Just read ‘Justice Souter’s Class” in NYTimes. The piece not only points out some interesting insights into this most private of justices, it highlights what keeps asserting itself as the primary misunderstanding that I believe is defining the current American political psyche.

What too many people don’t want to take the time to understand is that Freedom and Equality are essentially opposed to each other. Though the relationship is not syllogistic, he more individual freedom a society has, the more inequality will result. It is not sullogistic because decreased freedom does not necessarily equate to an increase in freedom.

This is why the country is having such a difficult time, for example, coming to terms with regulation of the financial industry. How do we, as a matter of public policy, regulate without stifling creative economic and cultural incentive? The problem hinges on attempting to tie a practical result with a theoretical belief. As Americans, we all have faith in freedom’s ability to create: jobs, economic acitivity, wealth. This is why many want to believe in the trickle down effect. The more wealth, the more to go around, the better for everyone. It just seems to make sense.

But history in this case is stubbornly consistent. When tremendous wealth is created, individuals are incentivised to strive towards wealth, create as much as they can, for themselves. Even when an individual feels compelled (and make no mistake, to have an incentive is an emotional pressure on an individual) to give back to the society that has provided her or him with the opportunity to create wealth or realize one’s dreams it is a very rare individual indeed that will be completely governed by a theoretical belief in equality. History shows us that without an outside force compelling the wealthy to share more equitably those in a position of weakness will be exploited. Even to the point of structuring society to disincentivise those not in a position of power, thus defeating the purpose of freedom (the more complete the freedom, the more self defeating).

Think laizzez faire economic realities of the industrial revolution in this country, the exploitation of workers by large companies, requiring them to work in company towns and shop in company stores; the corporate inclination to notcleanup after themselves; why quit using lead in paint and fuel or children’s toys?

Some regulation necessary if society is to live up to our other theoretical value, equality. How do we, as a matter of public policy, incentivise fairness and equality without stifling creative economic and cultural incentive? How do we insure that people have a fair chance to pursue happiness and wealth without stifling the freedom that we all believe makes that pursuit possible?

Looked at in this way (without a predetermined bias/irrational faith in favor of complete freedom or strict equality) clearly a balance between freedom and equality needs to be in essence legislated. In the past many societies wanted to lay this regulating function at the steps of religion, even today some would claim that a return to ‘traditional values’ is the answer, along with a pretty radical freedom. Again history argues against this, we all know that traditional ways of doing things don’t really align with our modern understanding of what our values require (here I am harking back to Souter’s comments about the need for eontemprorary understanding and interpretation of what in law would be precedent and what her I refer to as tradition). Traditional values at times in our history justified slavery, indentured servitude, separate but equal, execution by hanging, driving without seat belts, DDT on our land and in our food, steroids to enhance ahtletic/entertainment performance.

So our real debate is how best to regulate: it’s a balancing act. In terms of law, it’s like a living thing, full of contradictions and inevitably subject to unpredictablility. In fact our regulation needs to recognise and embrace the unpredictability- that’s part of freedom (that’s why planned economies don’t work, a healthy economy by definition needs to be flexible enought to react freely to unforeseen circumstances).

Constructing public policy becomes a balancing act and continous debate. The economy reflects the reality of our nature replete with contradictions.

What should be clear is that too much faith- in freedom or equality- is like believing in magic, at some point your purpose is defeated, the trick becomes old and no one is fooled anymore.

Once we see greed thwarting the public good we know we are regulating too little. Once we see good ideas being stifled we know we are regulating too much.