The United States’ battle with racist rebels was a long and bloody affair. From 1861 during which they played no small part in the incitement and prosecution of the Confederate revolt until their final political defeat in the late 1960s, racist rebels cost the United States upwards of three-quarters of a million lives and likely in excess of ten percent of its gross domestic product. The bloodletting continued right up until the end with racist terrorists bombing a church in Birmingham in 1963 and racist government officials violently suppressing protests in 1965 putting the end of the violent conflict with the racist political movement over a hundred years after it had first begun. It is virtually impossible for people to look critically at the means by which they achieved their final victory over such a bitterly hated enemy.
It is for this reason, I would conjecture, that the Civil Rights Act of 1964, its amendments and its imitations in various state statutes have been allowed to violate our most jealously guarded rights, create economic and personal devastation for many people and produce numerous and palpable injustices virtually without opposition over the fifty years since they have been enacted. So strong is the American allegiance to the bringer of our victory that many readers may have misinterpreted the sentence that I just wrote. To be clear, I was not alleging that racists have somehow continued to cause injustices and devastation and the violation of our rights after the Civil Rights Act was passed. I wrote that the Civil Right Act itself has been a great evil, and should be repealed.
Having just advocated for the slaughter of this most sacred of cows, it is now incumbent upon me to give an explanation of why exactly this cow is not as sacred as it first appears. To begin with a broad overview, anti-discrimination laws, which now cover far more discriminations than racial, commit four serious sins. First, they punish people for bad thoughts rather than bad actions. Second, they necessarily punish many who are innocent of any wrongdoing at all. Third, they cause economic destruction. And fourth, they violate constitutional rights.
In addition to specifying what I am alleging against anti-discrimination laws, I would like to make clear the argument that I am not making. Those readers who have heard any argument against anti-discrimination laws have probably heard the libertarian argument that if private persons or organizations want to discriminate then they should be allowed to do so and in any event the market will probably punish them they do. I agree with this argument, but my objection to these laws is not merely that they enforce with excessive violence what private actors would do anyway after a process of market adjustments. It is that they cause serious harm independent of the accomplishment of their stated goals by their stated means.
The source of the evil in bans on discrimination is the Orwellian thoughtcrime at their heart. Even most people who are not libertarians would agree that whatever the government may do to control peoples’ actions, thoughts are beyond their proper reach. Anti-discrimination laws may appear not to violate this maxim. They do not, after all, specifically anathematize the mere thinking of bigoted thoughts. A plaintiff cannot win a lawsuit merely by alleging bigoted thoughts in the defendant…probably even in New York City.
However, it is clear that a law need not punish thoughts without more in order to create an unacceptable thoughtcrime. If a legislature were to ban, not the mere thinking of anti-government thoughts, but only breathing while thinking anti-government thoughts, no one would seriously contend that by doing so they would have brought their legislation out of the realm of thoughtcrime-creation. Similarly if the legislature were to ban eating or sleeping while thinking anti-government thoughts the same response would be appropriate. If the government prohibits thinking certain thoughts while carrying out any good and necessary activity then it is doing what no government should ever do.
This punishment of evil thoughts in conjunction with good and necessary activity is exactly what anti-discrimination laws do. Hiring and employment, renting apartments and the admission of students to institutions of higher education are all good and necessary things. Furthermore, ‘discrimination’ in those things under modern jurisprudence, means a malign thought or motive, not a physical action. Courts have specifically declined to second guess the business judgement of those who pick tenants or employees, only finding them liable for illegal discrimination when their motives for said judgements are animus based on protected class. Making an employment decision is not illegal. Even making a bad employment decision is not illegal. Making a bad employment decision due to having bigoted thoughts is illegal and even making a good employment decision with bad bigoted thoughts is still illegal at least in New York, even if you would have made the exact same decision without the bad bigoted thoughts.
The prosecution of thoughtcrime is bad enough to be deserving of opposition by itself, but the injustice inherent in policing thoughts is not the only sin of anti-discrimination law. While many would be eager to punish racists for acting on their racism even in their private affairs, and some would even be willing to punish racists for their thoughts alone, all but the most vicious progressive racist would agree that punishing someone who is not a racist for racism would be an injustice. Unfortunately, punishing people who have done nothing wrong, even by the standards of the thoughtcrime-prosecuting law, is what anti-discrimination laws unavoidably do.
