treatment; and (3) upon the adaptation of
> means to
>
> ends, that is, upon whether the means are proper and there is a close and
> substantial
>
> relationship between the special qualities and needs of the blind, on the
> one hand,
>
> and the policy or objective on the other.
>
>     The other term that must be defined is "the blind." Who are the blind?
> What
>
> is blindness?
>
>     The term blindness in its literal denotative sense means loss of
> eyesight; the
>
> absence of visual acuity. It refers to a strictly physical condition. The
> blind,
>
> then, are simply those who cannot see. Nothing more, nothing less!
>
>     The term blindness, however, also has a wider connotative sense. In
> this sense,
>
> it refers to restricted social and economic contact, opportunity and
> activity. To
>
> be stripped of eyesight is to be shorn of full-fledged membership in
> society.
>
>     The difference between the denotative and connotative meanings of
> blindness
>
> is exactly that between disability and handicap. Disability refers to a
> physical
>
> deprivation; handicap to the social consequences of that deprivation. The
> distinction
>
> may be seen  in the fact that there are many disabilities which carry 
> little
> or no
>
> handicap, such as the chronic laryngitis of Andy Devine, the undersize of
> jockeys,
>
> or the oversize of basketball players. Likewise, there are handicaps with 
> no
> disability,
>
> such as the black skin of American Negroes or the religion of the Jews in
> Nazi Germany.
>
> Disability is properly the concern of medical science. We can do little
> about the
>
> physical fact of blindness except to cure it or live with it. But it is 
> not
> blindness
>
> alone that we live with. We live with the other people, which is to say we
> live in
>
> society. It is society which creates and imposes the handicap of 
> blindness,
> for it
>
> consists of the misconceptions of the sighted about the nature of the
> physical disability.
>
> The principal misconception, the one that embodies and epitomizes all the
> rest, is
>
> that blindness means helplessness--social and economic incapacity; the
> destruction
>
> of the productive powers; the obliteration of the ability to contribute to
> or benefit
>
> from normal community participation; in short, the lingering image of  the
> helpless
>
> blind man.
>
>     Three comments about the social handicap of blindness are particularly
> in order:
>
> (1) To place responsibility for it upon the sighted is not to speak in 
> terms
> of blame
>
> or recrimination. Far from it! The misconceptions are sanctioned by a
> society motivated
>
> mainly by benevolence, wishing above all else to be kind and helpful. (2)
> Wherever,
>
> as happens with increasing frequency, an individual blind person breaks
> through the
>
> social barriers, his success is likely to be attributed to his possession 
> of
> special
>
> genius or compensatory powers either superhuman or supernatural which 
> leave
> the overall
>
> image of blindness intact. (3) Public attitudes about the blind inevitably
> become
>
> the attitudes of the blind. The blind see themselves as others see them.
> They accept
>
> the public view of their limitations and thus do much to make them a
> reality.
>
>     Most people exaggerate the physical and underemphasize the social
> aspect of
>
> blindness. Our distinguished and able chairman, Father Carroll, has 
> defined
> blindness
>
> in terms of twenty lacks and losses. I am one of Father Carroll's numerous
> admirers.
>
> But I admire him more for his willingness to prepare a list than for the
> list he
>
> has prepared. It seems to me that he falls prey to the common fallacy. 
> Note
> what
>
> a large percentage of the items on the list refers to the physical fact of
> blindness
>
> and its immediate physical and personal consequences; what a small
> percentage refers
>
> to the broadly social. What may be known hereafter as Father Carroll's 
> Lacks
> and
>
> Losses reads as follows: 1) loss of physical integrity; 2) loss of
> confidence in
>
> the remaining senses; 3) loss of reality contact; 4) loss of visual
> background; 5)
>
> loss of "light"; 6) loss of mobility; 7) loss of visual perception:
> beautiful; 8)
>
> loss of visual perception: pleasurable; 9) loss of ease of written
> communication;
>
> 10) loss of ease of spoken communication; 11) loss of means for
> informational progress;
>
> 12) loss of recreation; 13) loss of technique, daily living; 14) loss of
> career:
>
> vocation; goal; job opportunity; 15) loss of financial security; 16) loss 
> of
> personal
>
> independence; 17) loss of social adequacy; 18) loss of obscurity, 
> anonymity;
> 19)
>
> loss of self-esteem; 20) loss of total personality organization.
>
>     I would not have you believe that I under-assess the importance of the
> physical
>
> disability. Without sight, the range of perception is narrowed. Objects
> which can
>
> be seen from afar must be near at hand to be discernible by other senses.
> And the
>
> blind person who has not scuffed his shins on low-lying implements and 
> toys
> carelessly
>
> left on the sidewalk or stumbled over a curb, or bumped his head on an
> overhanging
>
> awning or branch has never left his armchair. These are undeniably
> embarrassing or
>
> uncomfortable experiences; but they are properly to be classified as minor
> annoyances
>
> or distractive nuisances like shaving in the morning or removing your 
> glass
> eyes
>
> at night. In my experience, blind people who are willing to move and put 
> one
> foot
>
> out in front of the other always somehow get where they want to go.
>
>     In any event, the main point is that the real affliction of blindness
> is not
>
> the physical disability or its immediate consequences but the social
> handicap. It
>
> therefore becomes most important to analyze the precise nature of the
> handicap. Of
>
> what does it consist? What are the elements which compose it? What does it
> mean to
>
> be excluded from society? What are the rights of membership of which the
> blind are
>
> thus deprived?
>
>     To answer these questions one must identify the main features of
> American society,
>
> for it is denial of participation in these which constitutes the handicap 
> of
> blindness.
>
> The process of answering the questions therefore is one of re-surveying
> American
>
> social and political thought and constitution ideals, one of restating the
> principles,
>
> doctrines, and concepts that are contained therein.
>
>     The task of restating American social and political assumptions and
> goals is
>
> complicated by a number of facts and factors. Major American social and
> political
>
> principles, such as the dignity of the individual, liberty, equality, and
> private
>
> property, are so intermingled and overlapping that it is difficult to
> separate any
>
> one of them out for single treatment.
