Varieties of Civil/Social Rights

The transparent dishonesty with which quotas and preferences have been instituted and maintained -- a dishonesty reaching into the highest court in the land, as the Weber case [United Steelworkers of America v. Weber, 1979], among others, demonstrates -- has produced cynicism and bitterness. As another insult added to injury, airs of moral superiority on the part of those perpetrating deception add to a galling sense of grievance among many people who are part of the non-preferred population. That all of this has done relatively little for the genuinely poor in ghettos and barrios across the United States is part of the painful irony of the situation.

Thomas Sowell, Affirmative Action Around the World, An Empirical Study [Yale University Press, 2004, p. 164-165]

"Civil Rights" has remarkably different meanings depending on who is speaking. As examined elsewhere, "Civil Rights" can even be construed to mean nearly the opposite of the original conception. Here, four layers of different meanings are examined in succession:

  1. Ayn Rand, Milton Friedman, Thomas Sowell, Libertarianism: Individual rights of liberty and property. Individuals and businesses are free to do anything that does not involve violence, fraud, negligence, or breach of contract. Neither government nor other individuals may coerce or prevent persons innocent of those offenses from doing anything they wish. No such thing as "social justice" or "distributive justice." Discrimination practiced by government is, but by private persons or businesses is never, a wrong. Employees who don't like how they are treated by a business can quit. Government is not considered to have the right, duty, or ability to do anything to improve the social or economic condition of the country. Laissez-faire capitalism, free enterprise, and the free market are alone regarded as able to produce wealth and prosperity for the "greatest number." Also makes the argument that historical evidence shows that mere bigotry and unsafe or unwanted working conditions cannot survive in the free market. The argument would be made from this point of view that anti-discrimination laws violate the clause of the Fifth Amendment to the United States Constitution, which says, "nor shall private property be taken for public use, without just compensation." Since an attempt to eliminate discrimination through legislative social engineering is putting private property to "public use," it would fall under what is called the "Takings" clause.

  2. Shelby Steele, Civil Rights Act of 1964: Same as above with exception that in its commerce or employment businesses cannot practice discrimination on specified grounds (e.g. for reason of race, religion, sex, ethnic or national origin, age, sexual preference, etc.--depending on the laws of a jurisdiction). Employment, however, may be based on qualifications alone, with no special preference for particular groups because of past discrimination or present situation. Social justice or distributive justice are valid concepts, but they can be implemented only on the basis of merit and character. No "group rights" or entitlements because of past injustices. Government is considered to have the duty and ability to act in the areas of education, job training, and social services to improve the qualifications of disadvantaged groups and persons. Accepts socialistic principle that workers are not really free to reject employment and that therefore private business, like government, is limited in its powers to contract with employees--because workers need jobs, they have rights vis à vis employers in respect of working conditions, insurance, non-discrimination, etc. (depending on laws of jurisdiction). This viewpoint, and the following, do not accept the argument or the historical evidence that mere bigotry and unsafe or unwanted working conditions cannot survive in the free market. The argument would be made from this point of view that anti-discrimination laws are necessary but that affirmative action laws, regulations, and practices, violate the Fourteenth Amendment to the United States Constitution, which says that no State "shall make or enforce any law which shall...deny to any person within its jurisdiction the equal protection of the laws." Even if it were true that some groups are morally entitled to compensation for historic wrongs, this would still deny to existing, and individually blameless, persons, the "equal protection" of the laws. Nor is it possible to make everyone who has "benefited" from some past injustice liable to pay. What "injustice," for example did the most economically successful ethnic group in American history, the Jews, benefit from? Instead, the Jews succeeded in spite of suffering from injustices themselves. Does everyone who benefited from the persecution of the Jews owe them something? Or just because they don't need help, it all doesn't count? Who owes more to black people? The Arabs who invented the slave trade and probably killed more Africans than the whole Atlantic commerce in slaves? The black African kings and chiefs who profited from the slave trade by selling their fellows to Arabs and Europeans, and who actually protested when Britain and France outlawed slavery and began to suppress it? Or perhaps the Arabs who still enslave and forcibly convert black Christian rebels in the south of the Sudan--sometimes even castrating them? It is all an absurd direction of inquiry, and a grotesquely biased one if it overlooks the role of the Arabs, past and present.

