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Col Owens: Pursuit of more perfect union includes solving problem of social, economic inequalities

Justice is at the forefront of public debate today. Poverty and race issues clamor for attention and resolution. It is an appropriate time to think about bold policy options, including reparations for longstanding racial injustice.

What is justice? In A Theory of Justice (1971), John Rawls says justice involves a “principled reconciliation f liberty and equality.” Every person must have the equal right to basic liberties. Social and economic inequalities, on the other hand, must be open to all, via equal opportunity, but be distributed for the “greatest benefit of the least advantaged,” i.e., the poor.

Rawls’ analysis is useful. But in the context of poverty, experience suggests a broader framing of these issues. The real tension is between liberty, equality, and adequacy.

With respect to liberty rights, commonly understood as civil and political rights, absolute equality is the baseline. All enjoy the rights of free speech and due process of law, without prerequisite. One need not pass a literacy test or achieve a particular economic status to exercise them.

In social and economic matters, however, equality does not apply. We are born unequal. Indeed, inequality begins at conception, with genetic endowment. Other factors contribute at birth: parents’ economic status, educational attainment, health status, environment, racial and ethnic identity. In every aspect of our physical and social existence, we are unequal.

These inequalities are not chosen, are not the result of choices. Which is why the least advantaged – the poor – deserve highest priority.

Most people assume it’s the government’s role to secure liberty and equality of opportunity, while the private sector provides for our physical needs. But reality is more complicated. It is not enough that the poor receive priority. To receive true justice, they must achieve adequacy, of resource. They must achieve a minimal level of economic stability.

They, the poor, are engaged in a perpetual struggle to meet their basic needs, but often cannot do so because of their inherent limits, genetic and environmental, and because of “externalities,” public policies or legal strictures that block their succeeding.

Example: the poor should work. In fact, most do work. But they do not make enough money. The minimum wage is currently 60% of the poverty level. Workers cannot achieve economic stability on such earnings.

State and federal governments refuse to establish a more adequate minimum wage. Instead, they provide public benefits – Food Assistance, Medicaid, Earned Income Tax Credit, Child Care Assistance – to help fill the gap.

These benefits do help. But they are inadequate, highly stigmatized, hard to get and keep, and inflexible. They are not an adequate substitute for earned income.

The poor intersect with the law constantly, in every area of life – employment, housing, health, education, family, criminal justice.

Poverty law encompasses all these areas, because they all impact the poor, for better or worse. Including public policy. Because of the law’s impacts on the poor, it is critical that they have a voice, that they are represented in the development of the law.

Race is closely correlated with poverty. The Constitutional guarantee of equal protection of the law ensures equal liberty rights and equal opportunity. When these are absent, or inadequate, or when past injury or damage have not been rectified, other remedies must come into play. Affirmative action. Reparations.

Click image to order book.

The concept of reparations raises a lot of eyebrows but need not be controversial. The areas of social life where increased support would make a huge difference in African American quality of life are education, health care and employment. These largely determine almost everyone’s quality of life. And they correlate highly with success in almost every area of endeavor.

Research conclusively documents the racial disparities in these arenas. In my years of service on the Covington School Board we dealt constantly, although not very successfully, with the achievement gap in performance between white and African American students. Racial disparities regarding almost every qualitative health measure are also well documented. Racial disparities regarding income and wealth are profound. Current research reveals that the average net worth of whites is over 10 times that of African Americans.

We have never come to grips with our 400-year history of racism and its lasting harm to African Americans. In the current debate, Black Lives Matter has become the rallying point regarding race-based realities, in the criminal justice arena and for economic justice.

These issues must be addressed. Substantial increases in targeted investments in all these areas are necessary, if we are to progress in our pursuit of a more perfect union.

We have much work to do.

Col Owens is a retired attorney from the Legal Aid Society of Greater Cincinnati. He teaches Poverty Law at NKU’s Chase College of Law. His memoir, Bending the Arc Toward Justice (Cincinnati Book Publishing, 2020) can be purchased at colowensbooks.com.

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