>
>     Emphasis on the various elements has shifted at different periods in
> our history,
>
> in the documents which have embodied and expressed different movements,
> forces, and
>
> times, and among the prominent political writers and speakers. Equality 
> was
> the dominant
>
> note in the Declaration of Independence. Property assumed relatively a
> stronger position
>
> in the Constitution. During the nineteenth century when fortune and
> geography gave
>
> the nation military safety, and free land and the open frontier gave
> individuals
>
> a sense of economic safety, security was assumed and liberty was elevated
> into a
>
> primary position. Today, as Ralph Henry Gabriel writes, "When the
> traditional foundations
>
> of culture crumble, ... when government by law gives way to government by
> irresponsible
>
> force, the preoccupation with liberty as an end in itself is replaced by a
> new search
>
> for security, mental, social, economic, and even physical."1
>
>     Sometimes, indeed, going far beyond mere shifts in emphasis, the
> elements are
>
> presented as irreconcilably contradictory. Read for example this passage
> from William
>
> Graham Sumner: "Let it be understood that we cannot go outside this
> alternative:
>
> liberty, inequality, survival of the fittest; non-liberty, equality,
> survival of
>
> the unfittest. The former carries society upwards and favors all of its 
> best
> members;
>
> the latter carries society downwards and favors all its worst members."2
>
>     Finally, the task of stating American social and political principles
> is made
>
> difficult by the fact that they are not fixed and immutable as the laws of
> the Medes
>
> and the Persians were reputed to be. To the extent that they are a living
> reality
>
> in a developing democracy, they are constantly growing, maturing, and
> changing. Every
>
> generation, every decade is a formative period in the constitutional life 
> of
> the
>
> nation. In our generation, the creative interpretation and application of
> American
>
> social and political principles in the sphere of international 
> organization
> and in
>
> the social and economic sphere are in process.
>
>     Yet, despite these difficulties in stating them, the major elements in
> the set
>
> of widely accepted and persistently enduring political principles and 
> social
> ethics
>
> are identifiable and subject to description and characterization. The
> "easily remembered"
>
> formulations can be found in the landmark documents of our history. These
> documents
>
> not only express and embody movements and periods of the past but are as
> well basic
>
> forces of government in the present and for the future. They include the
> Declaration
>
> of Independence, the Northwest Ordinance, the Preamble to the United 
> States
> Constitution,
>
> the state constitutions, the Civil War amendments to the United States
> Constitution,
>
> and the more famous pronouncements of the United States Supreme Court.
>
>     1. Liberty. In American political thought, liberty has many aspects 
> and
> sources.
>
> It is both positive and negative. It is political, economic, personal, 
> and,
> in a
>
> broad sense, social. It is founded by some in positivism; by others, in
> natural law;
>
> by still others in moral law. It sets in equilibrium constitutionalism and
> democracy.
>
>     In part, liberty consists in protection against the will of the
> majority, no
>
> matter how regularly manifested and how lacking in oppressiveness or
> arbitrariness.
>
> In this aspect, it is embodied in an array of restraints on governmental
> action and
>
> the organized power of society. The existence of a constitutionally 
> arranged
> governmental
>
> structure and distribution of powers, in fact, the existence of a
> constitution at
>
> all implies a system of limited government. The Constitution, too, 
> contains
> many
>
> explicit prohibitions on government. Though some exist elsewhere in the
> Constitution,
>
> the Bill of Rights and the other amendments are, of course, a catalogue of
> these.
>
> Among them are the protection given life, liberty, and property, the
> requirement
>
> of established and regular procedures by government, and the guarantee of
> immunity
>
> from unreasonable intrusions into the privacy of one's person, house,
> papers, and
>
> effects. The many safeguards against improper conviction for crime refer 
> not
> only
>
> to the technical aspects of criminal justice, but bespeak the basic right 
> of
> personal
>
> freedom, i.e., freedom to move about as one pleases and to be not subject 
> to
> surveillance
>
> and custodialization by the agents of the state. Likewise, freedom from
> slavery and
>
> peonage is decreed, implying not only self-ownership but free labor and 
> the
> right
>
> to the rewards of labor.
>
>     A dominant part of American social and political thought has always
> been a notion
>
> that these rights, thus fixed in the Constitution, are the indivestible
> possessions
>
> of individuals even when not so guaranteed. Whether derived from natural
> law, moral
>
> law, higher law, or various other concepts about the fundamental nature of
> man and
>
> society, this notion has found constant expression throughout our history.
> Its standard
>
> formulation is in the Declaration of Independence: "[T]hat [men] are 
> endowed
> by their
>
> Creator with certain inalienable rights, that among these are life, 
> liberty,
> and
>
> the pursuit of happiness." These rights governments were instituted to
> secure and
>
> protect, not to create and confer.3
>
>     The conception that rights which are regarded as very important are
> somehow
>
> natural rights or derive from a higher law results from a philosophic view
> which
>
> has lost much of its persuasion and support in recent decades. The 
> Founding
> Fathers,
>
> however, and most American statesmen down through the Civil War period, 
> made
> it their
>
> starting point. Natural rights thus became inextricably woven into the
> fabric of
>
> American social and political thought and popular belief. They lurk just
> below the
>
> surface of many of our State papers, judicial pronouncements, and 
> political
> orations
>
> of today. Of those Americans who do not accept this particular 
> philosophical
> conception
>
> most still insist upon the great importance and basic character of the
> rights proclaimed.
>
>     So far, I have spoken of the constitutional side of constitutional
> democracy.
>
> The democracy side is a positive aspect of liberty. It has to do with the
> individual's
>
> right to participate in government, in the determination of social 
> direction
> and
>
> policy. Its foundation is the doctrine of popular sovereignty and the
> consent of
>
> the governed. Its implementations are the right of suffrage, the right to
> seek and
>
> hold office, and the right of the majority to rule. Its indispensable
> conditions
>
> are freedom of speech, press, and assembly.4
>
>     Liberty is positive in another phase besides that of the 
> co-sovereignty
> of citizens
>
> of a republic. Government is responsible for the protection of the rights 
> of
> the
>
> individual.  This cannot be wholly achieved by the government itself
> refraining from
>
> invading them. It must prevent others from invading them. It must 
> eliminate
> and control
>
> the conditions which nullify them or make their exercise impossible. It 
> must
> foster,
>
> promote, establish, and maintain the conditions which make their exercise
> possible
>
> and significant. This is especially true if the right is active rather 
> than
> passive;
>
> if it involves doing and not just being; acquiring and not just having;
> speaking
>
> and not just listening. Congress, as Webster declared in his famous debate
> with Hayne,
>
> is under an obligation to exercise the powers delegated to it in the
> Constitution
>
> for the purpose of achieving the objectives set forth in the Preamble of 
> the
> Constitution--to
>
> "establish justice, insure domestic tranquility, provide for the common
> defense,
>
> promote the general welfare, and secure the blessings of liberty to
> ourselves and
>
> our posterity....."5
>
>     Men have a right to live, to personal freedom and personal security.
