Voting Rights for Racists: The Case for Legalized Discrimination in Government Jobs

 

In the past, I have argued that discrimination on the part of private businesses should be a legally protected right. How could an educated person such as myself, who is part of a racially mixed family, support "hate?" I believe that opponents of Israel should be allowed to use BDS despite the fact that it is an anti-Semitic conspiracy designed to discriminate against Jews and ultimately to offer moral cover to people who wish to murder Jews. Universities should be allowed to accept black students over white ones regardless of qualifications. For that matter, schools should be allowed to operate programs and create spaces solely for people of color. I may find these practices to be morally repellent but then again I am morally opposed to Aryan coffee shops and strip clubs. These are examples of social crimes where patrons of a business do not cause anyone physical harm but are encouraged to inculcate values that I believe are ultimately detrimental to a well-functioning society and yet I still believe that they should be legal.  

As a classical liberal, I accept the horrific doctrine that people should be allowed to openly support socially destructive ideas to the point that they cause actual harm. The reason for this is that I assume that the tradeoff is going to be even worse. For example, while strip clubs teach men to objectify women and not get married, they are not going to cause nearly as much harm as government-licensed Puritans armed with a modesty checklist who rely on government power as opposed to articulating a case to society (as well as themselves) why specific modes of dress (or the lack of which) should be opposed. If I can defend the right of businessmen to operate strip clubs, I fail to see how I can reject the notion that businessmen have the right to be racists and openly discriminate in their hiring. 

For a long time, I have accepted a distinction between discrimination carried out by private businesses and that of the government. This distinction increasingly seems strained to my mind. Imagine an election between evil billionaire Monty Burns and Lieutenant Uhura (may the memory of Nichelle Nichols be a blessing). Burns wins the election by openly appealing to the racism of voters. Furthermore, we are able to find enough voters to cover the margin of victory who confess that they voted for Burns not because they supported tax cuts for billionaires and the elimination of government oversight over nuclear power plants over more funding for linguistics and space travel but only because they refused to vote for blacks. As such, it is an objective fact that Uhura was discriminated against based on her skin color. Does this mean that what the voters did was illegal and the election should be overturned?

It is important to keep in mind that voters have the right to be idiots. Democracy is not about giving voters the best leaders. It is about giving them the leaders they deserve and giving it to them "good and hard." The racists who voted for Burns deserve whatever Burns will do to them and the liberals who voted for Uhura do not deserve much better as they agreed to be part of the same country as the Burns voters and have not tried to secede. 

Once we acknowledge that voters have the right to discriminate against political candidates, why not allow their racist elected officials to fulfill the wishes of their racist electorate by discriminating who is hired for government jobs? Why should Burns not have the right to fulfill his campaign pledge of paying for his billionaire tax cut by firing black teachers if that is what his voters elected him to do?

It should be noted that there are limits to this line of thinking. For example, it would not apply to the criminal justice system. If the district attorney would, as his closing argument, choose to lead the jury in a round of singing "kill the n-word," the conviction of the black defendant could be overturned. There is a difference between voters and jurors, mainly that jurors do not have the right to be irresponsible and follow their own bad judgment; they are required to follow a clear set of legal instructions given to them by the judge who in turn is bound by a code of legal ethics. Attorneys, unlike political candidates, are not allowed to use a wide variety of dishonest tactics to manipulate jurors. Defendants, regardless of their skin color, have a right to a fair trial and the burden of proof is on the prosecution and the judge to make sure they get one. Similarly, blacks cannot be kept from voting as they have a right to vote. 

All of this is distinct from a job, whether in the private or government sectors, as no one has a right to a job. By contrast, people have the right to discriminate and hand jobs to people for reasons that have nothing to do with qualifications or actual life choices. Your height and looks are based on your genetics. You never got to choose them and they are unlikely to be connected to your job performance. That being said, the reality is that people are discriminated against due to being short and ugly. It is certainly unfair but that is life. Why should we treat discrimination based on skin color any differently?                

Does Reading Make Someone Less Likely to Be Evil?

