Today, my law school hosted a mini-​​panel on equality as part of the University’s ongoing “Diversity Week,” and as part of the Law School’s “Constitution Week.” Several professors spoke on their research into equality and the Constitution. All three took a Progressivist stance.

By Progressivist, I mean this:

It is one thing to insist that the law be applied equally to all. It is entirely another to insist that equality requires the unequal appli­cation of the law. For instance, if equal operation of the law has the effect of ‘disen­fran­chising’ some group (the poor; the uned­u­cated; the disin­ter­ested), then the law must be applied unequally in order to even out the effect. The argument is that ‘equal’ operation of the law ignores the contextual differ­ences between groups, and so equal operation of the law rein­forces those contextual differ­ences. Examples of contextual differ­ences appar­ently include wealth, education, color, history of oppression/​disenfranchisement, gender, &c., &c.

Here are just some of the problems:

1. The law does not exist to enforce “contextual equality,” or “equity” as it was termed by a panelist. The law exists to protect indi­vidual rights, and it accom­plishes this by setting objective rules for when and how government force may be used. The law is not a vehicle for enforcing income equality, or education equality, or weight equality.
2. This is not a country of groups. It is a country of indi­viduals. Groups do not have rights; only indi­viduals do. It would be silly indeed to insist that the law enforce ‘equity’ on an indi­vidual level, so this group­think is essential to the Progressivist’s position. How, as Ayn Rand asked, can one purport to be a defender of minority rights, if one ignores the rights of the smallest minority?
3. There is nothing relevant to legal deter­mi­na­tions (that is, deter­mi­na­tions of whether and how government force should be applied in particular instances) beyond that which is ethically relevant. The fact that one is rich does not affect one’s guilt for a murder. The fact that one is of Asian extraction does not affect whether one’s contract is enforceable. Only voli­tional acts are morally cognizable, and the law should concern itself with only those voli­tional acts related to the instant purported rights-​​violation.

In all, it was a pretty unfor­tunate display.