  3. Affirmative Action: Same as above with addition of positive preferences in hiring for members of those minority groups regarded as having suffered from previous discrimination (e.g. women, African Americans) or as being economically disadvantaged for any reason at the present time (e.g. recent Latin American immigrants). Basic principle still one of merit, that all else being equal in qualifications, members of such groups should be hired first. Sometimes, however, principle seems to extend to one that preference should be given to members of such groups even if their qualifications are not quite equally as good. Principle also seems occasionally applied in reverse to prevent "over-representation" of successful minority groups (e.g. East Asian, such as Chinese and Japanese Americans or recent Cambodian and Vietnamese immigrants). Government requires efforts of businesses without "representative" work forces to improve minority representation. Some uncertainty and debate about just what is required and at what point businesses may be actionable for discrimination if their efforts to improve representation ("goals and timetables") are inadequate. Vague application of "group rights." The flashpoint of controvery, indeed, comes when successful minority groups are regarded as too successful. Jews aleady had the experience in the past of quotas against them because there were "too many" of them qualified for universities, etc. Now it is East Asians who are vastly "over-represented" at institutions like the University of California and who have occasionally suffered from secret, but real, quotas against them [1].

  4. Quotas: All groups considered to have suffered from any injustice of any kind are regarded as having "group rights" entitling them to jobs and other advantages equal to their numerical proportion in the general population. "Merit" or "qualifications" dismissed as mechanisms ("institutional racism," etc.) for preserving the privileges of those with power. Appeal may be made to socialistic principles that everyone has a right to a job and to various social benefits regardless of income (the rejection of "classism") or situation (e.g. citizenship or even legal residence). Since private business cannot be trusted (the "institutional racism" of capitalism) to hire workers regardless of spurious "merit," government may be needed to compel business or to take over from it to produce social justice. Achievement, economic or political, is never "earned." Everyone (or every group) has a right to an equal share of everything and thus must simply be given their share. Wealth is regarded as occurring naturally in a fixed quantity, to which no one has any more right than anyone else. These views, of course, would turn the entire economy of a country into a contest of political rent-seeking (see following essay, in Part Four). No one would have any reason to actually be productive, when anything that was not "needed" or "deserved," in the judgment of the government, could be taken away and given to the politically successful. Consequently, such an economy would collapse into the poverty and failure of the Soviet Union or into the stagnation and resentment evident in many Western European countries--all of which have been based on the principle that the government knows best how economic benefits should be distributed.

Political Economy

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Copyright (c) 1996, 2004 Kelley L. Ross, Ph.D. All Rights Reserved

Business, Government, & Freedom of Association

(after Ayn Rand, Thomas Sowell, Milton Friedman, etc.)

Unspoken assumptions of all socialistic criticism of capitalism, as well as of American court decisions since the New Deal, are that businesses in some sense are an arm of the government, that doing business is a privilege that we need not allow except under certain conditions, and that the public has a right to be served by businesses in certain ways that impose duties on them that we do not impose on other individuals in private association. All of the assumptions are wrong and even self-contradictory. Business is regarded as a privilege because the public "allows" businessmen to make a living and profit. On the other hand, it is an additional unspoken assumption that everyone has a right to a living or a right to the services offered by businesses, which means that the activities which businesses can carry out with our permission are nevertheless things they owe to us. We need both the jobs offered and the services rendered by businesses, therefore we have a right to them. It is a paradoxical right, however, to make someone owe us something that they are under no obligation to offer--since, so far, no one is compelled to go into business. It is also a paradoxical requirement to impose conditions on services offered to us that actually damage the ability of people to offer them well. So we act as though they owe us services that we actually prevent them from doing well.

There is a lurking sterile, negative resentment in all this, that, instead of being grateful for the enterprise that provides abundance and opportunity hitherto unknown in human history, we dislike the persons and motives of those who do the real driving work in the system. By supplying us good things, we think they should be doing it for us instead of for themselves, even while we are busy doing things against them and (we think) for ourselves that inevitably damage their living and their ability to supply us good things. This is the basic craziness of socialist thinking, but, despite the fall of communism and decades of failure of socialist nostrums, it is still strongly with us. What it inevitably leads to is faith in government. If businessmen get disgusted with hassles and recriminations against them, they can just quit or move elsewhere, leaving us with nothing. But it does leave us with government, and presumably government can be compelled to do anything or provide us with whatever we want or need--and it is certainly the obligation of government to do that as it was never the obligation of any businessman. We might even think that was the trouble with businesses: they should have been like government, responding to our needs and rights, but they weren't. Now we can get government to provide all good things in a disinterested and fair way.

