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. 

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

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 18^th Amendment,  which outlawed alcoholic beverages, was repealed by the 21^st 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.   

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

A tax guarantee for Nike: An attractive bad idea

Governor John Kitzhaber wants the legislature to authorize him to guarantee that the basic formula under which Oregon taxes Nike’s income will not change for a certain number of years.  Initial reports suggest that this idea is a no brainer, or as Kitzhaber put it “an easy call” that will sail through the legislature.  

Looking only at the short term consequences, giving Nike such a guarantee is indeed an easy call.  The company will be building a new facility somewhere and is more likely to do it in Oregon if it knows that the state will not change the current rules under which it is taxed.   The expansion will bring jobs for construction workers and additional jobs at Nike itself.  It will be good for the Oregon economy and will increase tax revenues. 

Basic principles,  however,  suggest that giving this assurance to Nike will be a bad idea. 

The equal protection of the law is a fundamental safeguard against high-handed, discriminatory, arbitrary treatment by government officials.   Granting special treatment to selected corporations flies in the face of the whole idea of equality before the law.  It also widens opportunities for bribery of public officials by private interests.  And over the longer haul,  states which play these kinds of games with corporations will probably not come out ahead financially.

Of course Governor Kitzhaber’s proposal is not as bad as the more usual deals where selected corporations are exempted from paying some of their property taxes as an inducement to build a facility in a given state or city.  Here all Nike wants is to keep on being taxed only on its Oregon sales,  a rule which currently applies to all corporations and not just Nike.  But it still will have a planning advantage over other companies which have not been granted similar assurances against future changes.

Nike’s insecurity here is just one example of  a larger problem faced by corporations and by individuals when the laws are continually being changed.  James Madison wrote about this back in 1788 in The Federalist No. 62:  “The internal effects of a mutable policy are … calamitous.  It poisons the blessing of liberty itself.  It will be of  little avail to the people that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man,  who knows what the law is today, can guess what it will be tomorrow.”

Perhaps Americans spend too much time debating what changes should be made in our tax laws and not enough time worrying about the bad consequences of making constant changes in those laws.  It just compounds this uncertainty problem when even the  rules that currently exist do not apply to all corporations. 

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This piece has appeared in the (Portland) Oregonian,  the (Corvallis, Oregon) Gazette-Times, and the (Adrian, Michigan) Daily Telegram.

Review of James MacGregor Burns book

I put my review of this book on Amazon.com back in 2010,  but am posting it here for more convenient access.
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James MacGregor Burns' newest book, Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court, will not increase his reputation.

The basic premise of the book is that the Supreme Court invented the power of judicial review out of whole cloth back in 1803, in Marbury v. Madison, without any grounding in the actual Constitution.

It is true that the Constitution does not explicitly grant the courts the power to strike down laws which violate its rules. But it does provide that "This Constitution, and the laws of the United States which shall be made in pursuance thereof . . . shall be the supreme law of the land . . . ." (Article VI.) Note that it only refers to laws which have been made "in pursuance" of the Constitution.

A contemporaneous analysis by Alexander Hamilton, a member of the Constitutional Convention which drafted the present document, can be found in The Federalist Papers, #78:

"The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of the courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing."

The Federalist Papers were written by Madison, Hamilton, and Jay and published under the penname "Publius" in the newspapers of New York, attempting to convince New Yorkers to ratify the proposed new Constitution. They are considered a very authoritative indication of the intentions of those who drafted the Constitution.

The very first Congress elected under the new Constitution proposed what became the Bill of Rights as the first 10 amendments to the new document. They did this to satisfy critics who opposed ratification because the original document did not have a bill of rights. And the very first Amendment, which set the tone for the whole set of amendments, states that "Congress shall make no law ...." doing a whole lot of things.

What possible purpose would have been served by adding this language to the Constitution if the courts were required to enforce anything enacted by Congress no matter how flagrantly it came into conflict with the Bill of Rights?

Judicial review is so firmly established in the clear language and intent of the Constitution and in over two centuries of precedent that Burns is reduced to a desperate recommendation for how to put an end to it. He wants the President Obama to defy the Court the next time it makes a decision he doesn't like and announce (in effect) that "John Roberts has made his decision; now let us see him enforce it." (My wording, modeled on President Jackson's famous fight with Chief Justice John Marshall, not Burns'.) The president would say that he would respect judicial review only if its supporters formally amend the Constitution to explicitly provide for it. Of course this would take years to do.

