Big brother antics

• Article
• Comments ()
• Click-2-Listen
• Videos

By

YOU CAN'T SAY THAT!

The Growing Threat of Civil Liberties and Antidiscrimination Laws

By David E. Bernstein

Cato Institute, $20, 180 pages

The Constitution is a profoundlyamoral document.It'smechanical. It establishes structures, sets up procedures, tells the government what it may not do. But beyond a few vague and unexceptional phrases in the preamble, the Constitution says nothing about the specific ends that government should pursue. That's left to the political process and the people.

But the Constitution is also a profoundly moral document, in that it vests structures and processes with enormous ethical and philosaophical significance. Every clause, every amendment, is the result of hard thought and experience. For something to be "unconstitutional" is a kind of secular damnation. And much of our jurisprudence is based on the notion that when political and legislative agendas contravene constitutional processes and rights, the Constitution, being prior and fundamental, should win out.

Too bad it no longer works that way. As David Bernstein, a law professor at George Mason University, shows in his fine little book, for the past five decades, anti-discrimination laws -- and the judges who interpret them and the bureaucrats who enforce them -- have consistently violated and abridged First Amendment guarantees of freedom of speech, assembly and religion.

In America today, it's "equality uber alles." In the beginning, this was not without justification. The government did indeed have a compelling interest in eradicating discrimination, first against blacks, then against women, then against minorities such as the disabled, the gay, and those of colors other than black.

It was compelling as a matter of justice, of decency, perhaps of ultimate survival. For the hard fact is: American history has always been as much a nightmare of bigotry and discrimination and hate as a dream of freedom and opportunity. And the further we get from the nightmare aspects (and the more intolerable the remaining real injustices become), the more we'll wonder how generations past could have been so blind -- or maybe not so blind -- to what they did.