> They have
>
> the right to marry, have and rear children, and to maintain a home.6 They
> have a
>
> right, so far as government can assure it, to that fair opportunity to 
> earn
> a livelihood
>
> which will make these other rights possible and significant.7  Men may not
> be bound
>
> to the place of their poverty and misfortune; they may move freely about 
> the
> country
>
> in search of new opportunity.8 They have a right freely to choose their
> field of
>
> endeavor, unhindered by arbitrary, artificial and man-made impediments.9
> They have
>
> a right to enter the common trades, callings, and occupations of the
> community. They
>
> have the right, if they are free, to manage their own affairs as they see
> fit, unless
>
> and until there is interference with the equal rights of others to manage
> their affairs
>
> or there is injury to the welfare of the community.
>
>     "It is not enough," wrote the President's Committee on Civil Rights in
> 1947,
>
> "that full and equal membership in society entitles the individual to an
> equal voice
>
> in the control of his government; it must also give him the right to enjoy
> the benefits
>
> of society and to contribute to its progress.... Without this equality of
> opportunity,
>
> the individual is deprived of the chance to develop his potentialities and
> to share
>
> the fruits of society. The group also suffers through the loss of the
> contributions
>
> which might have been made by persons excluded from the main channels of
> social and
>
> economic activity."
>
>     2. The Dignity of Man. Deeply imbedded in this conception of liberty 
> is
> a democratic
>
> view of the individual, of his role in society, relation to the state,
> essential
>
> dignity and worth. It is the individual who possesses rights which are
> fundamental
>
> and inalienable. He is at the beginning and the end of the State. He
> organizes it
>
> and gives it authority. Its powers are conferred to protect his rights and
> to assure
>
> the conditions necessary for their maximum expression. The State exists 
> for
> his benefit,
>
> not he for its. "In democratic society," wrote Charles Merriam, "regard 
> for
> the dignity
>
> of man stands behind the throne of public order, a constant reminder of 
> the
> need
>
> for liberty and justice as well as order, a constant plea that the human
> personality
>
> shall not be forgotten in the multiplications of laws, in the 
> ramifications
> of administration
>
> or in the antiquarianism of formal justice."10 Democracy breathes respect
> for all
>
> men and seeks to preserve their individuality and autonomy. This spirit is
> violated
>
> wherever men are alienated or sheltered from the mainstream: not only in 
> the
> overt
>
> gestures of rejection but in the sentimental embrace of patronage and
> protection.
>
> Humanity is degraded and individuality disparaged by treatment of the 
> person
> as a
>
> unit in a category determined by irrelevant traits, defined and measured 
> not
> in unique
>
> terms of personal character and achievement but in the  stereotype terms 
> of
> physical,
>
> or national, or racial difference.
>
>     3. The Rights to Property and to Contract. The rights to property and
> contract
>
> have likewise been regarded as fundamental in the American system. The 
> right
> to property
>
> along with life and liberty is listed as one of the three great rights of
> all free
>
> men in Chapter 39 of the Magna Charta. It appears thus also in the 
> American
> State
>
> Constitutions, early and late, in the Northwest Ordinance of 1787, in the
> United
>
> States Constitution, Amendments V and XIV and elsewhere.11
>
>     The rights to liberty, property, and contract are interlocking if not
> interchangeable
>
> concepts, The right to contract is sometimes stated as an incident to the
> right to
>
> property; sometimes as an independent aspect of liberty. Property is
> described by
>
> some as sufficiently broad to incorporate all other rights of individuals,
> including
>
> liberty; and liberty is often regarded by others as broad enough to
> encompass the
>
> right to acquire, use, and enjoy property. The three rights of liberty,
> property,
>
> and contract are thus intimately associated in American thinking.12
>
>     Property and contract rights are not unlimited; but on the contrary,
> are subject
>
> to public control in the public interests. They may be abridged, and, in
> some cases,
>
> destroyed altogether, if that is necessary to protect the community 
> against
> injury
>
> or danger in any form, against fraud, or vice, or economic oppression, or
> serious
>
> public inconvenience, or depression, or other disasters. The power to
> control is
>
> coextensive with the social and economic activities of men. It finds its
> limit in
>
> the nature of the acts forbidden or required and its justification in the
> direct
>
> relation of these acts to the public welfare or to the equal property 
> rights
> of others.
>
>     The power of the State over property and contract rights, however, is
> not merely
>
> negative or incidental to the power to legislate for the health, safety,
> morals,
>
> and general welfare of the community. The basic character of the right and
> the purpose
>
> of government regarding it cannot be minimized or ignored. That purpose, 
> as
> in the
>
> case of liberty, is to protect and preserve, maintain, and nurture the
> right. The
>
> power to regulate the use of property and contract, consequently, may not,
> save in
>
> very rare and special circumstances, be converted into the power directly 
> to
> take
>
> property and contract rights. And in discharging its primary and 
> affirmative
> duty
>
> with respect to these rights, the State must keep constantly in view the
> essential
>
> values of private property in our system. It is a central factor in the
> organization
>
> of society. It is an impelling source of motivation. It is a principal
> incentive
>
> for productive activity. It is a reward for labor and contribution. It is 
> at
> once
>
> the object of individual enterprise and success and the means of achieving
> success.
>
> And contract is the form of expression and governing instrument, not only 
> of
> most
>
> business activity, but as well of most of the transactions of daily life.
>
>     4. Equality. Only second to liberty itself in our history has been the
> ideal
>
> of equality. In fact, equality has always conditioned liberty and 
> determined
> its
>
> character just as liberty has always conditioned equality and determined 
> its
> character.