 

"I know that having a good vocabulary doesn't guarantee that I'm a good person," the boy said. "But it does mean I've read a great deal. And in my experience, well-read people are less likely to be evil." ...

There are, of course, plenty of evil people who have read a great many books, and plenty of very kind people who seem to have found some other method of spending their time. But the Baudelaires knew that there was a kind of truth to the boy's statement, and they had to admit that they preferred to take their chances with a stranger who knew what the word "xenial" meant, ... (Slippery Slope, p. 95-96).

I confess that would I be more willing to trust someone who knew what xenial meant or, for that matter, had read Lemony Snicket's A Series of Unfortunate Events. This is because they have something in common with me. As such, it is plausible to imagine that they would be able to better empathize with me, which would make it harder for them to betray me. Of course, this line of thinking can easily be manipulated by con artists, who know that they can trick people into trusting them by convincing them that they have the same taste in art or religion or belong to the same ethnic group.  

Does reading actually help make someone less likely to be evil? If you are a humanities person, whose life and profession center around books, there is much at stake in being able to claim that this is so. Consider the question, are plumbers less likely to be evil? The issue is irrelevant as society requires plumbers in order to function regardless of their moral quality. If studying to become a plumber had the same effect on one's moral development as spending a year on Korriban communing with the force spirits of ancient Sith Lords then so be it. It is not so obvious that society needs history and literature teachers if we cannot assume that they will contribute to the moral development of students. As such, those of us in these professions need to either be able to make a convincing case that we promote morality or confess that what we do is merely a hobby for people of leisure, much the same as gardening or video games.   

This renders book readers vulnerable to moral hazard. People's actual morality is likely to be inversely proportional to their belief in their morality. The more you think that you are a good person, the more likely you are going to be willing to justify doing bad things to your opponents. If they oppose you, they must be bad people who deserve what is coming to them. Why should a few bad people be allowed to stand in the way of all the wonderful things a good person such as yourself can do for the world? How truly dangerous must a person be whose sense of self is wrapped around books and needs to believe that these books have made them better people? 

The moral hazard goes even further. If people who read are morally superior then it makes sense that they should rule over the plumbers as philosopher kings. This goes to the heart of liberal arts. Historically, liberal meant "free." The liberal arts were those things that could be studied by the wealthy leisure class, who did not have to worry about developing a useful trade. To engage with the liberal arts itself was a justification to rule. The aristocrat, freed from the constraints of earning a living and allowed to study things simply to develop their souls, deserved to rule. Since they did not need to worry about money and personal gain, they could act for the "common good," which they learned through the liberal arts. This aristocratic ethos was later embraced by Roussoueauians and eventually Marxists. Neither of these ideologies are really about empowering the people or the working class. They are defenses for rule by intellectuals.    

There is a plausible case to be made that reading helps people expand their circle of empathy. Reading fiction and history allows one to enter the heads of people who are different from ourselves and recognize their humanity. If you can be emotionally moved by space aliens, perhaps you can be moved by the plight of refugees or even your next-door neighbor. This ability to empathize, though, would still require that the reader not believe that their reading is making them more empathetic. Otherwise, we fall back down the moral hazard hole, leaving us merely with someone who knows how to employ the rhetoric of empathy to claim the moral high ground and the right to rule. 

Has reading made me a better person? I enjoy reading as a means of coming to a better understanding of the world around me. My self-education through books has continued even after I failed to earn my doctorate when I could no longer assume that books would lead me to a position of respect and authority. Perhaps, my reading can be defended on the grounds that it has saved me from the sin of worldly ambition. Regardless, I will return to my joyously Sisyphean quest to get through my ever-expanding reading list.    

Civil War, Surrender, or Secession

 

I am often criticized for being a secessionist. I believe that states should be allowed to leave the United States. For that matter, I think it is a person's right to stand on their roof, raise their flag and declare that their house is now an independent country with the right to not pay taxes or obey regulations on the gambling, drug, and medieval surgery den in operation inside. Granted, there are all sorts of practical problems with actually doing this. I am talking about what a person has the right to do, not whether this is really a good idea. 

