equality before the law

"From the fact that people are very different it follows that, if we treat them equally, the result must be inequality in their actual position, and that the only want to place them in an equal position would be to treat them differently. Equality before the law and material equality are therefore not only different but are in conflict with each other; and we can achieve either the one or the other, but not both at the same time."

- F.A. Hayek in THE CONSTITUTION OF LIBERTY, as quoted by Joan Kennedy Taylor in 7 Libertarian Review 30, at 33 (December, 1978).

Let us examine a favorite Patriot factual setting to see what happens when legal equality is forced on objects that belong, out in the practical setting, in their own class, free to commingle with other similar objects sharing the same approximate attributes, orientation, velocity, and dimensions. Why are bicycles, pedestrians, and buggies discouraged from using interstate highways where automobiles and huge semi's reign supreme at accelerated velocities? Because as a matter of practical concern, although, ARGUENDO, each form of transportation is legally entitled to some right-of-way access, in the practical setting each form of transportation operates best in its own protected path and status, free from each other's unique requirements. Do railroads really belong on automobile highways?

Even though both are particular forms of transportation that carry freight and people, by their nature they belong on separate tracks or paths. To have all forms use the same highway path, by legally forcing non-discrimination in effect between different forms of transportation ("It just isn't fair that I cannot use my bike on that highway!"), although initially it sounds legally impressive to get rid of discrimination, this actually creates hard damages out in the practical setting when high velocity vehicles weave their way around buggies and bicycles that non-discrimination legislation has forced into using the same track or status; bicycles and pedestrians belong on their own bicycle/pedestrian paths, sharing that path with transportation forms that operate under similar characteristics, and under similar velocity parameters. Not all particular forms of the same general classification belong in the same status or path, and when forced to cross over and commingle with each other, then damages occur.

Customized legislation (or DISCRIMINATION as some would characterize it by trying to cast an illicit derogatory inference on the subject even before the substance is addressed on its merits), providing for each particular form of transportation to operate in its own ideal tract and setting, at its own maximum velocity, prevents the damages that are caused by reason of improvidently commingling different particular forms. Correct PRINCIPLES OF NATURE, however invisible, operate across all factual settings, transparent to the particular application vicissitudes then under discussion.

And just as men and women were designed by their Creator to operate at different velocities and accomplish different objectives down here, although both are mammalian vertebrates and share similar dimensions, forcing both particular genders into the same track and status to accomplish legal equality will actually secondarily create hard damages out in the practical setting.

"The two sexes differ in structure of body, in the functions to be performed by each, in the amount of physical strength, in the capacity for long-continued labor, particularly when done standing, the influence vigorous health upon the future well-being of the race, the self-reliance which enables one to assert full rights, and in the capacity to maintain the struggle for subsistence. This difference justifies a difference in legislation and upholds that which is designed to compensate for some of the burdens which rest upon her."
- MULLER VS. OREGON, 208 U.S. 412, at 422 (1907).

"...history discloses the fact that women have always been dependent upon man. He established his control at the outset by superior physical strength, and this control in various forms, with diminishing intensity, has continued to the present. As minors, though not to the same extent, she has been looked upon in the courts as needing special care that her rights may be preserved... Though limitations upon personal and contractual rights may be removed by legislation, there is that in her disposition and habits of life which will operate against a full assertion of those rights... Differentiated by these matters from the other sex, she is properly placed in a class by herself, and legislation designed for her protection may be sustained, even when like legislation is not necessarily for men, and could not be sustained."
- MULLER VS. OREGON, 208 U.S. 412, at 421 (1907).

"A doctrinaire equality, then, is the theme of the [Equal Rights] Amendment. And so women must be admitted to West Point on a parity with men; women must be conscripted for military service equally with men... girls must be eligible for the same athletic teams as boys in the public schools and state universities; Boston Boys' Latin School and Girls' Latin School must merge (not simply be brought into parity); life insurance commissioners may not continue to approve lower life insurance premiums for women (based on greater life expectancy) -- all by command of the Federal Constitution."

- Paul Freund of Harvard University in HEARINGS BEFORE SUBCOMMITTEE #4 OF THE COMMITTEE ON THE JUDICIARY OF THE HOUSE OF REPRESENTATIVES, page 611, 92nd Congress, First Session [Discussing House Joint Resolutions 35 and 208 "The ERA"] (March and April, 1971).

[Source: Mercier - Invisible Contracts]