>
> In the Declaration of Independence, the first of the "self-evident truths"
> is that
>
> all men are created equal; and all men are equally "endowed by their 
> Creator
> with
>
> certain inalienable rights, among which are life, liberty, and the pursuit
> of happiness."
>
>     Alexis de Tocqueville, in 1835, described equality in America as "the
> fundamental
>
> fact from which all others seem to be derived and the central point at 
> which
> all
>
> my observations constantly terminated." In his view, it gave "a peculiar
> direction
>
> to public opinion and a peculiar tenor to the laws; it imparts new maxims 
> to
> the
>
> governing authorities and peculiar habits to the governed." It "extends 
> far
> beyond
>
> the political character and the laws of the country, and... has no less
> effect on
>
> civil society than on the government; it creates opinions, gives birth to
> new sentiments,
>
> founds novel customs, and modifies whatever it does not produce."13
>
>     Equality, even more than liberty, stood in the forefront of the
> historic struggle
>
> in the nation to abolish property in man and the institution of slavery;
> and, along
>
> with liberty, emerged in the Civil War amendments to the Constitution. The
> Thirteenth
>
> Amendment, freeing men from slavery and nationalizing the right of 
> freedom,
> nationally
>
> guaranteed what slavery denied: the equal right of all to enjoy protection
> in those
>
> natural rights which constitute freedom. The Fourteenth Amendment, in the
> three redundant
>
> clauses of Section I, re-embodied these same objectives and added an
> explicit guarantee
>
> of the equal protection of the laws, thereby adding another confirmatory
> reference
>
> to the self-evident truth that all men are created equal and are equally
> entitled
>
> to the protection of government in the enjoyment of their natural and
> inalienable
>
> rights.14
>
>     Like liberty, equality has many phases. One of them relates to the
> doctrine
>
> of proper classification. The laws must be aimed at the achievement of a
> public and
>
> constitutional purpose. They may not be motivated by hatred, vengeance,
> favoritism,
>
> or private gain. Legislation framed with a discriminatory purpose,
> manifesting "an
>
> evil eye and an unequal hand" contains an elementary antagonism to the 
> idea
> of the
>
> equality of men. Once legislation is endowed with a public and
> constitutional purpose,
>
> it still must meet other tests. Because there are real differences among
> men, regulation
>
> would be altogether ineffective if it had to apply to all or none. The law
> must therefore
>
> be selective. But to be equal, it must treat all those similarly situated
> alike.
>
> The differences between men that underlie selection must be real 
> differences
> and
>
> must bear an intimate relationship to the purpose of the law and valid
> social goals.
>
> All other differences are irrelevant and must be ignored. "Class
> Legislation," said
>
> Justice Field in summing up this doctrine, "discriminating against some 
> and
> favoring
>
> others, is prohibited, but legislation which, in carrying out a public
> purpose, is
>
> limited in its application, if within the sphere of its operation it 
> affects
> alike
>
> all persons similarly situated, is not within the amendment."15
>
>     Another phase of the idea of equality is the rule of law. If all men
> are created
>
> equal and equally possess certain rights, and if governments are 
> instituted
> to secure
>
> and maintain those rights, and men therefore are equally entitled to such
> protection,
>
> the protection can only be afforded by uniform rule, that is, by law. One
> way of
>
> putting this is the expression "Equality before the Law." Another way is 
> in
> the celebrated
>
> words of the Massachusetts Bill of Rights: "That the government of the
> Commonwealth
>
> may be a government of laws and not of men" Thus, in this aspect, the
> doctrine of
>
> equality is in effect a command that the government act by established and
> regular
>
> procedures and by uniform rules. It is a command that the purely personal,
> the arbitrary,
>
> capricious and whimsical, be reduced and eliminated from the exercise of
> power. It
>
> is a command that the rules be fixed and announced in advance in a way 
> which
> will
>
> make them freely and publicly available. It is a requirement of a degree 
> of
> certainty
>
> and predictability in government action and of a system of rights growing
> out of
>
> uniform rules. It is finally an order that administrators as well as
> legislators
>
> act within these confines.
>
>     In still another phase, equality is not negative and procedural but
> positive
>
> and substantial. Anatole France referred to "the majestic equality of the
> laws which
>
> forbid rich and poor alike to sleep under the bridges, to beg in tile
> streets, and
>
> to steal their bread." But the demands of equality are not met by the 
> equal
> treatment
>
> which results from the absence of the laws or from the indiscriminate
> application
>
> of the laws to those who are dissimilarly situated. Moreover, the demands 
> of
> equality
>
> are not exhausted by the doctrine of classification and the rule of law. 
> The
> equal
>
> protection of the laws refers to the quality of the laws as well as to the
> mechanics
>
> of their operation. The reign of equal laws involves as well the reign of
> just laws,
>
> and the maintenance of equality in the enjoyment of rights is at the heart
> of the
>
> system of justice. Equality thus must be the very purpose of governmental
> action
>
> and policy as well as a test and measure of its means. It must "give
> direction to
>
> public opinion," determine "the tenor of the laws, impart "maxims to the
> governing
>
> authorities," and modify "whatever it does not produce."
>
>     Particularly is the government under a duty to guarantee equality of
> opportunity.
>
> Without that, freedom itself cannot last and becomes an illusion. The only
> aristocracy
>
> that a system founded upon equality can tolerate is an aristocracy of
> personal merit
>
> and achievement. Uniformity and regimentation, on the one hand, and 
> status,
> influence,
>
> and power based on birth, social position, or inheritance on the other 
> hand,
> are
>
> equally incompatible with equality. Equality of all men presupposes 
> respect
> for the
>
> rights of others. In a society of equals, therefore, men are free to be
> different.
>
> All limitations on opportunity, all restrictions on the individual based 
> on
> irrelevant
>
> differences of race, color, religion, national origin, sex, and the like,
> are in
>
> conflict with equality and must be removed and forbidden. Access to the
> mainstreams
>
> of community life, the aspirations and achievements of each member of
> society, are
>
> to be limited only by the skills, energy, talents, and ability he brings 
> to
> the opportunities
>
> equally open to all Americans.
