Or, Maybe, The Base Is Pissed Off

Maybe Obama is losing his star power, or the Whitehouse bubble is blunting his political instincts. Or maybe, just maybe, we've noticed that he's turned out to be almost as big a douche as W. At this rate I'm going to vote for Bill 'N Opus in 2012.

Public Accommodations: A Ridiculous, Non-Hypothetical Example

This morning I was thinking about public accommodations law and trying to come up with a generally-supportable example of when it would be acceptable for a business owner to discriminate against a patron. All of the examples I was able to brainstorm seemed too far-fetched, so my thanks to David Bernstein for providing a ludicrous, 100% real example:

Here’s the story, from a VC post from 2006:

There is a German restaurant called the Alpine Village Inn, in Torrance California. A group of four neo-Nazis went there to eat, each wearing a lapel pin with a swastika on it. The management asked them to take off the lapel pins. They refused. The management asked them to leave. They refused. The management called the police, who arrested them.

Then, remarkably, the Southern California ACLU gets involved, and sues the restaurant for calling the police on the Nazis! This much I’ve confirmed from media accounts. According to the commenter who first alerted me to this story, “the defendants’ insurer eventually settled following unsuccessful pretrial challenges to the complaint, believing they could not prevail under California law!”

Ridiculous and, hopefully, the tail end of the distribution, but the point is nonetheless valid. What do we make of the management's actions? Was it acting within it's rights when it asked the gentlemen to remove their swastikas? I don't know that I've ever met anyone who would question the propriety of management's behavior in this instance. They no doubt exist, but as I've no idea what their argument might be I'm going to leave the question hanging. The "yes" position, on the other hand, is ripe for further discussion.

If we assert that the restaurant management was within their rights in this instance then we must accept that there are some circumstances in which it is acceptable to discriminate against individuals in the context of public accommodations. The question then becomes "Where do we draw the line?".

One potential boundary is a person's immutable characteristics, the theory being that such discrimination is especially pernicious because these traits are accidents of history and do not reflect on the person as a person. However, if we bind behavior solely by a prohibition against discrimination on the basis immutable characteristics, we end up with a system which probably wouldn't satisfy contemporary ethical intuitions. Sex will be a protected category¹, but what of gender, or sexual orientation? Are they fungible enough that they fail to pass the test for immutability? And this definition completely fails to encompass some categories, most notably religion, which have been deemed worthy of protection.

Moreover, immutability taken on its own is too simplistic; there are some aspects of a person's being, such as historic facts regarding past behavior/associations, which will never change yet may rightfully be said to reflect on the person. We might balk at the notion that someone would be treated differently because they used to belong to a union or a certain political party, but what if they used to belong to NAMBLA? Is it ok to discriminate in that case? The distinction between belonging to a particular race and being a past NAMBLA member is clear; the former state is thrust upon the person and the latter is chosen. Our ethical intuition tells us that, while there might be cases where it's legitimate to discriminate of the basis of a person's choices, its never acceptable to discriminate on the basis of traits which aren't chosen.

Which brings me back to religion... why is it protected? People convert all the time, become "spiritual but not religious", decided to have no religion at all, and so on; they choose which religion, if any, they may practice. So why protect it? I had this discussion with someone not so long ago and the answer was because "religion is special", by which I believe they meant that religious habits are so deeply ingrained that they might as well be immutable. Perhaps, but then should we protect other deeply ingrained behaviors? If we extend special protection to religion why not extend the same protection to non-religious philosophies? The only thing which distinguishes the two is their stance regarding the supernatural, something which hardly seems relevant when we're discussing civil rights.

And thus we're back to our Nazis. We admit an exception for religion which, if we were being consistent, leads us also to admit an exception for philosophic. From there its just a short jump to political philosophy, at which point the Nazis have a case. And yet we probably still think that the restaurant management behaved correctly.

Which brings me, somewhat circuitously, to my point: The division into "protected" and "non-protected" classes in public accommodations is entirely arbitrary. This, IMHO, is horrendous for a number of reasons:

• Governments at all levels have a really shitty track record when it comes to making fine distinctions.
• The process of deciding who deserves protection and who doesn't is, itself, an act of discrimination. It's far too susceptible to the biases and bigotries of a particular person/place/time to serve as an adequate basis for civil rights law.
• A corollary to the above is that the groups which are most likely to be protected are groups which already have access to the levers of power. Thus those groups who may really need/merit protection are the least likely to actually get it.

Ultimately there seems to be no rational basis for deciding who is worthy of protection. I'd much rather get rid of the law, and rely on the morality of my fellows, than give the government yet another tool to misuse.

---

1 Though my wife, a physician, argues that biological sex is defined by organs rather than DNA and, as such, can be changed to some degree.

As long as I'm on the subject...

Conor Friedersdorf is saying the same thing, but better and at length.

Rand Paul Is Not The Libertarian Jesus, And Other Observations

I had thought, after reading Amanda Marcotte's take on Rand Paul, that I would write a response like I usually do. Just go through her points one-by-one and explain why I disagree. But, frankly, I'm just tired of that, especially in the context of discussions of libertarianism. So I'm just going to rant for awhile instead.

