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.
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.
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.
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.
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
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.
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.
rights freed us from the states power. Nowadays, most alleged
rights increase the states power over us.
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