Coercive Rights
December 10, 2002
The U.S. Supreme Court is hearing arguments about
affirmative action, and will probably wind up making the
subject more confused than ever, pending confusion worse confounded by a
future Court. There is no way through the semantic swamp of the whole
area nebulously called civil rights.
Affirmative
action means preferential treatment for nonwhites (and sometimes
women). Its an interesting ethical question, but it shouldnt
be a legal one.
The term civil
rights itself used to mean rights of citizens the right to
marry or own property, for example which the state was bound to
respect. Now it means rights the state should enforce. And some of these
rights are highly questionable, such as the
right of access to others private property.
In language, logic is
often the victim of history. Because the first American civil
rights laws were passed for the benefit of blacks, the phrase has
come to stand for legal or quasi-legal favoritism for blacks and other
racial minorities. It now sounds odd if a white male talks about his
civil rights even though the original idea was strict
racial impartiality.
The expansion of civil
rights brings the state into many areas which used to be safe from legal
coercion. Once upon a time proprietors as well as customers used to be
free to decide whom they would do business with. I didnt have to
buy from you, and by the same token you didnt have to sell to me.
But if today you refuse to sell to me, I can bring the state into it by
claiming to be a victim of racial discrimination.
Discrimination
used to be a good word, meaning a good trait the ability to tell
things apart. We discriminated between, not
against. But today, if you discriminate between such
obviously different categories as the sexes, you may be charged with
discrimination against.
In the era of bogus rights, some women even clamor to be
admitted to mens golfing clubs. By their logic, women should also
be allowed to play in mens golf tournaments and men in
womens. Under the present system, both sexes suffer
discrimination against. Isnt open competition on equal terms what
civil rights is all about?
Well, no. You have to
learn the semantic ropes. Nobody knows what its all about, except
state power. If you are white, you may swallow hard when you hear about
a new civil rights bill, because you can presume its
directed against you, your property rights, and your freedom of
association. Civil rights are legal vampires that drain the
blood from real rights.
The claim that third
parties are somehow injured by free exchanges is a new twist in the bogus
rights revolution. Fast-food chains are now being sued on behalf of the
obese children of frequent patrons. I asked a leading advocate of these
suits why he didnt favor prosecuting the parents themselves. He
answered that it was more efficient to sue the companies.
I noticed that he
didnt say it would be wrong in principle. In the mental universe of
bogus rights, very few things are wrong in principle. Once we establish
the principle that a child has a right not to be fat, we have built a new
superhighway for lawyers and state bureaucrats. And nobody can be sure it
wont lead to his door.
Once the state got into
the business of enforcing (rather than merely observing) civil rights,
definitions began to collapse, new rights kept popping up
(along with correlative obligations), the state invaded everything, and
people began having to worry about whether their customary activities
were still legal and lawyer-proof. Freedom is becoming a mere residue: it
refers not to God-given, inalienable rights (since rights are
now created by the state), but to the shrinking circle of things we are
still allowed to do.
After visiting America
in the 1830s, Alexis de Tocqueville marveled that Americans were pretty
much free to do whatever they pleased. They took for granted the right to
start a new church, business, or charity without seeking the permission of
the state. Bogus rights had not yet begun to devour real rights.
Our original rights
freed us from the states power. Nowadays, most alleged
rights increase the states power over us.
Joseph Sobran
|