Tag Archives: America Is Doomed

How long will it be before the Fourteenth Amendment is deemed to prohibit “hate speech”?

Justice Kennedy’s opinion in Obergefell v. Hodges finding a Constitutional right to gay marriage doesn’t really bother to cite a legal justification, instead relying on florid exaltations of “love, fidelity, devotion, sacrifice, and family” and an aw-shucks conclusion that laws against gay marriage “burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality.”  His nominal Constitutional reference point is the Fourteenth Amendment, that contemporary cannon in which all manner of federally-provided goodies are loaded and splayed about the populace.

Suppose a future Congress were to pass a law criminalizing “hate speech.”  Such a law would, contrary to the willful understanding of much of our popular culture, be unconstitutional, at least as of June 25, 2015.  However, if a respondent (say, a future Democratic Solicitor General) defending such a law were to assert that “hate speech” uttered by a hateful hater effectively prevented the victim from enjoying her civil rights, or from fully participating in society—which is the position of many universities, the NAACP, and plenty of others on the mainstream left—then couldn’t the Supreme Court uphold the law under the same principles as the Obergefell decision?

If the First Amendment to the Constitution protects hate speech, Justice Kennedy might hold, then the First Amendment itself “burdens the liberty of minorities subjected to hate speech, and it must be further acknowledged that it abridges central precepts of equality.”

Consider another passage from the Obergefell decision:

The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.

Unlike in the case of the desire among gay people to get married, our founders did understand the concept of speech that would offend people and explicitly decided that the value of free speech outweighs the consequences of hurt feelings.  First Amendment rights in the U.S. are generally not subject to the left’s beloved concept of “balancing tests” (issues related to national security are an exception), but Kennedy’s fuzzy language leaves much to the imagination as to how a future Court might decide to construe liberty.

Other countries that have historically cherished free speech have carved out exceptions, such as the criminalization of “racism” in the U.K. or of denial of the Holocaust in France.  The fact that America’s democratically-elected representatives have attempted many abridgments of free speech over the years certainly proves that there exist ongoing differences of opinion on “the extent of freedom in all of its dimensions.”

Now that the Supreme Court has again interpreted “a claim to liberty” as the right to receive benefits from the government as a married gay couple—as opposed to the founders’ notions of liberty as freedom from coercion by the government—it does not seem too much of a stretch to think that a future Court acting on this precedent would discover that an American in a protected class demanding protection from hateful speech is entitled to rectification of a similar “claim to liberty” that must be balanced with free speech rights.

Such a purported victim need only claim that his Fourteenth Amendment Due Process and/or Equal Protection rights have been violated in some vague manner to assert the primacy of that Amendment over the speaker’s rights to free speech.  After all, the Fourteenth Amendment was passed subsequently to the First, so there is no reason why the former could not be deemed to supersede the latter.

Justice Thomas notes in his dissent, “inversion of the original meaning of liberty will likely cause collateral damage to other aspects of our constitutional order that protect liberty.”

By the way, it is not that difficult to imagine extending the same argument to require a balancing of Fourteenth Amendment rights with those protected by the Second Amendment.  E.J. Dionne, writing presciently in the Washington Post on June 24, wants a new campaign “protecting the rights of Americans who do not want to be anywhere near guns.”  One wonders if he had dinner with Justice Kennedy a couple of weeks ago to trade notes?

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Out of the mouths of babes. . . Touching stories of Somali integration

In Lewiston, Me., of all places, the concept of free-market economics is illustrated nicely:  “Many Somalis originally came as refugees to larger cities, Atlanta in particular, but then moved to Maine after hearing that it had a wider array of subsidized housing available and also was easier to get on the welfare rolls.”

From the same article:  “‘People were thinking, to be a police officer, you have to be born in the U.S. … you have to be white,’ Libah [a recent Somali arrival] told the news agency. ‘They never thought they could be a police officer.'”

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We are all technocrats now

The U.S. is pretty much the only country in the world in which some constituency can be found asking, Is this really something that government should be doing? in response to a proposed law at the national or local level.  But our culture is changing, and such inherent skepticism of the government is rapidly moving toward extinction.