What most people miss is the extreme moral price to be paid for not accepting the moral and legal right to secede. Mississippi and California are both states that greatly differ from the rest of the country. Take the state that you sympathize least with. Imagine that the governor of that state got on national TV and declared that unless the Constitution was rewritten to suit them, they will secede from the United States. This would leave us with three options; we could fight a civil war, surrender to their demands, or accept their secession. 

The civil war option becomes deeply problematic if the secessionists have managed to seize military bases, gained the backing of elements of the military, or even the recognition of foreign countries. It is important to keep in mind that the American Civil War was made possible because the South had three months from December 1860, when South Carolina voted to secede, to March 1861 when Lincoln became president, where they could act with complete impunity. Not only did the lame-duck Buchanan administration not begin to call up troops to invade the South but they allowed the South to seize federal forts and armories. This would become important for the coming war as the South lacked the industrial capacity to manufacture the weapons it needed. 

Even if the state had no weapons with which to fight but simply blocked the roads with kindergarteners, could such a one-sided civil war be justified? Are we prepared to call a soldier who ran over a kid with a tank, an American hero who saved the Union? Note that if our opponents know that we have moral qualms about killing children then they will not hesitate to put their kids in danger with the confidence that we will back down and they will win even though they are outgunned. One thinks of the example of the Palestinians, who offer a master class on how to cynically put children in danger in the hope of a propaganda win. 

If we are not prepared to commit mass murder, we can surrender and give the states what they demand in order to remain in the Union. Mississippi might want an end to gay marriage and for abortion to be made a federal crime. California might want to make it a federal crime to misgender someone or impose a green plan on the rest of the country. Are you willing to consent to whichever one you find most distasteful? 

At a practical level, it is absurd to hear liberals and conservatives complaining about what the other side has just done. Take the example of the Dobbs decision. You liberals knew for years that conservatives were the kinds of people who would do such a thing and yet you agreed to be part of the same country as them. By not seceding, you signed a Faustian bargain in which you agreed to allow for the end of Roe in exchange for conservatives not breaking up the Union. If you had threatened conservatives to either pass an amendment to protect abortion or you would leave, would you have been confident that conservatives would have given in? 

By not openly demanding secession, you supporters of abortion demonstrate that your protests are nothing more than political theater. You do not really believe that women are going to be turned into baby-making slaves. If you honestly thought this was the case, you would be demanding secession and threatening total Hobbesian civil war if your demands were not met. 

Extreme anti-abortion antics, while insincere, pose their own risks as conservatives might come to take them seriously as opposed to merely an opportunity to raise money and allow activists to feel good about themselves. If conservatives conclude that civil war with the left is inevitable, they might decide that their best chance of winning lies with starting the war with a preemptive first strike.    

If you find it implausible that states would threaten secession as a weapon to blackmail the rest of the country with in order to get their preferred policies enacted, it is important to recognize that early American history was dominated by the widely recognized fact that the South would only stay in the Union as long as slavery was protected. As such abolitionists operated under the limitation that they could not deny the fact that, if they ever were able to come close to turning their ideals into actual policy, the South would simply secede.

As the North and South developed very different trajectories regarding slavery, the South started demanding that the federal government not only refrain from eliminating slavery but actively work to advance it. For example, the Fugitive Slave Act made a mockery of state's rights when it came to the right of states to not tolerate slavery. Finally, with the victory of Abraham Lincoln and the Republican Party in 1860, the South decided that they would not even accept being subject to a party that merely claimed to oppose slavery in the territories and they seceded.

The United States was founded on a Faustian bargain to tolerate slavery in the South. Considering this, what is so implausible about imagining that either allowing red states to ban abortion or allowing blue states to protect it might be a modern version of such a Faustian bargain that is necessary to keep this country together? If you are not willing to openly support secession then you cannot play innocent as to the price you have to be willing to pay in order for there to be a United States. The only America you can expect to have is one run according to the values of your opponents. Any attempt to balk on this reality leads, in practice, to secession if not the truly nightmarish possibility of civil war.     