>
>>From what I have said so far, a number of propositions emerge:
>
>     (1) Preferential treatment of the blind based on favoritism, 
> privilege,
> whim,
>
> prejudice, patronage, pity, charity, self-interest of others, or feelings 
> of
> like
>
> or dislike, cannot be justified and indeed does a great deal of harm. On 
> the
> other
>
> hand, preferential treatment which takes account of the special qualities 
> or
> needs
>
> of the blind or aspects of their situation not shared by others, which is
> aimed at
>
> a desirable social objective and which employs  proper means properly
> adapted to
>
> this purpose is not only justifiable preferential treatment but is 
> treatment
> which
>
> should be at the foundation of all public and private policy toward the
> blind.
>
>     (2) Blindness has a dual aspect: the physical and the social. The 
> first
> is the
>
> disability; the second is the handicap. Treatment of the disability is a
> medical
>
> task. Overcoming the handicap is the function of rehabilitation.
>
>     (3) The handicap consists mainly of the misconceptions of the sighted
> about
>
> the physical disability which result in social exclusion. In all but the
> physical
>
> sense, and even to some extent in that, it consists of a loss of full
> membership
>
> in society; a denial to the blind of the rights and goals which others
> share--liberty,
>
> equality, property, dignity.
>
>     (4) Overcoming the handicap of blindness, therefore, means removing 
> the
> bars,
>
> exclusion, and denials of which the handicap consists: conferring on the
> blind the
>
> title deeds of social freedom and membership; the rights of liberty,
> equality, property,
>
> and dignity; in short, their reintegration into society.
>
>     (5) Programs which address themselves to this purpose or which move in
> this
>
> direction, while they necessarily involve preferential treatment, meet all
> the tests
>
> and standards set up for good policy. Such special arrangements might 
> better
> go by
>
> the name of equal treatment. Indeed, to lift from the backs of the blind 
> the
> special,
>
> heavy, and unnecessary burdens which society has caused them to bear and 
> to
> call
>
> this preferential treatment can hardly be regarded as anything but the
> bitterest
>
> irony. Programs which move in the opposite direction, which accept and 
> build
> upon
>
> the public misconceptions about the nature of the physical disability, 
> which
> presuppose
>
> the incapacity and abnormality of the blind and which institutionalize 
> that
> presupposition
>
> in segregation and custodialization--all programs, in other words, which
> continue
>
> or intensify social exclusion or which are motivated by patronage, 
> charity,
> whim,
>
> prejudice, or self-interest involve preferential or special treatment 
> which
> increases
>
> the handicap. They perpetuate the very attitudes and conditions which they
> should
>
> be designed to prevent.
>
>     (6) Preferential treatment is also justified which: (a) tends to
> ameliorate
>
> the immediate physical consequences of the physical disability of 
> blindness;
> or (b)
>
> pending the day when integration has been achieved, mitigates the 
> financial
> and other
>
> consequences of social exclusion or offsets the disadvantage resulting 
> there
> from
>
> by means which do not further entrench the public misconception or which 
> do
> so as
>
> little as possible.
>
>     (7) To be consistent with the standards dictated by the basic
> principles of
>
> our social, political, and constitutional system, programs for the blind
> must:
>
>     (a) Allow the blind to manage their own personal affairs and proceed 
> on
> the
>
> assumption that they are capable of doing so.
>
>     (b) Not only permit the blind, but stimulate and encourage them to
> develop their
>
> potentialities, share in the fruits of society, and contribute to its work
> and progress.
>
>     (c) And to do this, not only permit, but stimulate and encourage the
> blind to
>
> work, to engage in individual enterprise, to exercise free judgment and 
> free
> movement
>
> in the search for opportunity, freely to choose their fields of endeavor 
> and
> to enter
>
> the common callings, trades, occupations, and professions of  the 
> community.
>
>     (d) To stimulate and encourage the blind to do these things by relying
> on the
>
> normal incentives, principal among which are financial remuneration and 
> the
> improvement
>
> of one's economic lot and social status.
>
>     (e) Permit, stimulate, and encourage the blind to acquire, enjoy, and
> use property,
>
> real and personal, not just for immediate consumption purposes but as a
> motivational
>
> source of endeavor and a means of economic improvement.
>
>     (f) Protect the essential dignity of the individual: by recognizing 
> the
> worth
>
> of the human personality and treating it as a community asset rather than 
> a
> community
>
> liability; by supplying aids and services without humiliation, without 
> undue
> intrusion
>
> into the privacy of the recipient, without imposing upon him the badges 
> and
> indicia
>
> of a needy and special status, without subjecting him to the personal
> judgments of
>
> social workers influenced by humanity, charity, approval, or other 
> emotions;
> by making
>
> possible a standard and circumstance of living not conspicuously different
> from that
>
> enjoyed by the rest of the community; by leaving recipients free to make
> their own
>
> decisions as to spending, living arrangements, and personal matters.
>
>     (g) If the demands of equality are to be met, public financial aid 
> must
> be granted
>
> as a matter of right, the element of personal discretion exercised by
> administrators
>
> and welfare workers must be eliminated, the amount and conditions of the 
> aid
> must
>
> be specified in uniform rules made accessible to recipients and 
> prospective
> recipients
>
> and sufficiently exact so that recipients may determine to what they are
> entitled
>
> and what their responsibilities are. Legislative and administrative
> standards must
>
> be established which are uniformly applied, which treat all welfare
> recipients alike
>
> who are similarly situated with respect to a valid purpose of the welfare
> law, and
>
> which vary the amount and the condition of the grant when there are real
> differences
>
> among recipients in terms of their relationship to the welfare program.
> Finally,
>
> equality requires--as does liberty, the dignity of the individual and the
> essential
>
> notion of property--that the purpose of the welfare law be opportunity as
> well as
>
> security. Relief rolls should provide relief; but they must also provide 
> the
> means
>
> of escape from them. Reintegration into society through open and equal
> access to
>
> the mainstream of community productive activity must be an object of 
> welfare
> law
>
> and a measure of its adaptation if the fundamental political and
> constitutional principles
>
> of our system are to be honored in the fact as well as held out in the
> promise.
>
>     Measured by these standards, evaluated in the light of these
> considerations,
>
> how do our programs and provisions for the blind prove out? The answer 
> must
> be mixed.
>
> Some programs are well-adapted to these principles; others poorly; and 
> still
> others
>
> are in flat contradiction of them. Unfortunately, some of the most 
> important
> programs
>
> fall into the latter two categories.