We now tolerate a nanny state, which shows up at all levels of government.  To take three recent random examples that we came across:

  • January:  A typical zoning fight about whether an e-cigarette lounge should open on a certain street in San Francisco pits various activists debating whether or not such an establishment fits with their views about whether this is an amenity that the neighborhood wants in light of the other retail available on that street.  No one has suggested that a land owner and tenant should be able to come to private agreement on what to do with their own property.
  • May:  A debate about whether to allow self-serve gas stations in Oregon features arguments about supposed safety considerations, jobs, and various lawmakers’ and bureaucrats’ opinions about the impact on customer convenience.  Again no one seems to be offering the opinion that the government has no right to meddle in a station owner’s business decision to begin with, nor mentioning that perhaps the free market would be better served to sort out issues of customer service and price.
  • May:  Opponents of a proposed ordinance in San Francisco to require warning labels on soda advertising (following the defeat of a city-wide soda tax last year) resort to insisting that sugar is soda is no different from sugar in any other product, and that “education” would be a more effective means of propaganda anyway.  No one at the table is offering the argument that government has no business interfering in consumer choices about a basic product, but rather they are arguing about what tools are most effective to implement the state’s nannying agenda.

The boundaries of these and countless similar local debates is most depressing to this libertarian, not only because we feel for the normal Americans whose livelihoods are chipped away by big government, but also because of the picture they paint about how our citizens apparently want to be governed.  The terms of the debate are so far away from Is this really something that government should be doing? that such questions seem quaint.

We could call these debates “technocratic,” that is, a presumption that a new government program is all that we need to solve some problem or close some gap in society, and we just have to debate what the government program will look like.

The “technocratic” moniker is not that common the U.S.  It’s a familiar (though ought to be derisory) term in Europe, often used to describe some government or individual minister who comes to power in a parliamentary system.  In that sense, it’s roughly a synonym for “socialist,” and simply means that apparatchiks who used to be a step or two lower, or more obscure, in the ranking of the political class assume power as sort of a compromise when the highest-ranking members can’t come to agreement on who will take the top political jobs.

“Technocratic” governments in Europe sometimes come about due to fiscal crisis, and sometimes due to elections that don’t produce clear winners.  In either case, their jobs consist essentially of keeping the big government functioning within the same narrow bounds that it did before, until voters can re-mandate the not-all-that-different status quo ante.  It may seem perplexing to an American audience, but our governments are looking more and more like this too.

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It’s dangerous when religious belief is the only justification for freedom of association and private property rights

The Religious Freedom Restoration Act (RFRA), championed by Congressional Republicans and conservative commentators, represents an important counter-maneuver to the oppression wrought by the cultural left.  Of course, RFRA shouldn’t be necessary, and wouldn’t be if our culture still respected the freedoms enshrined in our constitution and national traditions.  It’s dubious that RFRA carves out liberties defined by religious belief over those that should be protected by the equally fundamental American protections of free speech, free association, and property rights.

RFRA allows a private actor—a citizen or organization—to refuse to comply with a law by complaining that the law substantially burdens his religious belief.  The law requires courts to use a balancing test in weighing the law’s purpose versus the individual’s belief.

The First Amendment is pretty absolute, subject to a few well-defined exceptions and rarely subject to any balancing tests.  It is a profound violation of American notions of liberty to insist that property rights can only be asserted by virtue of religious belief, and subject to a balancing test at that.

In the archetypal scenario that has necessitated RFRA and similar legislative pursuits in the last few years, a baker refuses to decorate a cake for a gay wedding, in violation of a local ordinance or state law barring discrimination against homosexuals.  RFRA would allow the baker to potentially avoid sanction, but would not invalidate the underlying law that he had violated.

Aside from the question of whether refusing to decorate a cake with certain content actually amounts to discrimination against a defined class of people, it seems disastrous for the right to concede the merits of such anti-discrimination laws—or of continually expanding the classes of people covered by them—and leave the private citizen with no recourse other than to grasp onto his religious belief to carve out an exception against the state expropriating his property rights.

That the baker cannot assert a defense of “I don’t like gay people” or “This message doesn’t comport with my taste” or “I don’t want to promote the institution of gay ‘marriage'”—nor apparently “I don’t like your attitude” or “I don’t feel like serving you” or “It’s none of your damn business why I don’t want to make your cake”—represents a profound erosion of freedom.  Moreover, forcing him to publicly assert his religiosity and articulate the details of how that impacts his decisions on how to earn a living–and then subjecting that reasoning to analysis by a court—represents a troubling intrusion into the baker’s freedom of conscience.

Businesses in America used to have signs saying, “We reserve the right to refuse service to anyone,” but now that statement has no practical implication.  Perhaps there is a new market for signs that say, “We reserve the right to refuse service to anyone, except racial or ethnic minorities, women, non-Christians, people with disabilities in some cases, military veterans, and maybe homosexuals or ‘transgendered’ people, depending on which state, county, and city we are located in.”

