Phony Civil Rights

Natural-rights libertarians reject egalitarianism, regarding it as a revolt against nature. On that premise, the only valid rights are those that give effect to self-ownership and private property. All rights created to give effect to egalitarian values are phony rights, and as Lew Rockwell has explained, “phony civil rights put your life in danger.”

Murray Rothbard was against all phony rights, “all ‘rights’ for special groups,” with no exceptions. He explains:

Government has been used to create a phony set of “rights” for every designated victim group under the sun, to be used to dominate and exploit the rest of us for the special gain of these cosseted groups. . . . The malignant New Class grant themselves and accredited victim groups ever increasing power to exploit, dominate, and loot an ever-dwindling group of middle-aged, white, English-speaking, Christian and especially heterosexual male parents.

These rights are constructed within the civil rights framework, which is convenient for constructing phony rights because civil rights law is “preapproved” as “our shared values.” Fighting against phony rights means rejecting the Civil Rights Act, and nobody wants to do that. They prefer to suppose that the Civil Rights Act has been hijacked to suit Far Left and communist ideals or that civil rights law is being “misrepresented,” and if correctly interpreted, its worst excesses will be avoided. However, the truth is that this legislation is designed to achieve precisely the goals it is in fact achieving. All these phony rights are a feature, not a flaw, of this legislation.

In discussing the criminalization of “harassment,” which is defined by the Equal Employment Opportunity Commission (EEOC) to include offending members of protected groups, Rothbard situates the roots of phony rights squarely in the civil rights apparatus: “The start of the evil can be pinpointed precisely: the monstrous Civil Rights Act of 1964, specifically Title VII, prohibited discrimination in employment on the basis of race, religion, sex, and other possible characteristics.”

Additional characteristics have since been incorporated within the 1964 definitions, as “sex” is now deemed by the Supreme Court to include sexual orientation and gender identity. The New York Times reported:

The Supreme Court ruled on Monday that a landmark civil rights law protects gay and transgender workers from workplace discrimination. . . .

. . . The vastly consequential decision extended workplace protections to millions of people across the nation, continuing a series of Supreme Court victories for gay rights even after President Trump transformed the court with his two appointments.

At the state level, further characteristics are protected, including discrimination based on height and weight. Newsweek reports:

Washington, New York, New Jersey and Vermont are racing on the heels of the new law, hoping to ban weight-based discrimination. Obesity discrimination in the workplace became unlawful in Washington in 2019. In New Jersey and Vermont, similar laws have been introduced that could radically change what’s expected in terms of equity and inclusion, experts said.

And despite having the lowest obesity percentage at 25 percent, Colorado is also set to adopt protections against weight-related discrimination by employers and landlords.

More recently, the bipartisan Antisemitism Awareness Act prescribed that in interpreting the definition of race discrimination where the protected person is Jewish, the International Holocaust Remembrance Alliance’s definition of anti-Semitism must be considered:

This bill provides statutory authority for the requirement that the Department of Education’s Office for Civil Rights take into consideration the International Holocaust Remembrance Alliance’s (IHRA’s) working definition of antisemitism when reviewing or investigating complaints of discrimination based on race, color, or national origin in programs or activities that receive federal financial assistance. According to the IHRA’s working definition, antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews.

Supporters of these phony rights do not see any reason not to expand them endlessly. After all, once you have an open mandate to create phony rights, there is no logical stopping point to how many phony rights you can or indeed should create. These rights restrict speech, as they impose legal liability for offensive language. Offenders also incur substantial financial penalties for discrimination. In a recent case of race discrimination brought by the EEOC against Tesla, a black man was awarded damages of $137 million by a jury for his hurt feelings occasioned by being shown a picture of Inki the Caveman by his colleagues at work. After a series of appeals, Tesla settled the case for $3 million. Penalties of that scale would bankrupt many smaller firms.

The customary response of conservatives when alerted to this growing disaster is to say that this must surely be unconstitutional and that the Supreme Court can be relied upon to strike it all down. Three responses may be made:

  • First, the Supreme Court’s endorsement of the EEOC’s extension of sex to include sexual orientation and gender identity reveals its generally favorable approach to the expansion of civil rights. This suggests that any confidence that the court would object to further extension of civil rights categories is misplaced.
  • Second, the phony rights activists are already making plans to pack the Supreme Court to forestall precisely this possibility. In 2021, President Joe Biden “issued an executive order establishing a commission to study the status of the Supreme Court, with an eye toward making serious changes, including perhaps expanding the number of justices.” Justice Ketanji Jackson’s dissenting opinions are already paving the way for critical race theories to be endorsed as the correct interpretation of civil rights. The NYT enthuses that “the first black female member of the Supreme Court wasted no time in finding her footing, asserting herself in dissents, alliances and questions from the bench.”
  • Third, even in cases where civil rights extensions are struck down, as with the case of affirmative action in college admissions, nothing changes. The old affirmative action simply redeploys under new terminology or “uses proxies like zip codes and euphemisms like ‘disadvantaged’ to shut down criticism of unqualified candidates.”

Those who criticize perverse civil rights practices as “illegal” overlook the fact that the civil rights apparatus provides such practices with watertight cover by creating a system of perverse incentives within which its multiple failures cannot be challenged. This is why Rockwell argues that phony civil rights put life in danger:

A recent story revealed that one-third to one-half of the students at the prestigious UCLA School of Medicine are unqualified. These students belong to racial and ethnic minorities; most are blacks and Latinos. One student couldn’t identify a major artery when questioned by a surgeon during an operation. Would you want a “doctor” like that to treat you? Isn’t the purpose of a medical school to train competent physicians? Why, then, were these unqualified people admitted? The answer is that the medical school was following the DEI guidelines.

In that case, the student who failed to answer the professor’s question “berated the professor for putting her on the spot.” She felt the professor was to blame for asking her a question she couldn’t answer. When offending protected groups is “harassment,” which is illegal under civil rights law, there is no room for opposition. There are long lists of words and phrases that cannot be said to a protected person as that would be a microaggression, which counts as illegal harassment. Moreover, academic whistleblowers speak on condition of anonymity, unwilling to risk their academic reputations by speaking out, so they will not support any move to have diversity programs struck down.

As long as the phony civil rights movement marches on, defenders of liberty will continue to be outmaneuvered. Rothbard refers to this as “the civil rights trap”: “On the entire question of legally and judicially imposed ‘civil rights,’ we have been subjected to a trap, to a shell game in which ‘both sides’ adopt the same pernicious axiom and simply quarrel about interpretation within the same framework.” Nothing short of the repeal of this monstrous machinery will suffice, and every step out of this trap should be encouraged. As Rothbard states, “Anti-discrimination laws or edicts of any sort are evil because they run roughshod over the only fundamental natural right: the right of everyone over his own property.”

Originally Posted at https://mises.org/

By Mises