>
>     The rapidly growing and recently created system of orientation and
> adjustment
>
> centers--focusing on mobility training, personal care, prevocational 
> manual
> skills,
>
> and the development of attitudes which make these other activities 
> possible
> and fruitful-are
>
> properly oriented and adjusted to reduce the immediate physical 
> consequences
> of the
>
> disability of blindness, to uproot the conviction of incompetence, and to
> impart
>
> self-confidence, hope, and a zest for living.
>
>     The home teacher system, though hampered by the need to deal with the
> blind
>
> person in his home and then only in occasional short visits, substantially
> moves
>
> in the same direction as the orientation center. It is most effective when
> used as
>
> a case-finder for the center and otherwise works in close collaboration 
> with
> it.
>
> It is least effective when it emphasizes handicraft as mere busy work or
> when it
>
> teaches Braille to clients who will never have any use for it.
>
>     White Cane laws, now enacted in almost all the states, by giving the
> blind a
>
> legal position in traffic and moderating the discriminatory harshness of 
> the
> contributory
>
> negligence rule, make meaningful for the blind the human and 
> constitutional
> right
>
> of free movement, just as the cane itself makes more meaningful the 
> physical
> capacity
>
> of free movement.
>
>     What about good vision requirements established in many laws and
> regulations
>
> dealing with jobs, licenses, and the like? Some of these are, of course,
> perfectly
>
> in order. Where sight is indispensable to the performance of the task--as 
> in
> hunting
>
> with a gun, driving a truck, or working as a photographer of wildlife for
> the National
>
> Park Service--the blind are legitimately excluded. Where sight is not
> indispensable,
>
> as is the case in thousands of jobs public and private from which the 
> blind
> are now
>
> barred--the continued exclusion of the blind can have no special
> justification. In
>
> many of these cases, the bars remain up because those who tend them have
> only their
>
> misconceptions to guide them.
>
>     Laws and regulations giving preference to blind persons with respect 
> to
> jobs
>
> are not mere favoritism if they are based on the special qualifications of
> the blind
>
> to perform the tasks assigned. This is clearly so when the blind are 
> called
> upon
>
> to work in or administer programs affecting the blind. In that 
> circumstance,
> blindness
>
> is an enabling asset endowing the worker with special knowledge, 
> experience,
> and
>
> the confidence of his clients which probably cannot be secured in any 
> other
> way than
>
> by being blind. Of course this enabling asset should be given 
> determinative
> weight
>
> only when other things are equal. For the blind to be given preference in
> other situations
>
> in which blindness does not contribute to the ability to do the work would
> be as
>
> unjustifiable as to discriminate against the blind in jobs in which
> blindness does
>
> not detract from the ability to do the work.
>
>     What about vending stands for which the blind are given rent-free
> locations
>
> on public property, in connection with the establishment of which they are
> given
>
> a preference and protection against vending machine competition, and with
> respect
>
> to the operation of which blindness is not an enabling asset? These 
> special
> arrangements
>
> will not withstand merited criticism once the blind have achieved a 
> footing
> of complete
>
> economic equality. Until that time arrives, however, the vending stand
> program is
>
> preferential treatment which is justified as a small offset to almost
> universal economic
>
> discrimination against the blind; and one in which bona fide jobs are
> provided for
>
> qualified blind workers at comparatively negligible cost to the public; 
> and
> one in
>
> which the blind are presented to the public in an aspect of competence and
> normality.
>
> If the management of the vending stand programs is to be consistent with 
> the
> standards
>
> above discussed, it must keep supervision and control at an absolute
> minimum; allow
>
> the operator to purchase his stand and equipment with only an option to
> repurchase
>
> by the public; give the operator complete independence in the management 
> of
> his business
>
> affairs retaining only the power to revoke the license if the operator
> proves incompetent
>
> or becomes publicly obnoxious; protect the operator's profits against
> confiscation
>
> for the support of supervisory personnel or sub-marginal stands which the
> administrators
>
> have mistakenly established in unprofitable locations. The control system,
> on the
>
> contrary, reflects the custodial attitude toward the role and abilities of
> the blind,
>
> a conviction that the blind are incapable of running their own businesses
> and incompetent
>
> to lead their own lives.
>
>     Let us turn next to public assistance. Liberty in the direction of
> one's affairs,
>
> the whole basic principle of self-management, is violated by the means 
> test.
> Under
>
> it, the individual recipient soon loses control of his daily activities 
> and
> the whole
>
> course and direction of his life. The capacity for self-direction 
> presently
> atrophies
>
> and drops away. With each new item budgeted or eliminated, with each new
> resource
>
> tracked down and evaluated, the social worker's influence increases. This 
> is
> an inevitable
>
> concomitant of the means test. It results from the nature and extent of 
> the
> system.
>
> It is bred and nourished by the provisions of the statutes and the rules
> issued under
>
> them. It is in the flexible joints of the cumbersome machinery. It is in 
> the
> detail
>
> and intimacy of the investigation. It is in the inescapable confinements 
> of
> the budget.
>
> It is in the idleness defeatism, and waning spirit of the recipient.
> Whatever the
>
> social worker's wishes and intentions, her hand becomes the agency of
> direction in
>
> his affairs. The "concern of assistance with the whole range of income,"
> wrote Karl
>
> DeSchweinitz, "always contains a threat to the freedom of the individual.
> Even when
>
> there is no conscious intent to dictate behavior to the beneficiary, the
> pervasive
>
> power of money dispensed under the means test may cause the slightest
> suggestion
>
> to have the effects of compulsion `Whose bread I eat, his song I sing.'"16
>
>     Not only is liberty violated by the means test but so also are dignity
> and equality--and
>
> for many of the same reasons. Dignity is jeopardized by the initial
> financial investigation,
>
> by the searching inquiry into every intimate detail of need, living 
> habits,
> family
>
> relations, by the setting up of a detailed budget of expenditures subject 
> to
> repeated
>
> examination and review, by the continuously implied and often explicit
> threat that
>
> if behavior is uncooperative or unapproved, aid will be reduced or 
> stopped,
> by the
>
> wholesale substitution of agency and social worker controls for the 
> personal
> direction
>
> of personal affairs, by the unwarrantable intrusions into privacy involved
> in each
>
> of the foregoing and the galling humiliation of the whole process, and,
> finally,
>
> by the constant tendency of the whole system to push living standards down
> below
>
> a minimum of decency and health.
