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.
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