Once we recognize that the options of civil war and surrender are so morally reprehensible, we are left with only one option, secession. I am not saying that secession is going to be easy. To be clear, my ideal situation would be for the country to remain whole under my terms. As a matter of pragmatism, I am willing to make some concessions to my opponents. That being said, there are people out there whose vision for society is so markedly different from mine that we can make no pretense that they ever will be able to make the necessary concessions to have a united country that would be mutually acceptable. This would leave, as the only options, fighting a civil war or allowing for the United States to be divided into a collection of new countries from the diverse groups, from the left to the right, that currently make up this deeply divided nation. 

Why Conservatism Needs a Classical Liberal Foundation: A Response to Yoram Hazony

 

Yoram Hazony provides a useful example of the importance of the unwritten texts by which we read an author. On paper, there is much that I agree with Hazony. We are both traditionally observant Jews, who have been heavily influenced by Christian thought and therefore greatly respect serious Christians. We believe that religion of some sort will inevitably form the background of any political system and that any claims to be able to completely separate Church and State will prove unworkable or a cynical ploy to bring someone's preferred religion through the backdoor under a different name. (It is important to keep in mind that the various forms of leftism that have evolved since the Enlightenment down to modern Wokism are religions with their own metaphysics and a metanarrative about the interplay of good and evil throughout history and should be held to the same First Amendment standards as any traditional religion.) Both of us wish to protect small traditional communities from the larger forces of modernity. 

One difference between us is that Hazony is clearly more willing to use the power of government against corporations that choose to pursue a leftist agenda. Even here my opposition is somewhat muted. I am torn as to how conservatives should respond to a left that no longer accepts traditional classical liberal norms. If leftists are willing to use government when they win elections to reshape culture in their image, it is only fair that conservatives respond in kind. 

It is the issue of classical liberalism, though, that highlights the key problem I have with Hazony. His recent book, Conservatism: A Rediscovery, is an attack on fusionist conservatives like me who presuppose a commitment to a classical liberal unwritten constitution. Hazony blames the mainstream American conservative movement as embodied by William F. Buckley and Frank Meyer for not being willing to take a harder line in defense of religious values, having already conceded to the left the premise that religion was a private matter with no role in the public sphere. This turned the culture wars into a decades-long negotiated surrender where only the timeline for the secularization of society was ever in question. If conservatism is about preserving something, it would seem that the only thing conservatives have been able to conserve is the power of big business. This might have been a reasonable strategy at a time when it could be assumed that businessmen could be counted upon to support a socially conservative agenda in return for conservatives voting for free-market policies. Today, this is clearly no longer the case as it is corporate America that is the main force pushing for Woke policies. 

To respond to Hazony, it is important to state why a classical liberal framework is necessary particularly for conservatives. For better or worse, we live in a pluralistic society, full of decent people who have a right to live and vote in this country but are far from being conservatives even by the standards of National Review let alone Hazony. Assuming that we are not planning secession (a solution that I would support but Hazony would not) or civil war (which I hope that Hazony would not support), it is necessary to convince such people to vote for the Republican Party or at least not object too strongly when the Republican Party wins an election or a Supreme Court vote. Conservatives need to be able to offer such people certain guarantees that they will be able to live their non-conservative lives in peace. To operate within the classical liberal unwritten constitution is to have a set of values ingrained into you to such a degree that violating the legitimate rights of your opponents becomes unthinkable.   

Rod Dreher provides a good example of this sort of thinking when he challenges Catholic Integralists with what might be called the Edgardo Mortara question. If Integralists, somehow, were to take power, what, in their philosophy, would make it unthinkable for something like the Mortara case to ever happen? For those unfamiliar, Edgardo Mortara was a Jewish kid kidnapped by the Vatican in the 1850s because he had been baptized by a maid. This is a scenario that fills me with fear coming from the left. If you are on the left and you cannot explain to me why it is inconceivable that police will come to my house tonight or in five years to take my boys away because one of them told a teacher that they felt like they were really a girl but I refused to let them wear a dress then you can assume that political cooperation is off. Consistency demands that I respect the right of leftists to think along the same lines. If a political party animated by Hazony's ideals ever came to power what guarantees could he make to homosexuals that police will not come in the night and seize their children?

