Tuesday, April 7, 2015

Concurrence At Last

     Now and then, I find myself hammering a point that other people simply don’t get. The symptoms range from mute incomprehension to outrage (at me). The modal response is somewhere around “What do you mean? That can’t be right.”

     So it’s been with the point I’ve strained to make about the evil of “compelling government interest:”

Probably the most common approach to the teaching of "political science" in our institutions of "higher learning" -- really now, you should know those are sneer quotes without having to ask -- is the authoritarian-allocation model. In this conception, the quest for political power is a contest over who shall be awarded the sovereign's privilege of licensure: the power to say who may do any given thing, who may use any particular resource, and who shall be exempt from all such laws. Underneath this model lies the assumption that there is no higher moral standard that would preclude the sovereign's arbitrary allocation of privileges. In other words, the sovereign is above all conceptions of absolute right and wrong....

Most members of our political class accept the authoritarian-allocation model as fully applicable to the United States. They dismiss Constitutional constraints as "obsolete;" many of them will admit it with the cameras rolling. Neither does the clash with our concept of individuals' rights bother them overmuch; they have a number of dodges with which to evade it, most prominent among them the notion of "compelling government interest." However they rationalize it, they see the proper sphere of government as the licensure of all things: decreeing who may do what, and with whom, and for how much, and under what circumstances, for any and every human activity under the Sun.

     Licensure and “compelling government interest” are interdependent; each requires the other to sustain it. In any analysis of the consequences of accepting those notions as valid, the emphasis should lie upon the government’s privilege of forbidding under threat of punishment. The power to say “you may” arises wholly from the power to say “you may not” – and to enforce the dictate at gunpoint.

     But why no government can validly claim to have “interests,” compelling or otherwise, seems to elude most people. The core of it is that in the American Constitutional system, a government is an agent: a hireling charged with specified responsibilities and allowed to engage in certain delimited activities in discharging them. The relationship is exactly parallel to a homeowner who engages a landscaper to trim his hedge. The job is defined by the homeowner, and the landscaper is to do that and nothing else.

     Imagine that the landscaper sees himself as having “interests” that include turning the homeowner’s hedge into a topiary. Would the homeowner be justified in becoming upset? Would he have a good case for refusing the landscaper his fee for that “service?” If the answers strike you as obvious, ask yourself why claims of “compelling government interests” should be treated any differently.

     It was with great joy that I stumbled this very morning upon this essay by Will Grigg:

The nation-wide convulsion of collectivist rage triggered by enactment of the Indiana religious freedom act illustrated that “civil rights,” as currently defined, requires the immediate punishment of any business owner who exercises the right to refrain from commerce. Yes, self-styled proponents of “tolerance” can succumb to the temptations of punitive populism, just like their counterparts on the Right.

     An even more compelling illustration of the totalitarian mindset that typifies what is now called “civil rights” was offered by Idaho’s HB 2, more commonly known as the “Add the Words” bill. If it had been enacted by the state legislature, HB 2 would have added “sexual orientation” of various kinds to the state’s Human Rights Act as a protected category with regard to discrimination in employment and “public accommodations.” It also would have explicitly criminalized – perhaps for the first time anywhere in the Soyuz – the act of reserving one’s right to refuse service.

     Section 67-5909 (5) (b) of the legislation would have made it a “prohibited act” for “a person” to “print, circulate, post, or mail or otherwise cause to be published a statement, advertisement, or sign which indicates that the full and equal enjoyment of the goods, services, facilities, privileges, advantages of a place of public accommodation will be refused, withheld from, or denied an individual or that an individual’s patronage of or presence at a place of public accommodation is objectionable, unwelcome, unacceptable, or undesirable.”

     If HB 2 or a future measure employing the same language were to be enacted, a business owner who posted the “right to refuse” sign could not only be sued, but dragged away from his property in handcuffs. A critic of the measure could likewise find himself being prosecuted for publishing a letter to the editor, a Facebook post, or a blog comment urging business owners to exercise the right of refusal.

     Punishing the peaceful expression of such opinions would be justified, according to the civil rights commissariat, because government has a “compelling interest” in preventing discrimination – even at the expense of individual liberty....

