Friday, November 9, 2007

ENDA, Civil Rights and Civil Liberties

A quick post written by Julian Sanchez more or less sums up my position on ENDA or any anti-discrimination law for that matter, as "civil liberties groups would want the whole thing scrapped as a burden on freedom of association, because civil liberties are immunities from government imposition". I think this is spot on correct. Civil liberties, or immunities, those rights that pre-exist government and those rights that are not surrendered to general government (and were not under our Constitution) are not the same as civil rights, as civil rights are typically established through the democratic process and defined as a matter of positive law.

However, libertarians may want to consider an alternative approach. As KipEsquire has explained:

I stick to my view that it is no betrayal of libertarian principles to insist that a law that you may disagree with facially at least be applied as reasonably and as consistently as possible. Stated differently, even if a libertarian paradise would have neither room nor need for a hate crimes law, the fact that we have one demands that it be the most objectively sensible one possible — and that in turn demands that sexual orientation be included. A bad law applied well is better than a bad law applied badly.

Moreso, cutting off one's nose to spite one's face as a matter of principle is one thing. Cutting off the noses of other people to spite one's face is a whole other matter, and unjust. Footnote Four of U.S. v Carolene Products, one of, if not the key structural element of modern constitutional rights jurisprudence (for good or for ill), states in its last paragraph:

... Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious ... or national ... or racial minorities ...: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry

While practice, quite unfortuneately, has been inconsistent with principle, the principle is clear: if we have a legal regime that has civil rights laws that protects classes of individuals based on a designation of "being a discrete and insular minority" (and laws that will not go away anytime soon), then on principle, this should apply to all groups. Period. Libertarians may be (rightly) offended by the encroachment on natural rights as a matter of principle, but it is, to me at least, no less offensive and very bad policy to have laws applied unequally, whether we think those laws conform to our principles.

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