Pay Gaps and Other Freely-Determined Matters

Even if no one could explain or understand one whit of pay differentials, I cannot see any good reason to be concerned about them or to force them into equality by law or regulation. As long as pay differentials arise from voluntary, unforced and free exchanges, there is no case for government or outside parties of any kind to intervene forcefully to close the difference. If a differential is being caused by a non-market force, like a union of teachers or public employees who are being accorded legal privileges, then the remedy is to remove those privileges. If there are laws that cause or enforce unlawful discrimination (discussed below), then the remedy is to remove those laws and allow free market exchanges to occur. In all cases, the general remedy is to end government-mandated regulations that impair voluntary exchanges.

When people find situations of pay differences that bother them, the go-to solution should never be to demand government intervention except to end existing government laws and regulations that create unlawful discrimination.

There are two categories of discrimination: private and governmental. Private discrimination should be allowed, because it’s consistent with freedom. No one should be forced to associate unwillingly with others. If we abandon that principle, we abandon freedom. We simply must tolerate people who choose not to do business with us or with others that they exclude, for whatever reasons.

Government discrimination can be lawful or unlawful. This distinction is very tricky, meaning it’s not always easy to make a determination, and I do not pretend to have all the answers. I’m putting it out for further thought and consideration; and I’m assuming that a government exists.

I tentatively say that lawful discrimination occurs in constitutions approved by everyone or somehow otherwise legitimized by almost everyone who will be under the jurisdiction of the resulting government. A state’s constitution might allow only men to vote. Would that be lawful? This might depend upon who approved the constitution or maybe on who pays taxes or on the content of the constitution. The U.S. constitution as a compact of states left the matter up to the individual states, until the 19th Amendment was passed.

Only elected members of Congress get to pass a law. The rest of us don’t. Only people of a certain age or birthplace are allowed to run for certain offices. Others are not. There are many such provisions, and they are lawful if the constitution has been approved by procedures that are lawful, freely undertaken and carried out by a people. Do they remain lawful for subsequent generations? Is it possible even to regard any constitution as lawful? Spooner’s criticisms provide a strong “NO”.

Accepting this difficulty that has just been raised about lawful discrimination of a government, what then becomes a government’s unlawful discrimination? This is easier to discern. The general idea of unlawful discrimination is that some citizens are accorded privileges that others are not. For example, assume U and V are both law-abiding citizens. However, person U may not travel from Boston to New York but person V may, for no good reason other than U is favored and V is not. U may get a trial by jury, but V may not. U is granted bail but V is not. U may vote but V may not. U may be hitched up to the sewer system but V may not. U is made to pay 10% of his income in taxes but V is made to pay 30%. U may drink from a public fountain but V may not. U may leave his house after sundown but V may not. In some sense, unlawful government discrimination means the prejudicial application of its laws or the making of prejudicial laws themselves.

If a constitution builds in apartheid, segregation or discrimination along various lines like race, sex and religion, I’m not about to say that it’s lawful. It’s highly unlikely that such a constitution could be approved by everyone or nearly everyone who will be under its jurisdiction. As a matter of fact, the South African apartheid came about through legislative laws, not constitutional changes, but these laws were interpreted as being constitutional. South Africa had a doctrine of “parliamentary supremacy”. To quote one article about this: “Courts accepted that parliament could make laws that, expressly or by necessary implication, sanctioned discrimination and the deprivation of rights.”

South Africa’s apartheid and government comprised a wicked system of unlawful discrimination.

This is far afield from demanding that women who play professional soccer get the same pay as men.

Suppose a law outlaws a certain drug. Drug-users are stopped from buying and selling and using the drug, and they are punished if caught. Meanwhile non-drug users are unaffected, except that their taxes help support the enforcement. This law explicitly discriminates against drug-users and any drug business. (I am not talking about racial disparities that may or may not accompany such a law. Assume that everyone is of the same racial, religious, ethnic type.) Is this government discrimination lawful or unlawful? It appears to be unlawful. However, it’s been found to be lawful under the U.S. constitution and state constitutions. The basis is that there are very old and respected ideas of the government’s police powers and ideas of public safety.

There may be no way to resolve this conflict along lines of principle without examining its pragmatic dimensions. Freedom to use a drug is not unlike freedom to do many other things or not to do them. The costs and benefits fall mainly upon the person making the decisions; that’s a micro way of looking at it. However, that person is part of a family and a society; and on an aggregated or macro basis there are general problems that arise when drug use and misuse become widespread and prevalent.

Practically speaking, radical banning of drugs has proven to be futile and counter-productive. Their use seems to become even more widespread. The dangers from misuse rise. More dangerous drugs like fentanyl are introduced. Death rates from drug misuse soar. The family and social problems actually worsen significantly when the drugs are banned and when people are sent to prisons. Police are corrupted.

The public safety argument recedes in the face of these facts. The notion that drug laws are unlawful discrimination commands more respect.

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9:41 am on July 11, 2019

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