Unfortunately, governments existed long before capitalistic business, and governments even existed that believed their purpose was disinterested benevolence for the needs of the people (as in Confucianism or with certain Christian rulers); but those governments never produced the wealth and opportunity that capitalism did, and they all maintained a hierarchy based on the difference between the patronage of the rulers and the vassalage of the ruled. Those forms were reproduced in the neo-feudalism of the Soviet Union; and they are reproduced in our own society whenever anyone from the IRS, the DEA, or social services (or many other government boards, bureaus, and agencies) shows up to remind people of their civil duty, to punish them for doing something in harmless privacy that the government disapproves of, or to minister to their helpless dependency on the benevolence of society. The paternalism of distant authoritarian benevolence becomes the maternalism of smothering, intrusive, petty dictatorship, "for your own good." This is the deeply reactionary nature of socialism: it looks for a society of archaic peonage and dependence. The Soviet Union collapsed under the weight of its own contradictions (as Marx himself would have said), but the use of any socialistic assumptions merely produces different degrees of dependence, contradiction, and vassalage.

A basic error in all socialist resentment is that businessmen are always thought of as "them" and not "us." We need "them" for jobs because we never think of "us" as providing our own livelihood. That is the fatal conceit, for it starts us at a disadvantage of dependency already; and if we are to be helplessly dependent on something, it may as well be benevolent government as profit seeking businesses. The key to capitalism, however, is that business is not "them." "Opportunity" does not mean that we can go to "them" to get what we need. "Opportunity" means that we take care of ourselves and that business is just a set of private, free transactions between individuals that have nothing to do with government and that are governed by the same moral rules as any other transactions of private association. This is the principle of Freedom of Association applied to business as much as to private relationships. Capitalism therefore does not mean benevolent government, just government that gets out of the way....but is ready to be called in against force or fraud in business dealings as in any other dealings between persons. Government exists to secure the moral enabling conditions of the free market--the rights of person, property, and contract. Limiting the freedom of business transactions in arbitrary or moralistic ways inevitably gives rise to a "black market" because people continue to trade in ways that they regard as innocent and inoffensive, or at least that they regard as providing things they want, even if the law forbids it.

Business is not "them" most importantly because anyone can start a business. All one needs is a bit of capital. That can be gotten in any number of ways. From savings, from family, from friends, from banks, from investors, etc. Even groups that historically couldn't get loans because of discrimination, especially Jewish, Chinese, and Japanese immigrants in America, were able to start businesses by pooling their small resources into revolving credit associations that could finance businesses one at a time. The result of socialist hostility to business, however, loading it with regulations, licenses, taxes, etc., is to make it increasingly difficult for just anyone to start or run businesses. The fruit of hostility towards "them" is to actually make us more dependent on "them" than ever before. This begins the slide back into feudalism.

Political Economy

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Copyright (c) 1996 Kelley L. Ross, Ph.D. All Rights Reserved

Alpine County and
Equal Representation

High in the Sierra Nevada mountains of California, not far south of the popular resorts at Lake Tahoe, is the small, isolated, and aptly named County of Alpine. Over mountain passes (7740, 8573, 8050, & 8314 feet) and two-lane roads, often closed in winter, Alpine is isolated from the from the rest of the State and communicates more easily with Nevada, to which flow the branches of the Carson River, which originate in the County. The County Seat is Markleeville, whose population, as given on the sign at the edge of town, is only 157. The year 2000 American Automobile Association California, Nevada TourBook, which only lists Markleeville (p.136) for its historical significance (no AAA approved accommodations), gives the population as 100. But Markleeville has grown in recent years. In 1962 the population was only 50.

With its tiny population Alpine County has virtually no influence on political power today. However, this was not always the case. Prior to 1964, the California State Senate was based on districts which gave to the large rural areas of Northern and Eastern California much greater representation than would be warranted by their population. There were not as many State Senators as Counties in California (40 vs. 58), but the Senate districts tended to reflect the large concentration of counties in rural Central and Eastern California, which were historic artifacts of, if anything, the Gold Rush population of the State.