>
>     The excessive individualization of the whole design and process of
> means test
>
> aid is fundamentally antithetical to the idea of equality. A system which
> makes so
>
> much depend upon a minute examination of every aspect of the individual's
> situation
>
> necessarily involves personalized judgments by officials and invites
> arbitrary and
>
> whimsical exercises of power, prevents the enforcement of a uniform rule
> even when
>
> the legislative provisions and administrative regulations are detailed and
> exact,
>
> renders it impossible for the recipient himself to determine to what he is
> entitled,
>
> constitutes the very thing intended to be prevented by the idea of "a
> government
>
> of laws and not of men," and flies in the face of basic requirements of
> proper classification.
>
> Since with respect to the purposes of public assistance law most 
> individuals
> are
>
> parts of groups standing in the same relationship, those who are similarly
> situated
>
> are not treated alike and real differences are frequently disregarded.
>
>     Means test aid also violates the notion of individual opportunity,
> access to
>
> the mainstream of community productive activity and normal incentives. 
> Since
> means
>
> test aid requires that all income and resources of the recipient be 
> applied
> to meet
>
> his current needs, and since the public assistance grant is reduced by the
> amount
>
> of any such available income or resources, the usual financial motive for
> effort
>
> and endeavor is removed from the recipient unless the recipient can gain
> enough and
>
> with sufficient certainty to be independent of the relief rolls.
>
>     Granting aid as a matter of right contradicts practically all of the
> tendencies
>
> inherent in the means test and produces a system more consonant with the
> political
>
> and constitutional assumptions and goals of American democracy.
>
>     Aid as a matter of right requires the establishment of fixed and
> uniform rules
>
> specifying the terms and conditions of the grant. Thus the principal
> features of
>
> the system must be laid down by the legislature. This contrasts with the
> means test
>
> variable grant, based on individual need individually determined by the
> administrative
>
> agency under discretionary authority conferred by the legislature. Those 
> who
> are
>
> similarly situated are therefore necessarily treated alike and under
> standards comparable
>
> with those governing assistance to other groups in the community.
>
>     Granting aid as a matter of right protects the liberty of the
> individual to
>
> manage his own affairs and conduct his daily life free of authoritarian
> controls
>
> and caseworker supervision.
>
>     It protects the dignity of the individual. He is treated as a member 
> of
> a class
>
> entitled to be dealt with in a manner determined by law, not by
> individualized administrative
>
> discretion. The occasion is eliminated for invasion of the individual's
> privacy,
>
> supervision of his personal behavior, and humiliating probing into the
> intimacies
>
> of his life; and a seminal principle is established which stands as a
> barrier to
>
> all such actions.
>
>     Finally, rehabilitation. The primary task of vocational 
> rehabilitation,
> as I
>
> have said, is the overcoming of the social handicap--not the physical
> condition.
>
> It consists in the creation of an environment within society, within 
> public
> programs,
>
> and within the blind themselves, which will be in the fullest sense
> conducive to
>
> normal livelihood and normal life. It involves opening up the channels of
> social
>
> participation, that is, enabling the blind to enjoy the benefits of 
> socially
> determined
>
> standards of liberty, equality, property, and dignity. Its time-tested 
> tools
> are
>
> vocational orientation, vocational training, counseling, and guidance 
> which
> stimulates
>
> and opens up horizons--and finally, of course, placement in remunerative
> employment
>
> in the common callings, trades, pursuits, and professions of the 
> community.
>
>     In the proper conceptions of its function as well as in the use of
> these time-tested
>
> tools, the vocational rehabilitation program of the United States must in
> large measure
>
> be pronounced a failure. The hope and opportunity are to be measured in
> miles; the
>
> actual accomplishment must be measured in inches.
>
>     Rehabilitation so far as the individual rehabilitant is concerned is a
> complex
>
> process in which mental and emotional elements are predominant. It 
> involves
> myriad
>
> adaptations not merely physical in nature but social and psychological. In
> effect,
>
> the entire personality must undergo reconstruction; the blind person's
> conviction
>
> of his own incompetence accepted from the public misconception must be
> uprooted;
>
> a rebirth, a new act of creation must be wrought. In this process, 
> ambition,
> hope,
>
> and self-reliance are essential ingredients. Consequently, rehabilitation 
> by
> the
>
> command of the counselor, or submission to his attitudes and preferences, 
> or
> by the
>
> coercion which results from conditioning public assistance upon it is a
> contradiction.
>
> It is therefore futile. It is as futile as ordering a person to restore 
> his
> emotional
>
> balance while adding to the very factors which cause the unbalance. Since
> the objective
>
> of rehabilitation is restoration to a normal useful role in society, the
> standards
>
> of success are in large measure culturally determined. The rehabilitated
> person,
>
> thus, is one for whom the assumptions and goals of the community have 
> become
> as significant
>
> as for others, who has in fact achieved equal opportunity to enter the
> calling of
>
> his choice, to acquire, use, and dispose of property, to exercise the 
> right
> of personal
>
> independence, and to operate on the other assumptions and principles 
> before
> listed.
>
> Just as the habits of freedom are not learned by experiencing slavery, so
> ambition
>
> is not learned by destitution, self-management by authoritarian controls,
> incentive
>
> by denying the hope of gain, or self-respect by second-class citizenship.
> Rehabilitation
>
> by command or coercion cultivates the very traits which frustrate and
> prevent rehabilitation.
>
> A rehabilitation program which continually impresses upon the client a 
> sense
> of his
>
> helplessness and dependency, which enshrouds him in an atmosphere of
> disbelief, doubt,
>
> and defeatism, and which exhibits attitudes of guardianship and
> custodialism, must
>
> inevitably sap the fibre of self-reliance, undermine hope, deter
> self-improvement,
>
> and destroy the very initiative which is indispensable to rehabilitation.
> Rehabilitation
>
> by stimulation, by opening up new horizons, by assisting the client in the
> achievement
>
> of goals of his own choice, by incentives carefully planned to encourage
> productive
>
> activity by the expectation of normal rewards--retention of earnings,
> improvement
>
> of standards of living, accumulation of real and personal property--places
> rehabilitative
>
> effort in conformity with the political assumptions, economic impulses and
> behavioral
>
> standards imposed by democratic thought and current social knowledge.