Let me preface this by saying that, while I've found a lot of reasons to disagree with Amanda in the past, I still think she's one of the better bloggers out there. She has interesting things to say (one of the reasons why I read Pandagon regularly) and is obviously both smart and articulate. Which is why I find her out-of-hand rejection of libertarianism depressing.

There seems to be a certain segment of the progressive movement, of which Amanda is a representative member, that engages in a reflexive rejection of anything bearing the "libertarian" label. The problem here is that when these people say "libertarianism" they never stop to define what, exactly, they mean by the phrase. Which brings me to the title of this post.

Rand Paul is not the libertarian Jesus.

He's not even the libertarian pope. Rand Paul may be a libertarian, or even a Libertarian. He might, as some people claim, be a racist. Or he might have made the tactical error of trying to talk about an abstruse area of Constitutional doctrine during a 15-minute segment of the Rachel Maddow Show. All of which is irrelevant... Rand Paul doesn't speak for me. Nor, do I imagine, does he speak for a lot of other people who self-identify as libertarian. He's no more representative of all libertarians than... I dunno... Ward Churchill is representative of all progressives.

Have I made myself clear? If you're going to talk about libertarianism it behooves you to explain what you mean rather than just using this week's victim of foot-in-mouth disease as an exemplar. Now, since I intend to keep ranting for awhile, I'm going to define what it means to me.

Libertarianism starts from the principle of self-ownership. I alone have a natural right to decide what I will do with my life and person. If I choose to do so I can agree to give up some of this autonomy in exchange for the benefits of belonging to a group, and so on. Which is all very abstract; how does that play out in the here and now?

David Bernstein discussed the practical implications fairly well in his recent post on libertarianism and civil rights. Two important ideas which can be extracted from that discussion are:

• One of the most important roles of government is to protect its citizens from private violence.
• There are bounds to government power.

I would hope that the former, at least, is uncontroversial; it's hard to imagine a counter-argument. I think that most progressives would agree with the latter as well, at least as a statement of general principle; it's when we start to define those bounds that we run into disagreements. As I was chewing this post over in my head I realized that those disagreements are really just an echo of the more fundamental conflict between teleology and deontology.

I, as a libertarian, take a deontological view of ethics; the best way to preserve individual autonomy is to make the rules ahead of time and then apply them consistently. It's for this reason that, though I have a lot of quibbles with the details, I really like John Rawl's work on the concept of "justice". The progressive view seems to be more teleologically-oriented; I'll let Amanda speak her piece on the subject:

Liberals need to loudly and repeatedly lay claim to our broad, justice-oriented view of freedom. Freedom is the right to move about freely, instead of constantly run up against restrictions put upon you because of the color of your skin or the fact that you have to use a wheelchair to get around. Freedom is the right to take a job you wish without being run out of it because your coworkers will harass you to death because they don’t want to work with a woman. Freedom is being able to live where you want, instead of running against a wall of people that aren’t willing to sell or rent a home to a person like you. Freedom is something that belongs to all people, not just to those who have the money and social power to enforce their will on others. The government’s job is to protect freedom, and that means that it is the government’s job to restrict those who would use libertarianism as an excuse to deprive their neighbors of the right to live their lives freely, and to pursue happiness in a land of genuine equality.

To which I have two rejoinders:

• Please define "justice".
• How do you ensure all of these freedoms without trampling on other peoples' freedoms in the process?

It's not at all clear to me that the progressive view of "justice", to the extent that such a create exists at all, is internally coherent. And, while progressives clearly value some of the same freedoms as libertarians, they tend to mediate conflicting claims in an ad-hoc, intuitive fashion. Looked at in this manner its no wonder that progressives and libertarians are often at odds.

At this point I think I've described "libertarianism" well enough for the purposes of this discussion. Shall we move on to the substance of Amanda's post?

So, first, to the charge that libertarianism is "childish" or "juvenile": The Salon article to which Amanda links is guilty of the same stereotyping that I just got done talking about. Rand Paul isn't the libertarian gold standard. Most of the libertarians I know aren't particularly concerned with OSHA or getting rid of the Department of Education. There are far more important things to worry, like preventing bone-headed Senators from locking us all up. And Richard Epstein, Salon's "brilliant libertarian"? He might be support the CRA, but he wrote a book arguing that private employers should be allowed to discriminate when hiring. So, Salon, you still want his opinion?

Now, onto this lovely statement:

[T]he folks who write for Reason and work for the Cato Institute aren’t really representative of libertarianism as it actually exists in most of the U.S. Because self-identified libertarians are a tiny minority doesn’t mean that libertarian thought doesn’t enjoy widespread popularity amongst conservative Republicans. Indeed, libertarianism is the primary intellectual justification in this country for resistance to most social justice movements.