Although people who value individual liberty have always opposed anti-discrimination litigation on principled grounds, they have been lonely in doing so.  We have essentially lost the argument, beginning with Barry Goldwater’s prescient but futile opposition to the Civil Rights Act of 1964.

But recent debates leading to such laws as the RFRA have taken us even further in the direction of collectivism.  Both arch-leftist Sally Kohn—via one of the stupidest articles ever written—and supposed conservative John Kasich—in a more folksy appeal to common sense—have made what turn out to be similar arguments to defend laws against discrimination, asserting that simply existing in the public sphere requires one to not discriminate.  Although their arguments advance the same concept of “public accommodation” that has prevailed since the civil rights era, they go further in advancing a profound misconcepti0n of what liberty is.  (Their arguments are little different than defending a law prohibiting people yelling in the public square to criticize the government by saying, We have freedom of speech in this country; you are free to say whatever you want in the privacy of your own home, but once you enter a public space, the state has the right to restrict what you say.)

We get it:  true freedom of association and property rights are basically dead in this country, and have been for decades.  And we get that asserting religious freedom may be good politics as a rear-guard action to restore some freedom of conscience in some circumstances.  But the right is not doing the culture any favor by rushing past some core American values to imply that the only people who deserve liberty are those who can claim a religious basis for it.

 

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UPDATE: NCAA’s treatment of Penn State was a sham

Joe Nocera of the New York Times reports that Penn State knew that it didn’t have any jurisdiction to penalize Penn State’s football program as a whole for the horrific private actions of former coach Jerry Sandusky.

We lamented the punishment at the time as an affront to the “rule of law,” so to speak, and unfair to the team.  Naturally, liberals in the media (including Nocera, as he decently admits in the current column) enjoyed lambasting the university’s “football culture” that supposedly contributed to the abuse.

It is fair to criticize the Penn State administration for enabling Sandusky, but it does not follow that the NCAA should punish the players on the field.  It’s a bit too late for the students, players, and fans, but at least we can hope that the NCAA applies more rational oversight in the future.

 

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What’s the real story behind the Bruce Levenson revelation?

Another scalp for the faux-outrage crowd.  We see nothing wrong with the e-mail that Atlanta Hawks’ owner Bruce Levenson sent to his colleagues:  he was calling for more diversity in the cheerleading team and arena music selection; citing the need to attract more affluent whites to the season ticket ranks; advancing a theory that perhaps some presumably racist white people are afraid to come to games and that the team should address their perception, while being careful to add that he didn’t personally share that perception (this second clause in his statement scurrilously left out of the Washington Post‘s coverage); and benchmarking other teams’ fan bases and marketing approaches.  Seems like normal business.

Cue the moronic template statement from the NBA commissioner:  “As Mr. Levenson acknowledged, the views he expressed are entirely unacceptable and are in stark contrast to the core principles of the National Basketball Association.”  This mechanical pablum with utterly no context could have been issued at any time, in any of these phony “scandals.”  If one didn’t know better, one would doubt its sincerity.

The interesting question is how the information came out.  He sent the e-mail in August 2012 and reportedly “voluntarily reported the email to the NBA” in July 2014, triggering an “independent investigation” by the league.  One wonders the circumstances of this reporting.  Why would Levenson report it?  Did he learn that some news was about to leak, and/or the NBA’s “investigation” was about to crucify him, prompting him to try to get out in front of it?  Presumably, during the Donald Sterling fracas, Silver put the other owners on notice that a witch-hunt was coming.  (Of course, the witch-hunt would be coming from the NBA itself, even though the commissioner is supposed to actually represent the owners not sell them out.)  Did Silver offer the owners some type of amnesty, in asking them to get anything potentially damaging out there, and then renege?

(As hackneyed as it is, we can play the usual thought experiment and switch the races in Levenson’s message, and realize that, had he said that the team needs to add more black-oriented music and black cheerleaders, attract more upscale blacks, and otherwise address blacks’ perceptions of the brand to make the environment more comfortable for them, he’d probably receive an award for promoting racial harmony.)

These are all troubling questions, coming soon, no doubt, to your employer too.

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Adrift trying to navigate the false equivalencies and hierarchy of victimhood

Attractive Tacoma teacher Meredith Powell, age 24, pled guilty to having sex with a couple of male students, ages 15-16.  Everyone has played their dutiful part in the aftermath:  the mainstream media reported on the “rape”; commenters everywhere decried the “double standard,” as a male teacher certainly would (and has) received much harsher punishment for a similar offense; and the 99% that comprise of the rest of us snickered, with some subset of that group envious that they never had teachers like that in high school.

Perhaps, genders aside, one could argue that the teacher abused her power position, but, judging by the sexts the fornicators sent each other, it appears that it was the alpha-men-in-training who had the psychological power over their lonely paramour.

