Coercive 'Rights'

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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). It’s an interesting ethical question, but it shouldn’t
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 didn’t have to buy from you, and by the same token
you didn’t 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 men’s
golfing clubs. By their logic, women should also be allowed to play
in men’s golf tournaments – and men in women’s. Under
the present system, both sexes suffer discrimination against. Isn’t
open competition on equal terms what civil rights is all about?

Well, no. You
have to learn the semantic ropes. Nobody knows what it’s 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 it’s 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 didn’t favor prosecuting the
parents themselves. He answered that it was more efficient to sue
the companies.

I noticed that
he didn’t 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 won’t 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 state’s power. Nowadays, most alleged
“rights” increase the state’s power over us.

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Joseph
Sobran (1946–2010), conservative turned libertarian, was one
of the most significant American writers. See his
website
and his
intellectual journey
.

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