Monday, December 29, 2003


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.

The anti-discrimination movement was born out of necessity. Then, like everything else that hangs around long enough, it went wrong. It became a weapon of those on the ideological left for use against a mainstream that had little use for them and their agendas. It became a lottery for lawyers and clients hoping to turn grievances, no matter how trivial or silly, into large quantities of cash. It became a rationale for censorship and prior restraint, for compelled speech (all those forced apologies and “sensitivity” training sessions), and for governmental interference in every aspect of American life. And it suborned the First Amendment rights that, as Mr. Bernstein correctly points out, form the basis of all else in our common life.

“You Can’t Say That!” does an excellent and methodical job of cataloguing the insanity of anti-discrimination run amok. The standard horror stories are there. Forcing Hooters to hire men. Forcing health clubs to accept obese trainers. Trampling on artistic excellence. Trampling on academic freedom. Abridging the right of free association and the rights of people of faith.

Mr. Bernstein also shows the absurd cost of such ventures. The time and money wasted — or should we say, “redistributed?” — in lawsuits and bureaucratic oppression. The small businessesdriveninto bankruptcy. The philanthropists who didn’t give to their preferred causes and recipients because the government wouldn’t let them. The corrosion of society when the most easily offended set the standards, under penalty of law, for everyone else.

But Mr. Bernstein also offers an even uglier spectacle — how judges and governmental agencies routinely and with gusto ignored and/or manipulated the fundamental law to justify their agendas. To read some of these opinions is to understand why our law has become such a mess of contradictions, shoddy logic and outright junk. Military intelligence may or may not be an oxymoron. To judge by this book, legal reasoning certainly is.

So what’s a nation in search of sanity supposed to do? Perhaps, for starters, recover the notion that tolerance is a two-way affair. Minorities have obligations in this area, too. And also, perhaps, reaffirm the traditional Americandistastefor chronic complainers, and get to work on a new distaste for those who would use their “sensitivity” to bully, oppress and dominate others.

As a classic bumper sticker proclaims, if the people lead, the leaders will eventually follow.

Philip Gold is president of Aretea, a Seattle-based public and cultural affairs center.

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