While I generally like Andrew’s journalism, I have to point something out as simply incoherent in his defense of Rand Paul’s appearance on Rachel Maddow.

Specifically, I’m referring to his statement “But was the Act in many respects an infringement of freedom? Of course it was.”

Well.  Yes, of course the CRA was an infringement of restaurant and hotel owner’s freedom to discriminate against their customers.  But not passing it would have been an infringement of freedoms too (or more correctly giving license to an ongoing infringement).

Let’s take it away from the ideologically loaded sphere of discrimination for a brief hypothetical.  Let’s say I own a piece of property.  My neighbor has an easement allowing him to walk across it without my permission.  Isn’t that easement an infringement of my freedom to do what I want with my property?  At the same time, were we to legislatively terminate his easement, isn’t that an infringement of his freedom to walk across my property?

Now, as a thought experiment, let’s say that the CRA set of rules barring such discrimination was our baseline.  Essentially, let’s assume we live in the world we live in today.

Let’s consider what would happen if we were to repeal the CRA.

Would it be any less an infringement of freedom to repeal it, infringing on private people’s freedom to choose the restaurant or hotel that they desire to eat in or stay at?  It’s an infringement of freedom to use coercive government force to prevent discriminatory choice by proprietors of institutions.  It’s equally an infringement of freedom to use coercive government force to enforce these discriminatory choices (by way of lending its authority to the choice of a property owner to expel such a customer).

I don’t pretend this is a particularly new insight; it isn’t.  It’s been written about for nearly a hundred years – see Robert Hale’s “Coercion and Distribution in a Supposedly Non-Coercive State” for an example (which was written in response to an early essentially libertarian viewpoint).  But to pretend that the CRA somehow increased the amount of government coercion going on simply ignores the baseline problem.  To make that assertion requires assuming that the infringement on freedoms that the “initial” state of affairs requires in order to operate are not, in fact, infringements.

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Privilege in Phoenix

May 14, 2010

The Arizona “ethnic studies” bill recently signed into law by Gov. Jan Brewer prevents the teaching of any class “designed primarily for pupils of a particular ethnic group.”  Doesn’t this mean we can no longer teach European History?  After all, that class is designed primarily for students of European descent; students of Latin-American, African-American, Arab-American, Asian-American, or Quebecois (I kid, I kid) origination aren’t the ones those classes are designed for, right? They can’t possibly be expected to want to learn about the influence of European countries on their own home regions, on the world, on culture in general.

That sounds ridiculous, doesn’t it?  Now replace “European” in that paragraph with “Latin American” and try it out again.  Isn’t that exactly what the Arizona Legislature is saying with this bill?

This is a perfect example of the acceptance of a majority or dominant viewpoint as neutral, an assumption that underlies a number of legal issues.  By implicitly designating the status quo as neutrality, even well-meaning attempts (and I am by no means implying that the Arizona bill is well-intended) to reduce the disparity between a hierarchically subordinated group and the hypothetically neutral majority operate to reinforce that hierarchy.

Take affirmative action.  Affirmative action operates to reduce the disadvantage, the distance from neutral, that black students operate under from historical oppression, right?  Wrong.  It operates to reduce the gap between white and black students.  Affirmative action’s goal, though not intended by its defenders, is to bring the disadvantaged onto a playing field that is level with the (white) majority culture. Of course, by doing so, they implicitly assume that that is where they ought to be.  They assume whiteness as normal and desirable.

Take pregnancy.  We treat it as a medical disability in many ways, because it represents a departure from the neutral state (non-pregnancy).  That neutral state is the majority (male) state, and by treating it as, effectively, a negative, a disability, we again operate to reinforce the notion that the non-pregnant state is the neutral playing field we seek to return everyone to.  For men, that is obviously quite easy – for women, it then gives rise to the choice between motherhood and career, a choice that is often seen as being at the root of issues for women in the workplace.

And these are often well-meant attempts to try to help the subordinated class achieve equality.  When used, even in ignorance of the idea, to try to reinforce hierarchy actively the effect is doubly powerful.  There’s the obvious active denigration of the subordinate idea (in this case, the idea that ethnic studies are a worthwhile item of study in and of themselves – and let’s even note that the term ethnic studies when used to refer to the class of studies dealing with non-white cultures is itself an example of this neutrality of the majority concept – as well as the simple denigration of the subordinated class as not as valuable as whites) and the more passive implicit reinforcement of the dominant hierarchy by treating it as the neutral item of value.

It’s possible the Arizona legislators responsible for this bill believe, in good faith, that it will prevent giving some kind of “special treatment” to Mexican-Americans and Mexican-American topics.  But if they really believe that avoiding special treatment of a discrete class is a worthwhile goal, what’s their justification for studying European history, or for that matter, American history?  The assumed neutrality of the majority masks the contradiction between their stated goal and their desired outcome.

Alan Siegel gave a lovely TED talk discussing the role of simplicity in legal agreements.  More specifically, he calls out the health care reform bill.  Why, when we have a 16 page Constitution with which we govern our country, do we need a 2100 page health care bill?