Democracies are inherently plagued with a variation of the prisoner's dilemma every time a new party wins an election. If Republicans win in November 2024, what is to stop Joe Biden from declaring the election a fraud and having Republicans shot before they can take power in January? This could even be declared a "defense of democracy" on the assumption that the Republicans would do the same thing if they lost in 2028. For democracy to work, not only is it necessary that all major factions respect the results of elections, it needs to be inconceivable to both sides that their opponents, whom they honestly dislike and think are bad for the country, would ever stoop so low as to overthrow an election. (Because of the events of January 6, this assumption can no longer be made about the United States.) 

The same logic applies to Supreme Court decisions. Will leftists, in response to the overturning of Roe, content themselves with mouthing off, marching, and trying to turn out voters for November or will they, instead, send out execution squads with proscription lists against conservatives? Make no mistake; this is the only reasonable option for anyone who truly believes that this country is in imminent danger of turning into the Handmaiden's Tale. Leftists have a plausible incentive to do so now that they can still rely on the protection of the Biden administration as opposed to a Republican administration that might come to power in 2025. What if the Court were to overturn Obergefell? 

It is the responsibility of conservatives like me to talk to the decent liberals in my life like my mother and mother-in-law to convince them that, contrary to what they might be hearing on NPR or MSNBC, there is no plot to establish a Christian theocracy. For good reason, they might not like conservative policies but that is the price of living in a country that has the GOP. For this to work, I need to be able to argue that there are certain lines that would be inconceivable for conservatives to cross. 

Here is where classical liberalism becomes important. It provides a collection of assumed red lines that can be built into the collective political consciousness of a society to never cross even at the cost of some short-term gain. Some hack writer is producing smut. That is their right. It does not matter if it has no social redeeming importance and may even be harmful. By tolerating indefensible junk, I signal to my opponents that I have no intention of coming after them even when they write books attacking me.  

As Hazony recognizes, part of being a conservative is the acceptance of norms, the most important ones being unwritten, that govern a society. One does not attempt to refashion society with a gun in one hand and a philosophy book in the other.  In the United States, a central part of our political norms is classical liberalism. This is an advantage of American conservativism. As Hayek argued, to be a conservative in America still means to be a supporter of liberty. The United States has no living tradition of crown and altar conservatism. Thankfully, the closest American equivalent, the slavocracy tradition of John C. Calhoun, lost all political plausibility in the 1960s with the defeat of George Wallace. When Hazony talks about the Anglo-American conservative tradition, he means Washington, Adams, Hamilton, and Marshall. Even as Hazony denounces the "Puritan theocrats" of the English Civil War, he never suggests that Americans should return to absolute monarchy along the lines of Charles I.   

The United States is a large and complicated country, one that I personally think should be broken up. If I, somehow, was ever elected president here would be my message to my mother, mother-in-law, and all the decent liberals out there who profoundly disagree with me. There will be no more pride flags on federal buildings but the police will not be charging into homes to arrest adults engaged in consensual activities. I may be willing to allow states to ban abortion but I will protect abortion in those states where it is legal. As a guarantee of my sincerity, I will respect the right of every individual property owner to secede from the United States to create LGBTQ/abortion sanctuaries as they wish. 

As a classical liberal, I am willing to make serious good-faith guarantees to my liberal opponents. What can Hazony promise? What lines will he not cross even though it will cost him the chance to build his conservative society? 

 

Brute Textualism For a Diverse Society

 

In any society, there is going to be a trade-off between the physical text of the law and the unwritten assumptions that we bring to the text about what purpose it serves. In theory, it makes sense to privilege the unwritten text as that will bring your legal system closer to the set of values you wish to endorse. The catch is that this can only work in a society where everyone shares the same unwritten constitution and a moral vision for what they want their legal system to accomplish. In a country where this is not the case, the only practical option is brute textual legalism. 