In 1964, the United States Supreme Count ruled that such districts were unconstitutional. In the group of "Reapportionment Cases," similar to Reynolds v. Sims (1964), the Court held that representation in State Legislatures had to be substantially based on population. Today, the California State Senate districts simply and precisely combine two State Assembly Districts, which are apportioned by population (gerrymandered, of course, but that is another question).

The famous principle of the Reapportionment Cases was "One Man, One Vote." Chief Justice Earl Warren wrote, "Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests" (Gray v. Sanders, 1963). State legislative districts not based on population violated the 14th Amendment right of citizens to "equal protection of the laws."

The irony of these decisions, however, was that State legislatures had merely been following the principle of the organization of the United States Congress, where the House of Representatives is based on population but the United States Senate is based on the accidential territorial extent of the various States. North Dakota thus has only one United States Representative, but still two Senators, just as many as the vastly more populous New York and California. This gives rural interests, and Eastern interests, a powerful and disproportionate voice in the U.S. Senate. The decisions, and the statement by Warren just quoted, thus involve an implicit criticism of the structure of the U.S. Congress itself. That could not be overturned as unconstitutional, since it is actually in the Constitution, but the preference of the Court for ever more purely democratic institutions was obvious -- leaving Congress itself as an embarrassing anomaly.

But is this preference, and the holding of the Reapprortionment Cases themselves, appropriate? No. The Reapportionment Cases end up violating the 14th Amendment, not enforcing it, and the holding violates another significant provision of the Constitution. The 14th Amendment is violated because pure democracy does not afford "equal protection of the laws" to minorities. The interests of the more rural, and now a minority, population are not protected.

Justice Warren exposed himself as deeply misunderstanding a founding principle of the Constitution. The Declaration of Indpendence had asserted that "Governments are instituted among men to secure these rights." Thus, American govenment is supposed to protect the rights of citizens. Rights are not subordinated to numbers, and the danger always looms in a democracy of the "tyranny of the majority." Neither the Declaration nor the Constitution mentions "democracy." Warren should be seen as endorsing the tyranny of the majority; and he can be seen as simply dismissing the rights of minorities with his "not trees or acres" remark. No, government is not supposed to represent "trees or acres," but it is supposed to protect the rights of people who may own, or derive their livelihood, from those "trees or acres."

Contrary to Justice Warren's statement, the cities, and the economic interests of cities, do elect representatives, when the population of the country has come to be overwhelming urban. And urban interests are not rural interests. Most especially, rural interests tend to be property interests, since the rural population tends to make its living on the land, through farming, ranching, mining, logging, hunting, fishing, etc. Not only is the urban population less concerned about this, but a powerful urban interest now exists, in the form of "environmentalism," to suppress all economic activity on as much land as possible.

In recent years logging and mining have been the targets of well publicized political campaigns, and ranchers in the West have had to deal with vandalism by environmental groups, activities that the press could well characterize as terrorism, if the largely urban media were even interested in publicizing any of it. Similarly, the "Endangered Species Act" has been used to prohibit activities on an owner's own land, supposedly to preserve the habitat of endangered species. Ironically, it sometimes turns out that the habitat was actually due to human activity, and is lost when the land is left idle. And the act is more directly self-defeating when ranchers know that it is better to quickly kill and bury unusual animals rather than leave them to be discovered by some hostile bureaucrat or Sierra Club busybody.

Rural Western interests seemed so consistently under attack that for some years the reaction was called the "Sagebrush Rebellion," but the rebellion seems to have petered out to mostly sullen, passive resistence. Meanwhile, anti-firearms activists, whose concern is to disarm citizens and institute a police state, can think of no more disparaging a charcterization of pro-firearm forces than as "hunters" (rather than as, in fact, enemies of fascist statism). They formally allow that firearms may be legitimately used for hunting, even while they clearly despise hunters and the rural culture in which hunting is common. That the 2nd Amendment has nothing to do with hunting is carefully ignored -- until they decide to argue that it is about the National Guard.

