In his Executive Order of January 21, 2025, President Donald Trump fulfilled one of his campaign promises by terminating the Biden administration’s diversity, equity, and inclusion (DEI) policies. He announced a new era of what he called merit-based opportunity (MBO). He saw MBO as the best way to enforce civil rights and equal opportunities, reflecting a political philosophy best illustrated by Harry Jaffa’s argument that equality is the bedrock of “a just and generous Conservatism.” The Executive Order states:
These civil-rights protections serve as a bedrock supporting equality of opportunity for all Americans. As President, I have a solemn duty to ensure that these laws are enforced for the benefit of all Americans.
This return to “true” equality of opportunity was widely celebrated by many Republicans who were overjoyed to see the end of DEI and a return to common sense—hiring the best person for the job. All opportunities henceforth were to be earned “based on merit.” That certainly makes more sense than allocating opportunities based on race or sex as had been mandated under DEI. However, for those who agree with John Locke’s argument that “the end of law is, not to abolish or restrain, but to preserve and enlarge freedom,” a further question must be asked—is “merit-based opportunity” compatible with liberties such as freedom of contract, freedom of association, and freedom of conscience and belief? This question concerns both libertarians who recognize the importance of individual liberty, as well as conservatives who—like M.E. Bradford—do not agree with Harry Jaffa’s argument that equality is a conservative principle.
In light of the tyranny of DEI, some might argue that the fact that it is over (or, at least the Trump administration has declared it to be over) should suffice. It may seem churlish to criticize MBO because it is, at least, a step in the right direction. Anything has to be better than DEI. But taking liberty seriously means keeping our eyes ever on the goal of liberty, and to that end Hayek’s analysis of the equality problem is worth revisiting. He analyzes this problem in detail in the chapter on “Equality, Value, and Merit,” in his book The Constitution of Liberty.
Hayek begins by rejecting the concept of “material equality,” pointing out that “the equality before the law which freedom requires leads to material inequality.” If we value individual liberty, we must uphold equality before the law, and this in turn leads inevitably to material inequality. He follows this by recognizing that most classical liberals are not troubled by material inequality, in itself, as long as they see the merit that explains that inequality. For example, most people would not be troubled by observing that the brain surgeon earns more than the janitor, or that the industrious acquire greater wealth than the lackadaisical. These types of inequality appear to be merit-based, and therefore explicable and justified. But Hayek rejects that analysis too, arguing that the term “justified” or “unjustified” has no application to the outcomes of human action or the value people assign to different skills and talents.
Most people will object not to the bare fact of inequality but to the fact that the differences in reward do not correspond to any recognizable differences in the merits of those who receive them.… This, however, is an indefensible contention if by justice is meant proportionality of reward to moral merit. Any attempt to found the case for freedom on this argument is very damaging to it, since it concedes that material rewards ought to be made to correspond to recognizable merit…
The luck egalitarians, for example, do not accept that a brain surgeon deserves much more pay than a janitor “based on merit.” As they see it, the surgeon did nothing to deserve his intelligence and training, he was just lucky. For all you know, the janitor may be even more intelligent than the surgeon but just never had the opportunity to train as a surgeon.
This point becomes even more pertinent in light of the prevailing theory that reality is a social construct. Those who see reality as socially constructed have a view of merit that presumes industriousness and laziness are just social constructs. They see such interpretations of merit as biased from the outset, as merely a sham designed to accord favored people with merit for no reason other than their social privilege or racial privilege. By the same reasoning, people who are deemed to be “lazy” are said to be merely suffering from legacies of historical injustice, while in fact their triumph over adversity should be seen as true merit.
In this intellectual and ideological climate, anyone who argues that opportunity should be allocated based on merit becomes a hostage to fortune. In practice, MBO will be no different from DEI because we have no control over what the decision-makers regard as “merit.” If everyone has a duty to hire “the best person” for the job, does that mean all those merit-based H-1Bs from the third world should be allowed to flood first world countries where MBO is king? If someone starts a business and decides to hire his own brother as his manager for no reason other than that he loves his brother and enjoys working at his side, does that violate the “merit-based opportunity” principle? Hayek strikes at the heart of this problem:
The proper answer is that in a free system it is neither desirable nor practicable that material rewards should be made generally to correspond to what men recognize as merit and that it is an essential characteristic of a free society that an individual’s position should not necessarily depend on the views that his fellows hold about the merit he has acquired.
Hayek gives the examples of a talented musician or a beautiful actress who become wealthy because people pay to hear or see them, while someone working very hard in a factory will never approach such levels of wealth. By what definition of “merit” would that be described as a society which enforces “merit-based opportunity”? Hayek argues that, “In all these instances the value which a person’s capacities or services have for us and for which he is recompensed has little relation to anything that we can call moral merit or deserts.” Trump’s Executive Order declares that opportunities will be based on factors such as individual initiative, excellence, hard work, aptitude and determination. That is certainly better than choosing based on race and sex, but how will decision-makers determine who has the best aptitude, works the hardest, or is most determined? What if that person turns out to be a failure despite having been “the best person for the role” based on his “individual initiative”? Some people produce great results effortlessly—they could never be described as the hardest or most determined workers, but they outperform competitors who slave away all hours of the day.
Hayek argues that we cannot force decision-makers to choose the best person “based on merit” because we do not know what “merit” would yield the greatest success in a position or the results that would be most valuable to the person paying for it. We can evaluate a person’s previous achievements in a role we might deem relevant, but this involves subjective value judgments and cannot be said to be “based on merit.” Further, there is an element of risk involved in many enterprises, for which “merit” based on past performance cannot answer questions about ability to make decisions on appropriate risks. Hayek argues that, “For the same reason that nobody can know beforehand who will be the successful ones, nobody can say who has earned greater merit.” It follows that,
A society in which the position of individuals was made to correspond to human ideas of moral merit would therefore be the exact opposite of a free society. It would be a society in which people were rewarded for duty performed instead of for success, in which every move of every individual was guided by what other people thought he ought to do…
One could argue that MBO is, in any case, the appropriate standard in the context of Trump’s Executive Order because it relates to federal agencies and those that are federally funded, and that, as long as we are governed by state agencies, MBO is certainly a better standard than DEI. Two points may be made in answer. First, MBO may seem superficially to be a better standard but in the application of egalitarian ideologies the new acronym will be the same as the old acronym.
Second, in the long run the only effective solution to state tyranny is to limit the scope of state power, not to try to temper it with merit-based opportunity or any other such equality enforcement. The term “merit,” just like the term “equality,” is inherently vague and malleable by whichever bureaucrat has power to enforce it. The goal should be to scale back or, better still, repeal the civil rights regime, not further entrench it through one acronym after another.