Obama, who knows a lot more about constitutional law than Burns does, is highly unlikely to follow this recommendation. But I am not sure that Burns himself would care for the uses to which his own logic could be put if we elect a right-wing president sometime.

Such a president could, with much more grounding in the language and history of the Constitution than Burns has, proclaim that Roe v. Wade, the original abortion rights decision, did not have a legal leg to stand on. Our right-winger would announce that Roe v. Wade would no longer be enforced unless abortion advocates formally amend the Constitution to explicitly provide for it. Again, this could not be done overnight, if at all.

Burns needs to remember that we need to be cautious when we articulate principles, since they have a way of coming back to haunt us.

Tax Increases: Don't Support Politicians Who Say "Never"!

No magic formula can tell us how to vote.   This year, however, we should vote against any candidate who promises never to raise taxes.   Whatever the other merits of Mitt Romney and most Republican House candidates,  we should not vote for any of them since they have accepted the pledge popularized by Grover Norquist that they will never increase taxes.

The Norquist Pledge  makes it harder to reduce taxes when circumstances permit.  No rational legislator would vote for tax decreases if he or she knew that it would be impossible to raise them again if circumstances made increases advisable?   (Perhaps that is why Congress agreed to the Bush tax cuts only if they would “sunset” after a few years.)

The Norquist Pledge also precludes taking advantage of good opportunities.  Barack Obama never took the pledge, but perhaps his  biggest mistake in 2008  was to promise never to raise taxes on the middle class.

Obama was unable to support a single-payer medical insurance system, since it  would require raising taxes on everybody (there not being enough rich people to pay for it just by “soaking” them).    The result was Obamacare,  an administrative mess which leaves millions of Americans uninsured. Obamacare will cost Americans a lot more than a simple Medicare-for-all system would have cost. 

The Norquist Pledge also makes our system more rigid and therefore more likely to break when stressed.  Most people would rather pay higher taxes than to crash the economic system within which we live,  which would impoverish everybody.

Perhaps we should never vote for candidates who make any kind of  iron-clad promises.  As Edmund Burke,  speaking to the electors of Bristol in England classically put it,  “Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.^”   

Better by far to emulate Burke:  “Their  [his constituents’] wishes ought to have great weight with him; their opinion, high respect; their business, unremitted attention. It is his duty to sacrifice his repose, his pleasures, his satisfactions, to theirs; and above all, ever, and in all cases, to prefer their interest to his own. But his unbiased opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living.”

President Obama,   in his recent acceptance speech,  didn’t renew his promise not to raise taxes on the middle class.  He did accuse Mitt Romney of planning to do so.  Casual listeners might think this was a promise not raise taxes himself,  but he didn’t actually say this.  This is progress compared with his unwise promise in 2008!

Until most Republican politicians reject the Norquist Pledge,   voters should reject them out of hand, at least at the national level.  Who knows, with any luck the 2012 elections may produce another “Goldwater landslide” like took place in 1964, when voter rejection of a perceived extremist produced such a heavily Democratic Congress that it was able to pass Medicare and the Voting Rights Act. 

What could a re-elected Obama and strong Democratic majorities in both houses of Congress do?  Well,  how about they repeal Obamacare (with enthusiastic Republican support) and then enact Medicare-for-all.   They could name the new insurance program in honor of Grover Norquist, who helped make it possible.    

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This article has run in the Portland Oregonian and in the Adrian (Michigan) Daily Telegram.

Paul Ryan and Ayn Rand: Guilt by Association?

New York Times writer Paul Krugman recently attacked Republican vice presidential candidate Paul Ryan, claiming that Ryan “gets his ideas largely from deeply unrealistic fantasy novels.”   The specific novel Krugman had in mind was Ayn Rand’s bestseller,  Atlas Shrugged.

Of course there is nothing surprising about Krugman attacking a Republican,  since his columns in recent years have sounded more like they were written by a Democratic spin-doctor than by a Nobel Prize winning economist.  But his attack on Paul Ryan does a major injustice to the novelist Ayn Rand.