Not only is the 14th Amendment violated by the Reapportionment Cases, but Article IV, Section 4 of the original Constitution is also violated. This says, "The United States shall guarantee to every State in this Union a Republican Form of Government." There is virtually no case law about the clause, and nowhere is "a Republican Form of Government" defined. What should be clear from reading the words of the Founding Fathers, however, as considered elsewhere, is that by a "Republican" government they did not mean a pure democracy. A pure democracy leads quickly to the tyranny of the majority, a problem to which Earl Warren seems to have devoted little thought, despite seeing the end of majority-voted segregation laws in his lifetime. Instead, a Republic is devised to do what the Declaration of Indpendence says is the purpose of government, to protect the natural rights of individuals. A democratic element (e.g. the House of Representatives) protects the majority, but other devices must be used to protect minority interests. No one put particular trust in mere "paper barriers" (in Madison's words) like the Bill of Rights. There needed to be institutional structures to oppose power with power. The Separation of Powers was the most significant aspect of that, but so was the difference between the House and the Senate, and even the provision for Trial by Jury, where twelve ordinary citizens could stop the government in its tracks.

In time, with a fashionable and naive preference for democracy, these structures have been undermined. The Separation of Powers has been all but destroyed, in common application, by the vicious fiction of "Administrative Law". The 17th Amendment, by mandating the direct election of U.S. Senators, removed any direct influence that State Legislatures had in the Federal Government. U.S. Senators can ignore their State governments completely and rely on the chance to appear good to the voters on just that one day every six years when they have to be reelected. And, of course, Trial by Jury has been destroyed as a check and a balance against government by "good German" judges who tell juries that it is their duty to obey orders and do what they are told by the judge.

The tendency of history, then, has been to destroy the "Republican" nature of American government and to substitute for it institutions that at once seem more democratic but also tend to cede to government such absolute and arbitrary powers that it is increasingly able to deceive, buy, or, in many cases, simply ignore both the will of the majority and the rights of political minorites. If the California legislature tomorrow decided to condemn all of Alpine County and turn it into a park, or a closed wilderness reserve, not only would the Courts not stop it, since the exercise of eminent domain for parks or wilderness is well established, and not only would other rural areas (fearing for their own future) have too little political power to stop it, but a large and vocal urban population, with influential friends in the press, would exult in this triumph for Nature and the Earth (against a few reactionary and fundamentalist yokels). Most of the urban population, for all their political muscle, would neither know nor care.

Little Alpine Country, then, which certainly owes its existence to a larger population and significance in the Gold Rush days of the 19th century, thus represents the sort of useful device of "Republican Government" that is now in dangerous disfavor. Geographically isolated, its political isolation is testimony to the folly of the 20th Century in promoting a unique combination of democracy and despotism, i.e. the populist tyranny of fascist demagogues, which is essentially the spirit of politicians like Barack Obama. Nothing is now so consistently reviled by the anointed (academic and media) than the protection of individual rights (as opposed to the rights of the "community"), and especially property rights -- except for "welfare" rights.

Again, Justice Warren got it wrong, legislators do represent, after a fashion, "trees or acres" because the trees and acres are owned by people who have property rights to them. An urban population, which only wants property rights to rented apartments (taking them away, as squatters, from the landlords), doesn't care about that and has no particular concern to protect property owners. The owners are thus disenfranchised, and their rights, upon which the Nation was founded, are belittled, undermined, and sometimes entirely stripped away.

Since this was written, the ironic election has transpired where George W. Bush, because of his ability win a great many States with lower population, was able to win the Presidency in 2000, despite narrowly losing the popular vote. This is structurally possible since Electoral Votes are a combination of the number of each State's Senators and Representatives. Thus, each State, no matter how small, will have at least 3 Electoral Votes, while a State that may have three times the population of the smallest State may only have 5 Electoral Votes. This rewards a large geographical distribution of support, which Bush certainly had. The same thing happened in 2016, when Donald Trump was elected. The result, of course, is that Democrats want to abolish the Electoral College. This would require a Constitutional Amendment, which would require ratification by 3/4 of the States. That is unlikely to happen, since a State like Wyoming would be disenfranchising itself. However, tricks and sophistries can always be cooked up.

The Corruption of Civil Rights and Civil Law

The Problem of Democracy

Political Economy

Philosophy of History

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Copyright (c) 2000, 2015, 2020 Kelley L. Ross, Ph.D. All Rights Reserved