The U.S. Supreme Court is hearing arguments about “affirmative
action,” and will probably wind up making the subject more confused
than ever, pending confusion worse confounded by a future Court. There
is no way through the semantic swamp of the whole area nebulously called “civil
Affirmative action means preferential treatment for nonwhites (and
sometimes women). It’s an interesting ethical question, but it
shouldn’t be a legal one.
The term civil rights itself used to mean rights of citizens — the
right to marry or own property, for example — which the state
was bound to respect. Now it means rights the state should enforce.
And some of these “rights” are highly questionable, such
as the “right” of access to others’ private property.
In language, logic is often the victim of history. Because the first
American “civil rights” laws were passed for the benefit
of blacks, the phrase has come to stand for legal or quasi-legal favoritism
for blacks and other racial minorities. It now sounds odd if a white
male talks about his “civil rights” — even though
the original idea was strict racial impartiality.
The expansion of civil rights brings the state into many areas which
used to be safe from legal coercion. Once upon a time proprietors as
well as customers used to be free to decide whom they would do business
with. I didn’t have to buy from you, and by the same token you
didn’t have to sell to me. But if today you refuse to sell to
me, I can bring the state into it by claiming to be a victim of racial “discrimination.”
Discrimination used to be a good word, meaning a good trait — the
ability to tell things apart. We discriminated “between,” not “against.” But
today, if you discriminate between such obviously different categories
as the sexes, you may be charged with discrimination “against.”
In the era of bogus rights, some women even clamor to be admitted
to men’s golfing clubs. By their logic, women should also be
allowed to play in men’s golf tournaments — and men in
women’s. Under the present system, both sexes suffer discrimination
against. Isn’t open competition on equal terms what civil rights
is all about?
Well, no. You have to learn the semantic ropes. Nobody knows what
it’s all about, except state power. If you are white, you may
swallow hard when you hear about a new “civil rights bill,” because
you can presume it’s directed against you, your property rights,
and your freedom of association. “Civil rights” are legal
vampires that drain the blood from real rights.
The claim that third parties are somehow injured by free exchanges
is a new twist in the bogus rights revolution. Fast-food chains are
now being sued on behalf of the obese children of frequent patrons.
I asked a leading advocate of these suits why he didn’t favor
prosecuting the parents themselves. He answered that it was more efficient
to sue the companies.
I noticed that he didn’t say it would be wrong in principle.
In the mental universe of bogus rights, very few things are wrong in
principle. Once we establish the principle that a child has a right
not to be fat, we have built a new superhighway for lawyers and state
bureaucrats. And nobody can be sure it won’t lead to his door.
Once the state got into the business of enforcing (rather than merely
observing) civil rights, definitions began to collapse, new “rights” kept
popping up (along with correlative obligations), the state invaded
everything, and people began having to worry about whether their customary
activities were still legal and lawyer-proof. Freedom is becoming a
mere residue: it refers not to God-given, inalienable rights (since “rights” are
now created by the state), but to the shrinking circle of things we
are still allowed to do.
After visiting America in the 1830s, Alexis de Tocqueville marveled
that Americans were pretty much free to do whatever they pleased. They
took for granted the right to start a new church, business, or charity
without seeking the permission of the state. Bogus rights had not yet
begun to devour real rights.
Our original rights freed us from the state’s power. Nowadays,
most alleged “rights” increase the state’s power
Copyright © 2012 by the Fitzgerald
Griffin Foundation. All rights reserved. This column was published originally
by Griffin Internet Syndicate on December 10, 2002.
Joe Sobran was an author and a syndicated columnist. See bio
and archives of some of his columns.
Watch Sobran's last TV appearance on YouTube.
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during the FGF Tribute to Joe Sobran in December 2009.
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