Ok... so when you're saying "libertarians" you're actively excluding Reason and Cato, two institutions which can credibly speak (to some degree) for libertarians as a whole. Rather, you're using it to refer to goobers who are picking-and-choosing libertarian ideas to provide intellectual cover for their agendas. Fine, but at least allow me the courtesy of the same: The folks who write for Pandagon aren't really representative of progressivism as it actually exists in most of the U.S. Because self-identified Pandagonians are a tiny minority doesn't mean that Pandagonian though doesn't enjoy widespread popularity among Bolivarian Socialists. Indeed, Pandagonianism is the primary intellectual justification in Venezuela for resistance to democracy.

Look, the above is incredibly silly, but it has exactly as much justification as the charge that Amanda is leveling at libertarians in general. Amanda and Salon are indulging in guilt by association; a bunch of idjits (who, according to Amanda, don't even self-identify as libertarians) citing libertarian principles to justify their base motivations in no way calls those principles themselves into question. It's the same damn line of reasoning that leads to Hitler/Atheism and Hitler/Darwin analogies; it's just dumb. Which goes back to my original observation about the need for specificity: I'd love it if Amanda (or anyone else for that matter) wrote an article titled "Republicans Are Cherry-Picking Libertarian Ideas To Provide Intellectual Cover For Their Nefarious Plots And Tarring Libertarians In The Process".

I'm mostly done here, but I wanted to hit on the Commerce Clause real quick before I got. Yeah, Amanda, some people have all of a sudden become real interested in the minutia of the Commerce Clause. Which is totally beside the fucking point... you hear about Gonzales v. Raich? You know, the one where the Commerce Clause was used to justify rules preventing someone from growing medical marijuana in their own backyard? How's that for "interstate commerce"? Some progressives might say that access to medicine is a fundamental concern of social justice, so maybe they should give a rat's ass about the commerce clause too?

In conclusion:

• Rand Paul Is Not Libertarian Jesus.
• Replicans Spouting Libertarian Principles Are Not Libertarians.
• Unchecked Government Power Is Bad For Social Justice.

The End.

A Weakness In The Defense of Atheistic Morality

With all due respect to PZ I think he's dwelling on the wrong question in regard's to Sam Harris' and Richard Carrier's theses. The problem is not so much whether atheists can make moral judgments but rather how do they defend these judgments to other people.

As I've said before, one major problem with atheistic systems of morality is that they are transparently anthropogenic. This, in-and-of-itself, is not necessarily a bad thing; I generally consider it positive that these types of systems acknowledge their bases in human reason. But this self-awareness makes it tremendously difficult (maybe even impossible) to defend moral judgments based on these systems.

Let's posit the existence of persons A and B who assert the moral propositions A and A, respectively. From a purely epistemic standpoint both assertions, being normative rather than empiric, have equal priority; there's no way to test the truth of either. So what do we do when the moral systems represented by A and B come into conflict?

Under theistic systems of morality this conflict is generally resolved via an appeal to authority:

• Person A: My book says A, therefore A; Person B is in error.
• Person B: My book says A, therefore A; Person A is in error.

They then go back to fighting over the same piece of land for another thousand years, each firmly convinced of their own rightness.

Such a resolution is impossible under atheistic systems since Persons A and B openly acknowledge that their respective moral systems are a result of their own moral intuitions. If they're intellectually honest they will recognize that the other individual's truth claims are equally as strong as their own, at which point they'll be left with no way to break the tie between A and A. This triggers an existential crisis, leaving A and B to gibber and clutch at each other as they contemplate the vast emptiness of an impersonal universe.

Of course the existential crisis doesn't happen in practice, largely because atheists suffer from the same failings as everyone else. When confronted with conflicting, untestable truth claims they tend to privilege their own positions over those as others. In civilized society we "agree to disagree" and get on with things which, pragmatically, works just fine but is a total cop-out from an intellectual standpoint.

Getting back to PZ's post, I find it not the least bit contentious that he can take a firm moral stand on the slaughter of a young girl. But what if someone were to challenge his position, framing it as a conflict between individual liberty and oh... say... "family honor". We're then in a situation which approximates A/A, with PZ arguing for the primacy of individual liberty on one side and the opposition arguing for the primacy of family honor on the other.

In this specific case I would be inclined to attack the pro-slaughter position as being internally incoherent as would, I suspect, PZ as well. But, as PZ has pointed out numerous times in his discussions of evolution vs. creationism, demonstrating weaknesses in your opponents' argument is not the same thing as supporting your own. There exists, I'm sure, an internally coherent value system which would support the slaughter of 13-year-olds in the name of family honor which, while we might find it repugnant, we cannot attack on the grounds of inconsistency. What then?

PZ says that such a system is "not fair or just", "does a great deal of harm", and so on. But, as he points out in his discussion of Sam Harris' thesis, these sorts of assertions are ultimately untestable as well, so we're back at square one. Fundamentally the pro-slaughter case is no stronger or weaker than the anti-slaughter case, so how can we censure the pro-slaughter policies of others while maintaining our intellectual honesty?

Which goes back to my main point: Atheists are fucked on this front. Theists are quite happy to go on appealing to authority; they're at least convinced of the rightness of their own position. Atheists, on the other hand, must acknowledge their own fallibility; our gut says that it's not OK to slaughter small children, but we could be wrong about that. Having made that admission we no longer have any grounds for argument when we encounter systems of morality with which we disagree.