The reason for this is that we have every reason to assume that people have no intention of living under the authority of an unwritten constitution whose moral values they oppose and are likely, if pushed into an extreme enough situation, to reject the authority of the Federal Government, plunging the entire country into Hobbesian civil war. For example, imagine if the Supreme Court were to decide tomorrow that, in place of a right to privacy, the underlying assumption of the Constitution was white supremacy. Keep in mind that Taney made precisely this argument in Dredd Scott. In this reading of the Constitution, man is assumed to mean white men with blacks being given no legal protection. The Court then rules that slavery should never have been abolished and the modern descendants of slave owners should be able to reclaim the descendants of their ancestor's slaves as their rightful property. I would hope that my readers would support taking up arms to kill police officers who agree to round up African Americans even if this will plunge the country into civil war. 

From this perspective, being on the Supreme Court is a lot like being on a nuclear bomb squad. If the justices make a big enough mistake, they risk blowing up the entire country. In 1973, the Burger Court, in its hubris, put the entire country in danger by enshrining the sexual revolution constitution. This forced religious conservatives into choosing between living under a set of laws directly opposed to their values or taking up arms against the government. Conservatives worked for nearly fifty years within the system to overturn Roe. It very well may have been this belief that they could win legally that kept them from turning to violence. Over the years, we have seen individual actors assassinating abortion providers. How many conservatives out there secretly supported these murders at least in principle? If the liberals on the Court had gotten their way in Dobbs and crushed any conservative hope for victory, who knows what conservatives might have done out of desperation? 

Of course, Alito and the other conservatives on the Court are also now taking a risk in overturning Roe. It is possible that leftists will mount an insurrection of their own. We know of one person being arrested for trying to kill Kavanaugh after leading members of the Democratic party pretty much point-blank called for someone to kill a justice to save Roe. It is frightening to consider how close this country came to civil war because of one person. What do you think would have happened if the attempt on Kavanaugh had succeeded? Do you believe that conservatives would have simply accepted this "tragic misfortunate" action of a single "deranged" individual, not the work of the Democratic Party, and now, after coming so close they were not going to be able to overturn Roe?   

This framework helps us understand the value of brute textualism. In a world in which one faction might turn around and try to murder the other half if they think the other half is trying to force their values upon them, the only sane solution is for justices to rule in such a way that it becomes difficult for their opponents to accuse them of simply engaging in sophistry to justify whatever policies they prefer. This can be done through textual style originalism. This allows judges to tell their critics: you may not like the ruling but your argument is not with me it is with the Constitution. Come back to me when you have passed an amendment to the Constitution and I will support you. 

A useful thought experiment is to ask whether a justice's legal philosophy will ever force them to uphold the constitutionality of laws they oppose or overturn laws they actually support. If the answer is no then their philosophy can be dismissed as ad hoc justifications to force their values on you. They have betrayed the Constitution, giving you a plausible moral justification to ignore their ruling or to kill the judge even at the risk of igniting a civil war. 

In a world where all relevant parties share a common set of values, it makes sense to allow a more flexible approach to law. For example, I am going to approach Jewish Law with a specific set of values. In my Judaism, rabbis should not agree to perform same-sex weddings but still insist that it is a sin to lift a finger to initiate harm against homosexuals or even to mock those who struggle with this issue. I recognize that, with this statement, I have likely antagonized Jews on both the left and right and both can plausibly argue that my position is not based merely on Jewish texts but on my personal values. That is ok; such people are free to form their own version of Judaism. I am not trying to force my values on anyone. 

The United States has over three hundred million people living within its borders. Most of them have little in common with each other either culturally or in moral values. It makes about as much sense to have people from Mississippi and Los Angeles in the same country and subject to the same Constitution as to have either of these groups joined to the residents of Islamabad. As such, I think the only practical solution would be to divide the United States or implement such vigorous federalism that the Supreme Court has little opportunity to interfere with States or enforce much of any personal unwritten constitution. 

The next best solution would be textualist originalism enforced with full brutality. This will lead to many horrific conclusions. Ideally, both the left and the right in this American marriage will be left incredibly unhappy. Whenever a textualist decision leads to results that you find obscene, console yourself with the understanding that you are making a compromise with the other side so that they will not feel the need to deliver the first strike in a civil war by massacring your side in the streets.