My interest in Ayn Rand and her ideas goes back nearly 50 years.  Krugman, sneering at Atlas Shrugged,  claims “the book is  a perennial favorite among adolescent boys.”  But,  he adds, “Most boys eventually outgrow it.”  However my first encounter with Atlas Shrugged was not as an “adolescent boy”: but as a 22 year old graduate student at Johns Hopkins University. 

Rand was giving a lecture at Johns Hopkins,  and I read Atlas Shrugged to get some background before her talk.  The book horrified and depressed me.  I was not impressed with Rand as a person, either.  I vividly recall how she got unnecessarily nasty with a student who challenged something she had said, announcing  rather snottily that she had not come to Johns Hopkins to engage in debates.  Years later,  when I learned she was a chain-smoker, this did not take her stock up in my book, either.

But even nasty people can have interesting ideas.  For many years I taught a special class at Adrian College in which students read and discussed Atlas Shrugged. The students were some of the brightest and most interesting on campus.  One of them,  who considered himself a Socialist Workers Party fan,  took the class because his adviser told him it would “test his values.”    And I think it did.

Krugman’s put down of Ayn Rand forgets that all political discourse is a mixture of sense and nonsense.  Learning how to tell which is which is an important skill,  and discussing a book like Atlas Shrugged can be an excellent educational tool because the book is loaded with both a great deal of sense and a great deal of nonsense. 

My own take is that Rand’s ideas about “the virtues of selfishness,”  interpersonal relations, and religion (she was a militant atheist) were quite wrong.  But she was on to something really important in her distinction between the power of the sword and the power of  the purse, a distinction which left wingers tend to ignore or to blur.  The 64 page speech by John Galt, which Krugman correctly identifies as the novel’s centerpiece, does a masterful job of sharpening this distinction. 

Does Krugman really believe in guilt by association?  If so, not only Paul Ryan but also other immensely intelligent people like Alan Greenspan and Hillary Clinton would stand convicted. Both were very interested in Ayn Rand’s ideas in their younger years.  And clearly none of these people swallowed Rand’s ideas uncritically. 

It would be nice if Krugman would go back to being an economist and get out of the spin-doctoring business.  Even as a spin-doctor, however,  he should avoid writing more columns featuring excessive generalizations about an important novelist. 

A Larsonian explanation of "Entanglement"???

A Larsonian explanation of “entanglement”?

Paul F. deLespinasse

Corvallis, Oregon

Author’s note: This tentative analysis  is work in progress.   I put it  forward for discussion and criticism.

The theoretical universe of Dewey B. Larson rests on a scalar space-time progression that,  in the context of a 3-dimensional Space Arrested Reference System (SARS) or a 3-dimensional Time Arrested Reference System (TARS),  moves “outward”  at the speed of light.   A SARS is established by material atoms whose motions cancel the outward progression of space and form aggregates.  A TARS is established by cosmic atoms whose motions cancel the outward progression of time and form aggregates.     

In the Larsonian universe what we conventionally regard as “space” is nothing more than locations in a Space Arrested Reference System.    As in Einstein’s universe,  nothing can change its location in this “space” faster than the speed of light.

Entangled photons, however,  appear to “communicate” with each other instantly no matter how widely they are separated.   This is considered something that cannot be explained since it appears to violate the speed of light limit accepted by Einstein and Larson.

When a photon originates from a location in space,  in Larson’s system it does not change its location in space-time but is swept outward at the speed of light  relative to a SARS centered on the material aggregate from which it originated.  The direction in the three-dimensional SARS taken by a particular photon is determined by probability considerations.

Two photons originating simultaneously at the same space location and therefore possibly entangled will therefore remain at the same location in the space-time progression no matter how widely separated they become in the context of a Space Arrested Reference System.  There is therefore no need for them to “communicate” through the SARS, and no violation of the speed of light limit for such communications, since they remain in the same location in the space-time progression.

Comment:  It is unclear to me how this explanation of entangled photons, if it is correct, could apply to entanglement of  particles which have mass, since in the Larsonian system such particles do change their locations relative to the progression, unlike photons which remain in the same location in the progression and are swept along relative to a SARS or TARS by the speed-of-light  progression.