Legalizing Discrimination: A Liberal Solution to the Recent Supreme Court Rulings

 

Last week, the Supreme Court offered two rulings along 6-3 ideological lines that upset many liberals, which I would like to discuss here. In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, the court ruled against the affirmative action programs of Harvard and North Carolina, arguing that they discriminated against Asian students. In 303 Creative LLC v. Elenis, the court ruled that a Christian website designer could refuse to design same-sex wedding websites. I empathize with liberals and recognize that liberals deserve to live in states and have institutions that reflect their values. I would like to propose a solution that would give liberals the opportunity to rule parts of America according to their desires without interference from conservatives; we should eliminate the 1964 Civil Rights Act and limit the power of the Fourteenth Amendment so that it does not mean that constitutional rights apply to states. 

At first glance, liberals may be horrified by the thought of eliminating the legal foundations of modern civil rights law and suspect that I am trying to bring back segregation. This is not my intention. I honestly want to help liberals on the principle that people should be able to come together to form social and political institutions based on their particular values. By definition, such institutions must discriminate against someone. In the name of intellectual consistency, I am willing to defend the right to freedom of association even for my political opponents and even for those people who intend to use that right to discriminate against me. 

Eliminate laws that prohibit the federal government from funding institutions that practice discrimination and Harvard will be able to practice "affirmative action" to its heart's content. There will be no need to find clever workarounds. Harvard will be able to openly put a cap on the number of Asian students they will accept. If Harvard also decides that there are too many Jews, well that was why Brandeis University was created in the first place. To be clear, I do not support any government funding for universities or any kind of education. In fact, it is my hope that allowing universities to engage in discrimination will serve as a valuable step toward abolishing federal funding for education. If my proposal leads to federal funds going to whites-only colleges then hopefully liberals will join me in working to establish a wall between government and education. If they do not then they will be the ones propping up discrimination.   

Similarly, the First Amendment should not apply to states. Were it not for an expansionist reading of the Fourteenth Amendment, only Congress would be forbidden from establishing a religion. Liberal states like Colorado should be allowed to establish a tax-payer-funded LGBTQ+ Church, with inquisitors to hunt down and arrest anyone who fails to actively affirm the Sparkle Creed. 

It should be understood that while it is possible for there to be a wall separating education and state, there can be no consistent wall between church and state. Religions do not require any beliefs regarding gods or the supernatural. Any group that comes together will be motivated by a set of values and those values will be a religion of some kind. Anyone who says otherwise can be assumed to be attempting to force their values on the rest of society by pretending that their values are not really a religion. I prefer to deal with honest theocrats.  

Part of bringing back actual federalism is to recognize that different states are going to operate as different social and political experiments. Different states are going to establish different kinds of religions. It may be that they will also make different judgments about which groups have been oppressed and which groups have been privileged. They will then attempt to make their state more "equitable" by creating affirmative action programs to help those groups deemed to be historically oppressed. Some states might decide to focus on helping Jamaican immigrants while other states might focus on people who fled Red China. Finally, other states might want to help rural Appalachian whites. Those who belong to the wrong religion or to a group deemed to have unfairly benefited from privilege can either continue to live under a dhimmi status or they can emigrate to a state where their god is not a symbol of hate and where their skin color does not mark them as systemic oppressors.  

LGBTQ+ History Month

 

A local elementary school here in Pasadena placed the following banners in honor of LGBTQ+ month outside its front office. Let us leave aside the question of why it is more important for the school to ensure that elementary school kids are more aware of LGBTQ+ History Month than Filipino-American or Italian-American History Month. What struck my attention was the timeline's claim for 2003: "LGBTQ+ legalized nationwide in the U.S." 

I can only assume that this is supposed to be a reference to the Supreme Court's Lawrence v. Texas decision that struck down anti-sodomy laws. Obviously, this was a critical event in the history of gay rights that set up the Obergefell decision with its right to same-sex marriage. That being said, it is not as if LGBTQ+ people were illegal before 2003. While gay sex has certainly been illegal in many parts of the country, being a gay person was never, in of itself, illegal. As someone who studies Jewish History, the distinction is an important one. The Spanish Inquisition went after people who carried out Jewish actions such as eating cholent on Shabbos. The Nazis, by contrast, killed people for having a Jewish grandparent. 

The timeline's statement only makes sense if we assume that being gay is fundamentally about what kind of sex you engage in to the extent that preventing people from engaging in gay sex stops people, in some sense, from being gay as opposed to "merely" violating the right to privacy of consenting adults. If being gay is really about sex then it has no business being discussed with elementary school kids. Those in the gay rights camp need to get their story straight. 