As an abstract fiction without body, parts, or passions, the state cannot have a legitimate “interest” in anything. Indulging, for a moment, the contrary view, the state’s interest in self-preservation would always dictate the expansion of power, and the corresponding curtailment of liberty. This shouldn’t be considered surprising once it’s understood that the “compelling state interest” doctrine had its origins in the Supreme Court’s 1944 decision Korematsu v. United States – which upheld the mass internment, in military custody, of Japanese-Americans who had broken no law.     

     Please read it all.

     The “compelling government interest” doctrine, under which any individual right can be abridged, modified, suspended, or simply ignored, can be used to justify any action by government, regardless of its consequences. Who, after all, gets to define such interests? It certainly isn’t you or I.

     The notion is entirely antithetical to constitutionalism, under which a government’s sphere of action is constrained to specified subjects and further limited by individuals’ rights. Had the Founding Fathers foreseen “compelling government interest” being put forward to rationalize the outrages we suffer today, they’d have given up on the whole Constitutional project as being too good for a people who’d kneel before such a lie.

     But we’ve accepted it. And it has swallowed us whole.

     I’ve written that the Republic, as defined by our Constitution and the legal tradition we inherited from our English origins, has fallen. If there’s a single, most culpable actor in this tragedy, it would be our judiciary, which invented the “compelling government interest” notion to justify the mass internment of West Coast Japanese-Americans during World War II.

     Will Grigg understands. To have encountered another commentator who grasps this critical point has lifted my spirits. More, he appreciates the infinite scope of that evil doctrine, which is now being used to suppress individual rights in every venue from “anti-terrorism” to “civil rights.” It’s the root of a great many evils. It must be ripped out of our soil for us to have a chance at freedom once again.

     I’ve also written of the right to discriminate. That right is indistinguishable from our more commonly understood rights. It comes into best focus when applied to freedom of association. If we forfeit that freedom when we engage in commerce, then we never had it in the first place. Neither do we have the right to engage in commerce as we choose; that devolves to a case of licensure, in which the privilege of doing business is bestowed or withheld by a government, according to conditions set by a legislature or a court. If that implies a right to keep you from earning the living that sustains your life or the lives of your loved ones, so be it. The Omnipotent State’s interests always come first, don’t y’know.

     Think about it.

     No doubt some leftist will seize on the above sentiments and immediately accuse me of bigotry: “You hate blacks and gays! You want to discriminate against them!” Time was, I’d have immediately said, “No, I don’t.” The years have taught me the folly of that approach. Today I reply, “So what if I do?” The apoplexy this often causes my accuser is entertaining enough to sell tickets.

     Americans’ rights are gone. We’ve given ground before the encroachments of government and the relentlessness of the Left’s propaganda, such that merely an accusing word is enough to start us backing away from the defense of our rights. The underlying malady is the desire for others’ approval: the need to be seen as “nice guys” even by those who hate us passionately and always will.

     It’s time to revive the prickly persona that has no truck with others’ interference in our preferences and choices. Along with that must go a certain truculence, even if the Left’s bien pensants should vilify us for it. Why should we care what they think of us? Aren’t our rights infinitely more important?

     It might be late in the year for it, but here’s a new resolution for 2015 even so: This year, be a prickly son-of-a-bitch, and proud of it.

     Will Grigg sees the necessity. Do you?


Mark Alger said...

It is a foundational principle of Smash-Mouth Constitutionalism that there is and CAN BE no such thing as a compelling PUBLIC interest -- let alone a GOVERNMENT interest, and that the very notion ought to be anathema to a free people.


Anonymous said...

Can't be said enough, Fran.

Linked and posted at It's About Liberty.


Reg T said...

Amen., Fran. When I utilized my right to discriminate against muslims - since true muslims obey the qu'ran and behave as ISIS does - Michael Z. Williamson descended to an ad hominen attack, calling me "deranged", instead of arguing his point that "most muslims are good".

I suppose that Libertarians that lean Left don't believe we have a right to even _explain_ why we choose to not associate with another group.