Tuesday, January 22, 2013

Anti-discrimination law: Time for an honest reappraisal

There has been much harrumphing about the Iowa Supreme Court’s recent decision in favor of a dentist who fired his long-time assistant because his lust for her threatened his marriage.  The commentaries thus far have been one-sided, but the case invites serious re-consideration of antidiscrimination laws in general.

Anybody who criticizes antidiscrimination legislation risks being branded as a racial bigot, since the first major examples of such legislation were the civil rights laws of the 1960s.  The obviously noble objective of this legislation inhibits criticism of the means by which that goal was pursued.  

The basic problem with making discrimination illegal is that genuine laws are stated in terms of actions.  Some actions are prohibited, and those which are not prohibited are perfectly legal.  But discrimination is not an action at all; it is just a possible reason for or motivation of an action. 

An employer’s decision not to hire a particular individual or to fire that person,  for example,  could be for any number of possible reasons,  only one of which might be that the employer is prejudiced against some class of people of which that individual is a member.  Since the very same action may be legal or illegal depending on the motive,  the government (meaning prosecutors,  judges,  etc.) must decide whether the action was taken for good reasons or bad reasons. 

Such decisions take time.  In the case of the fired dental assistant in Iowa, it took three years for the case to get up to the state supreme court.

In other words,  antidiscrimination law means that a large number of private decisions are no longer final until a protracted and expensive process of litigation has taken place. Actions can be observed,   but motivations must be inferred.  This means that government officials must make highly subjective inferential decisions about the motivations for which actions took place. Ironically,  laws whose goal is to prevent arbitrary treatment by private persons radically increase the ability of powerful government officials to treat people arbitrarily.

Whether the horrible treatment of black people in America justified such an extreme remedy as antidiscrimination “law” is beyond the scope of the present discussion.  However there can be no doubt that the civil rights laws  have been a precedent that has been expanded beyond all reasonable limits.  There are now all sorts of “discrimination” that have been made illegal.

In the Iowa case,  the fired assistant was admittedly a top-notch and experienced worker for whom her former employer would give excellent references.  She should have had little difficulty in finding a good job with another dentist,  in which case her financial losses from losing her previous job would have been minimal. 

I do hope her lawyer was working on a contingency fee basis, as otherwise she will be out a serious amount of money. 

Nobody has a kind word for the Iowa dentist, and neither do I.  But even bad people can have a good case, and the Iowa Supreme Court should be congratulated for not extending antidiscrimination law even further than required by current statutes.  It would be even better if legislatures would reconsider the propriety and wisdom of making an endless list of discriminations illegal in the first place. 

This piece has run in the (Portland) Oregonian,  the Iowa City Press-Citizen, and the (Adrian, Michigan)  Daily Telegram.

Sunday, January 20, 2013

Should we repeal the Second Amendment?

Recent mass shootings  have put gun control on the national discussion agenda again but have not improved the quality of that discussion.    Control enthusiasts propose laws which do nothing to decrease the number of guns already floating around the country.  Nor do they deal with situations where weapons legally acquired are stolen or accessed by criminals or the mentally ill.  

Control opponents note that proposed laws will do little to cut down on mass shootings,  but are even more adamantly opposed to stronger laws.  And some argue that an armed population is necessary to prevent the development of a tyrannical government.  If such a regime were to rise,  in these folks’ view,   people who have guns could rise up and overthrow it.

Even if Congress were to enact reasonable new restrictions,  there is a good chance that the courts would find that they violate the Second Amendment.   We therefore might need to consider repealing the Second Amendment. (There is precedent:  the unwise 18th Amendment,  which outlawed alcoholic beverages, was repealed by the 21st Amendment.) 

Before any such repeal, however,  we need to re-examine the idea that an armed population could protect liberty by violently overthrowing a tyrannical government. 

As a student of history,  I cringe when  anyone refers to revolution as a desirable thing.  For several decades at Adrian College I taught courses on the Soviet Union,  and students would sometimes ask if  the Communists could be overthrown by a revolution there.    I would answer that I certainly hoped not,  since the U.S.S.R. was just beginning to get over the horrible results produced by the revolutions back in 1917 when the Communists seized power. 

The problem with revolution is that it is fairly easy to destroy a bad government but very difficult to replace it with one that is better.  We are currently seeing the results of revolutions and wars that overthrew tyrannical regimes in the Middle East. It is no surprise to me that the new regimes are themselves either tyrannies or, even worse, anarchies in which armed groups within the population kill each other in large numbers. 

Philosophers have long understood the dangers of revolution.  Spinoza, for example, warned that “[I]t is … dangerous to remove a king, even though it is perfectly clear that he is a tyrant.  For a people accustomed to royal rule, and kept in check by that alone, will despise and make a mockery of any lesser authority; and so, if it removes one king, it will find it necessary to replace him by another, and he will be a tyrant not by choice but by necessity.”  

Even revolutionaries like Marx and Engels,  who claimed that workers “have nothing to lose but their chains,” had to admit that their vaunted “class struggle” historically “ended, either in a revolutionary reconstitution of society at large,  or in the common ruin of the struggling classes.” (Emphasis added.)

Americans do not need guns in order to protect our liberties.   We have much better ways to protect ourselves.  Our Constitution provides for elections,  judicial review of laws enacted by Congress,  freedom of speech,  due process  and equal protection of law. The  best protection against tyranny is an educated and attentive public.   

The Constitution gives us many blessings, but we should not assume that it is perfect.  Our founders could not anticipate today’s weapons technologies.  It would be no disrespect for them if we repeal the Second Amendment, which  may be necessary if we are to have adequate control of guns.   

This article has appeared in the (Adrian, Michigan) Daily Telegram.