The really strange thing about this mess of a statement is that Lawrence v. Texas had nothing directly to do with much of the LGBTQ+ alphabet. The decision affected trans people about as much as heterosexuals. Whoever made the timeline was so wielded to the notion that LGBTQ+ represents a coherent group of people that they kept to it even to the point of writing utter nonsense. Here is my proposal to the LGBTQ+ advocates running our schools. If you are planning to groom my kids, pump them with puberty blockers, and castrate them, is it too much to ask that you at least teach them to write about history in coherent sentences?           

2016 in Reading

Between my tutoring work and taking care of Kalman, I have not had time to blog much. As my tutoring has me driving into Los Angeles three time a week, I still get to listen to a lot of books. (God bless Audible.) As such, I would like to give a shoutout to some of my favorite books from the past year, books I would have loved to blog about if given the opportunity. None of these books are explicitly libertarian, but they are all worth the attention of lovers of liberty.

For psychology there is Mistakes Were Made (But Not by Me): Why We Justify Foolish Beliefs, Bad Decisions, and Hurtful Acts by Carol Tavris and  Elliot Aronson. As someone who likes being right, this humorous book sometimes cut a little too close for comfort. Considering how terrible humans are at admitting mistakes, one of the great virtues of the market is that it forces you to admit that you were wrong after a fashion. (It is called going bankrupt.) Can you trust a system like government designed to take people who are even worse than most at accepting blame and protect them from ever having to do so? The chapters on police interrogations and wrongful convictions are frightening. Has the art of criminal investigation really improved much since the Middle Ages?

Dr. Alan Brill used to tell us that people during the Middle Ages were not irrational. On the contrary, they would call us irrational. So for Judaism let me recommend his Judaism and Other Religions: Models of Understanding. In a post-Enlightenment multi-cultural world, the greatest challenge to any religion is how to grant legitimacy to other religions while still being able to justify the continued existence of yours. I greatly respect Brill for his ability to draw a line between offering textual background and advocacy for any particular solution. This book categorizes different Jewish stances regarding non-Jews ranging from saying that they are completely trapped in error to relativists positions where no one has any claim to objective religious truths. There is one point where Brill breaks his academic neutrality to acknowledge that a particular position is racist. Even this case serves demonstrates Brill's fairness as he does not attempt to sugarcoat Jewish tradition to make it palatable to moderns.  

Donald Trump's rise and electoral victory have drawn attention to the plight of white America. For this, I recommend Dreamland: The True Tale of America's Opiate Epidemic by Sam Quinones. This is top of the line journalistic history using a powerful narrative of nice Mexican boys dealing black tar heroin to white suburbanites in the midwest to make a general argument on how we need to rethink our conceptions of drug use and addiction. As this is a rare tale that takes us from Columbus, OH to Los Angeles, I feel a special connection to this book. Quinones is intent on blaming pharmaceutical companies for pushing painkillers ignoring their potential for addiction. I see a tale of moral hazard. The American government, with its regulation of the drug market, created a two-tier system of doctors prescribing legal drugs and a black market of drug dealers. This left Americans defenseless against the dangers of prescription drugs. My doctor with his lab coat and framed degree would never give me anything dangerous. He has nothing in common with the smelly villainous street corner dealer. We can see the problem even in our use of language as "drugs" have come to mean only the illegal kind, implying that there is a meaningful difference between them and the legal kind.

For History, I recommend Imbeciles: the Supreme Court, American Eugenics and the Sterilization of Carrie Buck by Adam Cohen. Buck vs. Bell stands along with Dredd Scott as one of the greatest miscarriages of justice in American history. The State of Virginia conspired to have a perfectly ordinary woman declared to be mentally incompetent so she could be sterilized for the crime of being poor, uneducated and a rape victim. This is a kind of horror story for me as I can so easily imagine the government today using the same tactics to go after autistics. Just as the line between mental deficiency and being poor and never being allowed to finish grade school is easily blurred, so to can the lines between mental deficiency and not being able to function in a traditional classroom also be so easily ignored by those with an interest in doing so.

For fiction, my recommendations come from science-fiction. We have the Three Body Problem series by Cixin Liu. This Chinese mishmash of the Cultural Revolution and War of the Worlds is one of the most learned works of science-fiction I have ever encountered. As with anything by Neal Stephenson, it helps if you have a graduate level background in the history of science. This series competes well with Atlas Shrugged and Moon is a Harsh Mistress for being the greatest pro-liberty science-fiction story ever written. The heroes of this series are all fundamentally individualists, who act for their own personal human reasons as opposed to the large elaborate plans of governments.
  
