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:
- 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.
- 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?
- 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.