Friday, April 24, 2009

"That All Groups Are Created Equal..."

If you are both old enough to remember the 1970s and a glass-half-full sort of person, you'll recall former California governor, and current California attorney general, Jerry Brown as an out-of-the-ordinary politician who is not afraid to follow his own muse. Here is the office of Atty. Gen. Brown on why Proposition 209, passed several years ago in California to outlaw discrimination (and in particular, affirmative-action) by the government of that state for any reason, violates the Golden State's constitution:

“Ironically, by effectively disadvantaging racial minorities and women in the political process, without an evident compelling governmental reason for doing so, [Proposition 209] seems to accomplish the very evil it purported to eliminate … racial and gender discrimination.” (Source)

It is, to be charitable, disappointing that a man who has reached the position of chief law-enforcement officer for the state of California has promulgated these views in public without embarrassment. Not just tradition but the full body of law in this country speaks only in terms of individuals. The landmark case on affirmative action in the United States, Bakke Versus Regents of the University Of California , explicitly rejected the idea that a state institution could discriminate to make up for generalized past discrimination against particular groups. Martin Luther King, Jr. marched on behalf of, and the landmark civil-rights legislation of the 1960s spoke in terms of, rights of individuals to be free from discrimination in housing and employment. (Such a policy raises issues of discrimination of a different sort, in that employees and tenants have greater rights than employers and landlords in the arena of commerce, but that is a post for another day.)

In the United States of America, in other words, groups have no rights. (Even if they did, it is hard to think of a less than infinitely elastic definition of a right to equality in the "political process.") It therefore makes no sense to talk about the rights of "women" to engage in political activism. An individual woman cannot be stripped of her right to vote, or to hold public office, merely because she is a woman. But "women" collectively have no "rights" in American law and philosophy relative to those of any other group. Spengler, as usual, puts it provocatively:

Abraham Lincoln, the next best thing to an American prophet, called his countrymen "this almost chosen people". Most Americans still would agree with him. Americans may not love their country more than other peoples, but they love it in a different way. This love is visible at any small-town celebration of Independence Day, in the tearful eyes of older people. They have not forgotten the humiliations that drove their antecedents out of their countries of origin European states always have been the instruments of an elite; Americans believe their government, is there to defend them against the predation of the powerful.

For all its flaws and fecklessness, America remains in the eyes of its people an attempt to order a nation according to divine law rather than human custom, such that all who wish to live under divine law may abandon their ethnicity and make themselves Americans. The rights of Americans are held to be inalienable precisely because they are a grant from God, not the consensus of the sociologists or the shifting custom of a particular historical period. Ridiculous as this appears to the secular world, it is embraced by Americans as fervently as it was during the Founding. Even worse for the secularists, it has raised a following in the hundreds of millions in the Global South among people who also would rather be ruled by the divine law that holds their dignity to be sacred, than by the inherited tyranny of traditional society.

This emphasis on the individual instead of the tribe is not just an idle philosophical difference. It is precisely because America is the ultimate individualistic nation that people from so many places, in so many cultures, have been able to come here and fit in relatively seamlessly. They possess the same rights to transact, to make contracts, to self-defense, and (very secondarily) to vote, as do any other individuals, regardless of race, religious affiliation, etc. (It has of course not always been thus, but it is our special genius that such injustices could be remedied by making an appeal to the inherent dignity of all individuals, not to the equal rights of all groups.)

America works only to the extent that people can be confident that their individual rights will be respected, in exactly the same measure as those of every other individual citizen. Once they are incentivized by the law and persuaded by the culture to think of themselves as members of groups first and individuals free to pursue their self-interest as they see fit last, the game is up. We become just another tribal society. I don't necessarily expect Jerry Brown, nor the vast tribal-grievance industry, to understand that, but I do expect them not to reinvent the law.


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