Influx by Daniel Suarez is another highly intellectual novel in which the hero has to struggle against a vast bureaucracy staffed by people who act in the "public interest" to withhold advanced technology from the public. They have a complex argument, based on computer simulations, as to why they need to be in charge of all of humanity that could only be comprehended by a computer. There is a particularly harrowing torture sequence in which the hero faces off against a machine intelligence, who demands he cooperate with him in replicating human ingenuity. Failure to comply is met with the step by step destruction of his own personhood.

It took awhile for me to get into the Red Rising series by Pierce Brown. I got that it was going to be Hunger Games on Mars. Young Adult dystopian novels were beginning to bore me. Then something happened that shocked me and this was not the early murder of Darrow's wife, which, while well handled, was hardly surprising. If Darrow draws parallels to Katniss, he is far more morally tainted. The second book pushes the series even further into Game of Thrones territory. Book three contains one of the best pro-capitalism speeches in all of fiction. It comes suddenly and from a character that you had not realized was one of the good guys.  

An Explanation of My Beliefs in Regards to the Constitution

In a comment to my last post, I was asked some questions in regards to constructionist and activist judges. I would like to take the opportunity to respond.

“What is the difference between a "constructionist" and "activist" judge? Who are some examples of each on the Supreme and Circuit courts?”

A constructionist judge believes that his job, as a judge, is to explain the Constitution. (Either in its literal meaning or based on how it was originally understood by those who wrote the relevant clauses.) An activist judge believes that the Constitution is a “living” document that must be interpreted in light of present morality or even based on International law. The activist view, in essence, is a license for judges to rule however they want; they become legislators more powerful even than Congress.

I think Scalia is a fine constructionist judge, committed to ruling based on constructionist principles. This does not mean that I agree with every decision he has ever made. I am sure if I were on the court I might make many different decisions, but it is only reasonable that people of good faith will have honest differences. Stephen Breyer is an activist judge; he has gone on the record supporting the use of foreign legal precedent in court rulings.

Barack Obama, in Audacity of Hope, talks about this issue and expresses his support for Breyer’s approach. I am sure Obama means well, but I see this approach as a sitting threat to a free society.

“Also, what are some cases which serve as examples of "reinterpreting" the Constitution to "create" a "civil right?”

The classic examples of activist rulings are Griswold vs. Connecticut, which established a constitutional right to use birth control based on a mythical right to privacy, which the court made up just for this occasion, and Roe vs. Wade, which established a right to abortion. Not that I want it to be illegal to use birth control or to have an abortion. If someone were to propose amending the Constitution in order to create a right to privacy I would support it. That being said, none of these things are in the Constitution and the people who wrote the relevant amendments did not intend to cover such rights. The whole concept of a right to privacy is hypocrisy anyway. Why does the right to privacy not allow me to grow marijuana in my own basement and smoke it there? Why can’t I make a private decision with my own doctor to sell my kidneys?

More recently the Supreme Courts of Massachusetts and California have ruled that homosexuals have a “civil right” to get married. Personally, I don’t have a problem with gay marriage. It seems perfectly reasonable for the government to revise its marriage laws to cover the changed circumstances in our society. But these courts, by inventing this new civil right, have declared that all those who do not actively support gay marriage are bigots, carriers of a type of belief that the government is allowed to actively fight against even with the believer's own money. Thus they have trampled the rights not of homosexuals but of all opponents of homosexuality.

“How extensive is this problem of judicial interpretation? Is it serious enough to be a deterministic factor in weighing your vote for the Presidency?”

At the end of the day, the practical differences between the parties are not that great. Both parties are pro-capitalism. Neither party is about to try to take down Wall St. On the other hand, both parties support some form of government-funded health care and government schools. No matter who is in power, billions will be spent on social welfare programs. For all the conservative talk about taxes, all of these things require money and people are going to get taxed to pay for these things. (There may even be a tax hike.) This may upset many radical Liberals but the United States military is going to consume a large chunk of government spending. The day when schools will have all the funds they need and the air force has to have a bake sale in order to buy bombs is not going to come anytime soon. I am not saying that any of this is good or bad, but the way our government is set up, with its two-party system politics, one is forced to keep pretty much to the center. The biggest difference between the parties is what sort of judges they will put in.

We are in the middle of a continued assault by radical Liberals/secularists to enforce their values on other people. This assault has been spearheaded by activist judges. For all the talk about Christian Fundamentalists trying to take over the country and threaten our liberties, for me the real threat comes from secularists. Their agenda goes way beyond creating a secular atmosphere and applying psychological pressure on people to conform to their views. They wish to take direct action that will physically force people to surrender their own personal beliefs.

Joe's Response to Some Good Christmas Tolerance IV

I agree with that assessment. I would agree that calling a government sponsored Christmas tree persecution is going rather far, into the absurd range. But while I would not say it is persecution, I would call it unfair.