Well, we don’t.  We could have a 16 page health care bill, filled with generalities, and trust in courts or administrative agencies to fill in the blanks.  Just like with our Constitution.  We don’t have a 16 page Constitution, in practice.  We have a 16 hundred thousand page Constitution – and that number is probably conservative!  All of the decisions interpreting Constitutional provisions, the scholarship surrounding the Constitution, all of this goes into how our country is run, just with respect to the Constitution.  Ask a constitutional scholar – the crowning glory and the fatal flaw of the United States governing document is the same, that generality and flexibility.  Entire constitutional theories are generated primarily to provide better interpretative guidance, with less flexibility, out of those lovely generalities.

So, yes, we could write our health care bill that way.

Should we?  The complexity of the health care bill is partially an attempt to remove that kind of flexibility in order to retain the specificity the legislature intended.  Of course, some portion of it is a result of interest group negotiation, but that’s democracy.  In the end, the complexity of bills and legal language in general is not an attempt to avoid simplicity so much as an attempt to promote finality and clarity in a different way – not necessarily easy to understand initially, but with only one possible interpretation.

Whether that attempt works… is a topic for another time.

Somewhere deep inside we all believe that if we could just explain to someone else why we’re right, they’ll see the light and begin to believe as we do. When I run into a fundamentalist Christian (or, when they run into my godless Commie self) we both believe that the other person is thinking wrongly, that their conclusions are based on poor logic and if they’d just listen, they would see the light and begin having copious amounts of pre-marital sex (or tithing to some kind of horrifying Roberts/Falwell hybrid).

But they won’t. Listen as long as you want, they’ll never get around to buying your arguments. And thank (non-existent) God, I won’t get around to buying theirs either.

There’s a good reason for that. We’re not wired to think the way we think we are. We believe in our hearts that we are rational beings, that we derive our views via logic. But we don’t. A model proposed by Jonathan Haidt (an excellent explanation of which is contained in The Emotional Dog and Its Rational Tail – a title which summarizes the concept neatly) focuses on the idea that moral intuitions not only guide but in fact compose the basis of our cognitive judgments, which are post hoc rationalizations designed to match the intuitions our underlying moral frameworks give us. We think that we believe murder is wrong based on formal logic; in reality, our biology and neurology recoils from murdering others who we see as part-self. This is why othering processes are critical in all forms of violence – if you can see the other person as belonging to the same group as you, your neurological processes generate a profound biological basis for moral disgust at the action, which you will post-hoc rationalize to justify your decision not to commit the violent act.

In other words, all those judgments you make? It’s just your neurology generating rationalizations for the things you fundamentally believe. And trying to change someone’s fundamental beliefs? That’s hard. I won’t say impossible – everyone changes. But very, very hard.

The real problem requires that we go a little further into Haidt’s theory. When two people with contrary moral intuitions try to discuss something, their rationalization processes will examine the statements of the other person and reject them as counter to the fundamental moral logic they use to make this kind of judgment. It’s called the “bad faith problem” – we don’t see those arguing from alternate bases of judgment as incorrect, we see them as intentionally obtuse. They’re not just wrong, they’re willfully ignorant; they’re avoiding seeing the truth. You know. As we see it.

So let’s bring it back to the law. I am half of a lawyer (I have not yet figured out if I’m the law part or the yer; lately I suspect the latter more than the former), probably I should know something.

And here we relate back to a powerful theory of analysis of the law, critical legal studies, especially as developed by a fellow named Duncan Kennedy in a piece called The Critique of Rights. It’s a fairly complicated bit of theory and it uses lots of fancy words, but the core of the Critique is this – our Constitution does not define any specific outcomes when rights conflict with one another, and rights can always be construed to conflict. Once rights conflict, all of the trump cards that the term “right” holds in our minds – the notion of an insurpassable correctness – go out the window, because when it comes to a choice between freedom of speech and the separation of church and state, how do you decide which one is more correct? There’s no legal structure that allows you to assert the supremacy of one clause over another; as such, the choice of which right prevails is inherently political. Political, in this sense, meaning that it is a matter of policy, a choice made by a variety of metrics but one without any real notion of a “one true answer”. Pick your poison; they’re all equally valid.

So, if our cognitive judgments are fundamentally derived as post hoc rationalizations from intuitive moral structures, and our legal choices are inherently flexible and derived from our cognitive judgments, we’re left with normative legal arguments actually being conflicts between deep moral structures. The debate over whether abortion ought to be protected by law is a conflict between people who, deep down, see it as murder, and those who don’t. Any number of justifications exist to derive the legal or political position from that emotional intuition, but in the end, those arguments serve only to justify to ourselves; they’ll almost never convince someone of the opposite view from the one they hold.

Our normative debates are all too often pointless exercises. We’re yelling, not discussing, and we ought to treat it as such, or at least acknowledge that that is a strong component of what we do. Change will come slowly, generationally, as the new generation slowly shifts one way or another in the indoctrinations their moral structures receive.

I realize this is a somewhat pessimistic view. There are some rays of light – for one, these neural structures can change; people do experience conversions of thought that reflect a deeper internal change. It’s hard, and rarely will it occur when someone isn’t seeking some kind of change, but it is possible.

But in the end, it’s all just yelling. Relax and enjoy it.