Reinterpreting Government Neutrality

[Extract]
One of the central principles of traditional liberal constitutionalism is that of government neutrality. This principle, as it is commonly understood, enshrines the idea that governments, being bound by the rule of law, ought to be impartial; that is, they ought to treat all their subjects equally, regardless of race, colour, sex, gender, religion, etc. Perhaps the most widely known example of this principle being enshrined in a state’s constitutional law is the ‘equal protection’ clause contained in the Fourteenth Amendment to the United States (‘US’) Constitution, which provides that no state shall ‘deny to any person within its jurisdiction the equal protection of the laws.’

In this essay, I examine the principle of government neutrality and, in particular, its traditional interpretation and application by philosophers and judges within the classical liberal tradition. I argue that the principle is frequently unsatisfactorily interpreted and applied in important respects, sometimes giving rise to unjust results. In basic terms, the problem arises from the principle’s inability to accommodate the impact on individual rights and freedoms of entrenched institutional and social power structures. As a result, government neutrality simply fails to be neutral. Government bodies, by focussing their efforts on treating subjects with neutrality in each individual case, actually perpetuate pre-existing institutional biases.