As you say, the difference between us is more about where to draw the line and how prevalent religious intolerance is than on any fundamental difference of opinion I think. That may be due to differences between the areas we grew up. I spent much of my life in areas that many people spoke of tolerance but acted on intolerance. There are too many places in the south that are very friendly only so long as you agree with them (not having spent much time outside of the south I can't say how widespread it is elsewhere). Ironically,
I have seen an interesting dichotomy (broadly generalizing here) along southern blacks and whites (discounting some of the vociferous and attention-getting blacks) wherein the poor blacks as a whole tend to be more charitable and tolerant than the whites as a whole (I say as a whole because this distinction does not hold for many people on both sides). This could be due to the fact that blacks often had to be tolerant to get by whereas the whites did not.

Certainly your point about the historical instances of religious persecution being far more blatant and severe than the current situation in the US is completely valid. The issue as I see it is that there are those, particularly in the south, that would like to see the situation get much more intolerant than it is now, such that illegal but in areas accepted acts of hatred become legal and I think we must guard against that. So I would accept that my position may be on the "liberal" side as a defense against the extreme "conservative" side. Although I really hate those terms because liberal and conservative are very poor descriptors and lump complex intertwined issues together, but that is another tirade against the imprecision of current labels. Most people really don't like to think about issues in more than a superficial way, sadly enough.

My response: I have never lived in the South so I cannot comment about southern tolerance. Maryland technically speaking is below the Mason-Dixon Line, but last I checked it still does not really count.

While we both want to draw the line between church and state in different places, there is an important difference between us. The founding fathers would have been far more likely to agree with my line, that the government cannot directly coerce people into following a given belief or give any special status to a given belief, than with your line, that the government cannot do anything that might make members of minority religions feel marginalized. (This is leaving out the fact that the first amendment does not apply to states in the first place; remember the Constitution says "Congress shall make no law ...". The idea that the first amendment applies to states was an invention of the Supreme Court.) So I have the Constitutional high ground. You can make all the moral pleas so want but you cannot say that the Constitution supports you. That being said, you do seem to have the Supreme Court on your side.

To get back to an earlier issue, why do you assume that whenever anyone tries to go after a group, which holds unpopular beliefs, that religion is to blame? You do not need religion to persecute people. Furthermore, what connection is there between the government putting up a Christmas tree and someone throwing a brick through my storefront window? As I see it people who want to engage in violence are going to find an excuse to justify it. Religion is a good excuse. If you do not have that than there is always race. If you are really desperate you can always start a fight over rival sports teams. (Here at Ohio State we have a history of sporting events turning violent, particularly if it involves Michigan.)

Why would the government putting up a Christmas tree on state property be unfair to me? There is nothing unfair with putting something up to a democratic vote. In Columbus OH the government can put up a Christmas tree, in Brooklyn NY the government put up a menorah and in suburban Detroit MI the government can put up a Crescent. Look, if I really felt a need to have a government that played to my religious sensibilities, I could always run off to Israel. I am a part of the liberal tradition. I value living with people who do not share my values. The government is therefore doing me a favor by putting up a Christmas tree; they are forcing me to be more open minded. I think my life is richer because I learned to sing Christmas carols from listening to the radio. I would not have had that opportunity if I did not live in a Christian society that was open with its Christianity.

Abortion Rights and the Health Exemption for Thieves

The Supreme Court, by a 5-4 decision, has upheld a Federal law banning “partial-birth” abortions. The main objection to this law and other similar attempts to place limits on abortion rights posed by abortion rights activists is that such laws lack exceptions for the health of the mother. Opponents of abortion have objected to writing such health exemptions into the law, seeing them as loopholes which would render abortion laws to be meaningless. Anyone could have an abortion and simply claim that there was a health issue involved. (That health issue could be headaches, throwing up in the morning and looking like a bloated whale.)
The problem I have with the health argument in regards to abortion is that implicitly every law has a health exception. We have laws against stealing but no one is going to put a man in jail because he was starving and therefore stole a loaf of bread. The police are not going to make an arrest, the DA is not going to not prosecute, the jury will not convict and the judge is not going to sentence. This health exemption is not written anywhere but it is self understood. For every law in existence I could construct an emergency scenario which would justify the breaking of that law. There is no need to have exceptions for these emergency scenarios to be put onto the books. If one finds oneself in one of these emergency situations then one commits the crime and trusts in the fact that the legal system will understand that this was one of those emergency situations and make an exception.
If a doctor honestly believes that there is a legitimate health risk if a woman does not have a partial abortion and he is willing, with a straight face, to say this in a court of law then he will be able to conduct that abortion without any fear of going to jail. We can trust in the unwritten law of common sense.