It is a fact which none would dispute that people’s motives are often not readily susceptible of clear proof. Therefore, whenever one seeks to punish thoughts, one will have a difficult time telling the innocent from the guilty. To be sure sometimes the defendant will reveal what they are thinking. Perhaps the director of human resources texted a friend saying “I’m going to fire that employee because he’s black.” After a few high profile court cases in which people are forced to pay large amounts of money because of such messages however, even the most strident bigots will stop sending them, even if they don’t stop thinking the thoughts or making the decisions. That means that less certain evidence must be used to hold the bigots liable and by the nature of its uncertainty it will condemn some of the innocent along with the guilty. If juries refuse to convict on such uncertain evidence then the bigots escape punishment and anti-discrimination law fails in its goals.
If the prosecution of thoughtcrime and the routine punishment of the innocent are not sufficient deterrent to your support of anti-discrimination laws then perhaps the financial cost will persuade you. The exact economy-wide price of discrimination lawsuits is difficult to measure, but rough estimates seem to put the cost of insuring a business against discrimination-suit based liability at over $200 per employee per year. The U.S. labor force is roughly 160 million people. That makes the total cost of anti discrimination suits in this country roughly $32 billion per year.
Even still, the most serious effect of anti-discrimination laws is not the base injustice or the economic effect. It is the damage to our constitutional rights. To appreciate this, it is important to understand one particular aspect of constitutional law: the ‘state action requirement’. Put simply the constitution does not apply to people who aren’t the government. Twitter censoring Donald Trump is not a violation of the constitution (or any other law) because they’re not the government and therefore the first amendment doesn’t apply to them.
There’s a good reason for the state action requirement to exist. It would not be a pleasant country to live in if restaurants were prohibited from firing waiters who cursed at customers every minute of every hour of work because it was their ‘free speech’ or if bar owners were not permitted to refuse to serve alcohol to heavily armed people on the grounds that “their right to keep and bear arms was being infringed.” Certain exercises of constitutional rights are problematic for the people the exerciser is interacting with. Those people need to be able to condition the interaction on the waiver of the constitutional right.
This ubiquity of waiver is not a problem for the exercise of constitutional rights generally because when it is private parties that you’re dealing with you have options. If one employer demands too many restraints on your speech you can work for someone else. Donald Trump may be unhappy that Twitter banned him, but Gab is just a few clicks away if he ever wants to get back on social media. This pressure of choice deters private entities from being too aggressive in their demands on constitutional liberties (Twitter’s stock dropped significantly when they banned Trump for example).
The abominable feature of anti-discrimination laws is that they defeat the dual protections of choice and the constitution. By threatening employers with liability under evidentiary standards which make defense impractical, but liability more likely if their employees are found to be bigoted (because there’s no way at all of telling with certainty if they actually acted on said bigotry or not), employers can be induced to compel their employees to refrain from ‘bigoted’ speech which may feature in the evidentiary record at a potential trial.
So the employers prohibit bigoted speech…even on the employees’ own time…and they aren’t the government so the constitution doesn’t stop them…and they all do it because they’re under threat of law. By this means anti-discrimination laws effectively punish protected first amendment speech with a penalty of unemployability.
Censorship works. There’s a reason why an avowedly racist party has never run a candidate in the top two for the presidency since the 1960s. When any person found to be professing an ideology’s creed is punished for it, the degree of its propagation is naturally curtailed. It takes a very strong ideology indeed to withstand such persecution. Racism, the crudest sort of collectivism, was not even close. The defeat of our hated enemy was not without cost though. The very bomb with which we blew them to bits went off in our own country. How could it not? They were an internal foe. The shrapnel from that blast has embedded itself in our constitution, creating a wound in the form of a workaround to protections against the punishment of unpopular speech.
To illustrate how this wound in our national law has continued to fester, it is no longer only racists who are punished for their speech in this way. For those of you on the right, I have recently learned that “reproductive decision-making” is now a protected class in New York. Vociferously pro-life people are going to have a harder time finding jobs now. For those of you on the left, anti-discrimination does technically work both ways. For this reason, I was not surprised to hear that an employee in my industry (though not my company) was fired for posting on social media in vigorous support of BLM. Violations of the rights of anyone are a threat to the rights of everyone. It’s time we put on our sunglasses and see what evil hides within the blazing glory of our victory over racism.