Some on the right have also toed the “double standard” line, including a disappointingly tame Greg Gutfeld.  Polite conservative society seems unable to point out the illogic in the false equivalency between a woman “perpetrator” and a man in such circumstances.  Our polity moves on awaiting the next spectacle.

Where’s the outrage at the outrage?  Channeling Whoopi Goldberg and Todd Akin, this was not rape in any rational sense.  This was not forcible rape.  This was not coercive or even manipulative rape.  This was not date rape because-I-was-drunk-no-I-mean-drugged-actually-I-changed-my-mind-the-next-morning.  The “victims” were postpubescent males who gladly consented and certainly high-fived all their friends afterward.  As would any teenager after bonking a 24-year-old teacher who looks like that.

Meanwhile, following the release on the internet of private naked pictures of 100 starlets (and one dude) allegedly stolen from the iCloud, Time myopically asks, “Where Are All the Hacked Pics of Men?”  The article doesn’t really attempt to answer, which is more indicative of the author’s worldview than would be any attempt to analyze this profound question.  It’s self-evident sexism, of course—make that rape culture.  And, by the way, woman have a hard time working in technology.   And female video-game developers are routinely harassed.  Etc.

The Time author’s title is a rhetorical question, but not for the reason that most people assume.  Sure, one explanation is that there is little demand for such content.  Still, in the era of abundant internet niches to fulfill every imaginable prurient interest (and many that we can’t imagine), we can assume that there is someone out there purveying photos of naked famous men, presumably for the homosexual audience (Google “male celebrities naked pictures” and you’ll find plenty of on-point hits).  The main constraint is on the supply side:  because the “selfie” is largely a feminine phenomenon.  Facebook, Instagram, the “selfie stick,” the dual-camera iPhone, and the other culture-rotting diversions of our time exist because of female narcissism.  You won’t find many men taking pictures of their naked bodies in the bathroom mirror, much less feeling compelled to upload them to the internet.

None of this excuses the hackers’ invasion of privacy, but it is telling that Ricky Gervais was met with nearly universal opprobrium for repeating the obvious advice that we have all received at some point:  don’t publish something that you wouldn’t want to see broadcast across the internet.  Seasoned male pick-up artists (as well as anyone with any common sense) know that when you send an illicit pic to a chick, you make sure that it doesn’t contain any personally identifiable body parts.  But today’s women can’t seem to help themselves.

So, on the one hand, our intellectual elites tell us, there is no biological basis to our quaint notions of gender, so it would follow that there should be no difference between how society reacts to Meredith Powell versus a man similarly situated, and, by the same token, that we should be dumbfounded and outraged (dumraged?) why hackers sought out a nude Jennifer Lawrence but not a nude Joey Lawrence.  (OK, a bad example perhaps.)

On the other hand, in case you haven’t heard, there’s a war on women, not to mention a “deadly epidemic of violence against women.”  In fact, society cares more about endangered ex-pets than about battered women.  So we should come down hard on the patriarchy.  It’s unclear where violence against men is deemed to fall in this hierarchy of worry:  no one seems to care about prison rape, because, well, it’s men who are victimized, plus it’s part of the scourge of American exceptionalism and hence concern about it would place one on the wrong side of the social-justice-enlightenment see-saw.

Since the most noble status one can have in our society is that of victim, and the most righteous pursuit of our intelligentsia is to identify those hapless martyrs and their wrongdoers, it is becoming increasingly complicated to figure out which causes we are supposed to prioritize.  Approaching this puzzle with a basic understanding of the differences between males and females would be a good place to start, but, alas, that ship has sailed—when it suits the narrative.

It gets even harder to decipher the zeitgeist when you add sexual orientation as a dimension.  Civilized society (not to include the authorities in Rotherham) seems to be reacting with appropriate horror at abuse perpetrated by Muslims against young girls in England, as well as that against young boys by Catholic priests worldwide—though the politically-correct media has reduced the sociological sting of the latter crisis by almost universally obscuring its homosexual nature.  One suspects that the secular-progressives’ interest in the case is due mostly to their hatred of religion and their love of lawsuits (with the tort bar chomping at the legs of the table to get its supper).  It becomes complicated trying to patch together our perturbation across so many overlapping grievance groups and boogeymen.

We’ve been trying to come up with a formula to predict the level of contemporary outrage at sexually-based offenses controlling for the gender and sexual orientation of the putative victims and those of the perpetrators.  It’s only getting harder as the number of permutations grows exponentially with all of these new sexual identities.  We give up.

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