>
>     Optimistic and skillful counseling, built on personal experience with
> the handicap
>
> and its problems, is required to accomplish this delicate work. Under the
> present
>
> program such counseling has not been supplied. On the contrary, too often
> rehabilitation
>
> officers have themselves subscribed to the conviction of the incompetence 
> of
> the
>
> blind. Little has been done under the present program to halt the tendency
> of shunting
>
> the disabled into a limited series of stereotyped occupations, to provide 
> a
> staff
>
> which will have and exhibit full confidence in the blind, and which will 
> aid
> the
>
> blind to enter fields of their own choosing. Little has been done under 
> the
> present
>
> program to strengthen placement as an inescapable function of the
> rehabilitation
>
> agency. For the blind this is the arduous culmination of a long and 
> arduous
> process.
>
> It cannot be accomplished by automatic referral to employers. It can only 
> be
> accomplished
>
> by the application of highly specialized and individualized techniques of
> affirmative
>
> contact with employers, aggressive seeking of employment opportunities,
> personal
>
> demonstration, and follow-up. Little is done under the present program to
> remove
>
> the obstructions to employment of the physically handicapped which exist 
> in
> the public
>
> mind, in the statutes, ordinances, administrative rulings, judicial
> decisions, and
>
> institutional practices. Above all, the true nature of handicap and the
> elements
>
> which compose it, particularly the social and the psychological as
> distinguished
>
> from the physical and medical elements; the proper functions and goals of
> rehabilitation;
>
> the relationship of disability of dependency, especially economic
> dependency; the
>
> part presently played and properly to be played by public financial aid
> under social
>
> insurance and public assistance in the process of rehabilitation; the
> determinative
>
> character of the reintegrative objective and the bearing upon it of 
> liberty,
> equality,
>
> property, and dignity--these basic and urgently pressing questions have
> never been
>
> sufficiently analyzed by the responsible officials in Vocational
> Rehabilitation.
>
>     Until this whole pattern is changed, until a great deal is done to
> reorient
>
> the training and functions of rehabilitation workers, to strengthen 
> guidance
> and
>
> counseling services, to improve techniques and focus rehabilitation
> attention on
>
> the placement of rehabilitants in competitive employment, and to remove
> legal, administrative,
>
> and other obstacles to the employment of the blind in the public service,
> the trades,
>
> professions, and common callings of the community--until that happy day
> rehabilitation
>
> of the blind is likely to continue to be measured in inches and not in
> miles.
>
>     Americans are familiar with the unhappy divergence between creed and
> conduct
>
> in many phases of our national life. Myrdal's observation of the disparity
> between
>
> social equality as a cherished political norm and our unequal treatment of
> the Negro
>
> is but one instance of a pattern that is all too pervasive. The field of
> blind welfare
>
> provides another, one which has been less noticed but is not less
> conspicuous or
>
> significant.
>
>                            FOOTNOTES
>
>     1. Gabriel, THE COURSE OF AMERICAN DEMOCRATIC THOUGHT 22 (1940).
>
>     2. Sumner, THE  CHALLENGE  OF  FACTS  AND  OTHER  ESSAYS 25 (Keller 
> ed.
> 1914).
>
>     3. For illustrative statements of this doctrine see, Johnson and
> Graham's Lessee
>
> v. McIntosh, 8 Wheat 543, 572 (U.S. 1823); Story, MISC. WRITINGS 74 
> (1835);
> Justice
>
> Matthews in Yick Wo v. Hopkins, 118 U.S. 356 (1886); Justice Cardozo in
> Palko v.
>
> Connecticut, 302 U.S. 319, 325, 328 (1937); see also Justice Murphy
> dissenting in
>
> Yamashita v. Styer 327  U.S. 1, 26 (1946).
>
>     4. Winston Churchill speaking at Fulton, Missouri, March 1946.
>
>     5. Under the general power of the states, often called the "police
> power," wrote
>
> Justice Barbour in City of New York v. Miln, 11 Pet. 102, 139 (U.S. 1837),
> "[I]t
>
> is not only the right, but the bounden and solemn duty of a State to 
> advance
> the
>
> safety, happiness and prosperity of its people, and to provide for its
> general welfare..."
>
> Said Justice Field in Barbier v.  Connolly 113 U.S. 27, 31 (1884),
> "[N]either the
>
> [14th] amendment--broad and comprehensive as it is--nor any other 
> amendment,
> was
>
> designed to interfere with the power of the state ... to prescribe
> regulations to
>
> promote the health, peace, morals, education, and good order of the 
> people,
> and to
>
> legislate so as to increase the industries of the state, develop its
> resources, and
>
> add to its wealth and prosperity."
>
>     6. See Meyer v. Nebraska, 263 U.S. 390, 399 (1923).
>
>     7. Truax v. Raich, 239 U.S. 33, 41 (1915). Justice Hughes there said,
> "It requires
>
> no argument to show that the right to work for a living in the common
> occupations
>
> of the community is of the very essence of the personal freedom and
> opportunity that
>
> it was the purpose of the amendment [14th] to secure."
>
>     8. Edwards v. California, 314 U.S. 160 (1941).
>
>     9. Truax v. Raich supra note 7; Allgeyer v. Louisiana, 165 U.S. 578
> (1897).
>
>     10. Merriam, THE NEW DEMOCRACY AND THE NEW DESPOTISM 84-85(1939).
>
>     11. Justice Chase in Calder v. Bull 3 Dall. 386 (1798); Chancellor
> Kent, 2 KENT.
>
> COMM. 1 (1827).
>
>     12. Braceville Coal Co. v. People 147 Ill. 66 (1893).
>
>     13. DeTocqueville, DEMOCRACY IN AMERICA 3 (1945 ed.).
>
>     14. tenBroek, ANTISLAVERY ORIGINS OF THE FOURTEENTH AMENDMENT (1951).
>
>     15. Barbier v. Connolly 113 U.S. 27 (1885).
>
>     16. DeSchweinitz, PEOPLE AND PROCESS IN SOCIAL SECURITY 56-57 (1948).
>
> (
>
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