“The natural distribution is neither just nor unjust; nor is it unjust that persons are born into society at some particular position. These are simply natural facts. What is just and unjust is the way that institutions deal with these facts.”
-- John Rawls, A Theory of Justice, 1971
Shortly after the Emancipation Proclamation took effect, on January 1, 1863, Congress passed a new conscription law which placed all male citizens aged 20-35 and all unmarried men between 35-45 into a lottery. However, in addition to not including Blacks (who were exempt on account of their lack of citizenship—though many would fight with honor throughout the war, including the famed Massachusetts 54th Regiment), the draft law allowed those who could afford to hire a substitute or pay the government $300 to avoid enlistment.
Less than 24 hours after the first lottery took place, New York City erupted into five days of violence that would later be termed the “New York City Draft Riots.” These riots—fueled by deep-seeded racism of working-class white immigrants toward free blacks—not only targeted black New Yorkers, but also directed their destructive ire on property of the wealthy. Over five days, the riots claimed over 100 lives.
The Draft Riots were about a very simple principle—justice. Recent discoveries in evolutionary biology and psychology have shown that humans are born with an inherent sense of fairness. We feel injustice in our core and rebel against it as an affront to our dignity as equal persons.
In the Draft Riots, the idea that mere wealth could exempt a man from doing his part to combat common scourges—slavery and the dissolution of the Union—was too much to bear in silence. Certainly the working class of 1863 knew, as we know now, that wealth “buys” all sorts of advantages in life. However, when that advantage is made manifest in such a brazen manner (you cut a check and you are free to go), it is a recipe for unrest.
150 years after the Civil War, America continues to struggle with how to share common burdens. Some advocates and legislators, including Rep. Charles B. Rangel (D-NY), believe that the draft needs to be reinstated for fairness purposes, since a disproportionate number of low-income Americans choose to enlist in our now all-volunteer armed forces. As Rangel stated, “Reinstating the draft and requiring women to register for the Selective Service would compel the American public to have a stake in the wars we fight as a nation. We must question why and how we go to war, and who decides to send our men and women into harm's way.”
The sharing of society’s burdens goes well beyond the battlefield. It includes contentious questions about how we deal with trash pickup, such as the fight over the 91st Street waste transfer station down the street from my apartment on Manhattan’s Upper East Side. It includes racially charged disputes about the siting of affordable housing developments, which often are populated by low-income people of color, in wealthier, whiter communities, such as Chappaqua, N.Y. or Wellesley, Mass. And it includes how to ensure that all people can afford quality health care—in part by requiring healthy people to purchase insurance to broaden risk pools and avoid adverse selection problems that would drive up costs for all.
There is immense political pressure at the local level to embrace NIMBY reasoning and foist our fair share of a particular burden onto other neighborhoods/communities. As a result, courts have been forced to step in to establish “fair share” principles. As the New jersey Supreme Court stated in the famed affordable housing case of Mount Laurel, “Almost every [municipality] acts solely in its own selfish and parochial interest and in effect builds a wall around itself to keep out those people or entities not adding favorably to the tax base, despite the location of the municipality or the demand for varied kinds of housing.” Southern Burlington County NAACP v. Township of Mount Laurel, 67 N.J. 151, 171 (1975).
The Court went on to declare, in its second Mount Laurel decision, that “municipalities, at the very least, must remove all municipally created barriers to the construction of their fair share of lower income housing.” Southern Burlington County NAACP v. Township of Mount Laurel 92 N.J. 158, 258 (1983) (emphasis added); see also Berenson v. New Castle, 38 N.Y.2d 102, 110 (1975) (“There must be a balancing of the local desire to maintain the status quo within the community and the greater public interest that regional needs be met”).
Similarly, in Philadelphia v. New Jersey, 437 U.S. 617 (1978), the Supreme Court of the United States struck down a New Jersey law which prohibited the importing of any solid or liquid waste which originated or was collected outside the State. The Court declared that a State may not, “isolate itself from a problem common to many by erecting a barrier against the movement of interstate trade.” Id. at 628.
Ultimately, in order to determine what is right, what is good, what is just, John Rawls’ seminal “veil of ignorance” approach provides ample guidance. Recognizing, as Rawls does, that so much of where we are in life is on account of accident of birth—i.e. luck—we must not only accept that we need to do our part to solve society’s most pressing problems, but we must affirmatively celebrate that effort as a means of building strong social bonds between communities.