CIVIL RIGHTS AND SOCIAL COOPERATION
Fr. Robert A. Sirico Co-Founder and President Acton Institute
Tim Penny-Vin Weber Distinguished Fellows Series Center of the American Experiment
Radisson Plaza Hotel Minneapolis, Minnesota November 12, 1996
The speech by Fr. Robert A. Sirico, on which this paper is based, was the last in a series of 1996 programs on "Religion in Minnesota's Public Square" held under the aegis of American Experiment's "Tim Penny and Vin Weber Distinguished Fellows Series."
Previous sessions had been led by neighborhood activist Robert L. Woodson, Sr., on why religiously animated programs tend to work best in turning around troubled lives and communities; columnist Mona Charen on the importance of tolerance on the part of religious minorities when it comes to public expressions of spiritual belief by those in the majority; and constitutional scholar Stephen L. Carter on the complicated intersection of religion, politics, and law.
For a final symposium in the year-long package, we asked Fr. Sirico, who is president of the Michigan-based Acton Institute, to discuss the connection between religion and civil rights. More specifically, we asked him to consider how Americans might better advance the latter by better grasping the relevance of the former. Here is a sampling of what an unusually quotable Catholic priest, theologian, and free-market scholar had to say that November morning in a presentation (and paper) titled "Civil Rights and Social Cooperation."
"Few words," he opened,
inspire such strong passions in the American political culture as civil rights. The word "right" itself suggests the tradition of St. Thomas, John Locke, David Hume . . . and other great thinkers. But add the word "civil" before the word "right," and it conjures up images of political conflict, regulations, lawsuits . . . and perhaps above all, social discord. Words that once suggested high aspirations and noble sentiments have come to be used as political weapons.
A moment later, he argued,
[I]t would be absurd and even dangerous to speak of civil rights apart from natural rights. It is absurd because natural rights are the necessary foundation to understanding civil rights. . . . If an authentic civil right is being violated, it suggests a violation of human rights too.
And after expanding on points such as these with precision and perspective, he had this to say in wrapping up:
What is the first step in making this [kind of progress] possible? It is not to appeal to our political representatives. Neither is it to join a pressure group for the purpose of exercising power in numbers. We must begin with ourselves, alone. . . . We must become tolerant of diversity. I don't mean diversity the way the Justice Department means it, which is uniformity imposed by the government. I mean a social system where we offer true forgiveness, and when things don't go our way, we often choose to let it pass.
By this, I hasten to add, Fr. Sirico, did not argue against righting wrongs which call out for fixing. Rather, he said (and I agree), we have become as a nation "too anxious to scapegoat others when something does not go our way."
In addition to serving as president, Fr. Sirico is also co-founder of the Acton Institute in Grand Rapids, Michigan, whose mission is captured by its full name: the Acton Institute for the Study of Religion and Liberty. It was a pleasure to host him for what was an exceptionally apt close to a consistently strong four-part series.
I should note here that Vin and Tim's 1997 theme is on striking the right balance in things multicultural, and that the message brought by the first speaker in this year's series -- economist Glenn Loury in June -- likely will build on Fr. Sirico's thesis particularly well.
I should also cite here the roster of generous institutions which make these first-rate programs, hosted by Messrs. Penny and Weber, financially possible in the first place. My colleagues and I are hugely grateful to Ceridian Corporation, Great Plains Companies, Lutheran Brotherhood, Naegele Communications, ReliaStar Financial Corporation, Schwan's Sales Enterprises, Star Tribune/Cowles Media Company, and SuperValu, Inc.
American Experiment members receive free copies of almost all Center publications, including "Civil Rights and Social Cooperation." Additional copies of this essay are $4 for members and $5 for nonmembers. Bulk discounts are available for schools, civic groups and other organizations. Please note our phone and address on the previous page for membership and other information.
Thanks very much, and as always, I very much welcome your comments.
Mitchell B. Pearlstein
Few words inspire such strong passions in the American political culture as civil rights. The word "right" itself suggests the tradition of St. Thomas, John Locke, David Hume, Thomas Jefferson, James Madison, Jacques Maritain and other great thinkers. But add the word "civil" before the word "right," and it conjures up images of political conflict, regulations, lawsuits, legal briefs, courtrooms, bureaucracies, and, perhaps above all, social discord. Words that once suggested high aspirations and noble sentiments have come to be used as political weapons. Yesterday's natural rights and civil rights seem to have developed into different concepts; often they are antagonistic.
This is a strange and even tragic development of the recent past. Originally, the idea of human rights and the idea of natural rights were interchangeable, and they rested on certain moral assumptions, which in turn were based on commonly shared understandings about the created order. They had nothing to do with lawyers and litigation but with human nature itself. Similarly with the term civil rights, which meant the application of human rights or natural rights to the political sphere. Civil rights dealt with the relationships we have with each other with respect to our civic communities.
Civil rights was a phrase used in reference to the state, but not exclusively so. It also referred to other aspects of civil society, including schools, churches, civic associations, neighbors, and even market relations. Whereas a natural right can be held and experienced by each individual in isolation, a civil right takes on meaning only in our relationships with other people. A person on a desert island retains natural rights, but the phrase "civil rights" has no meaning in an isolated context where there is no civil society to speak of.
At the same time, it would be absurd and even dangerous to speak of civil rights apart from natural rights. It is absurd because natural rights are the necessary foundation to understanding civil rights; it would be dangerous because it could provide license for some to violate the rights of others, disregarding the requirements of justice and perverting the very meaning of civil rights. If an authentic civil right is being violated, it suggests a violation of human rights too.
With civil rights resting on a foundation of natural rights, it does not require too much reasoning ability to recognize what they may consist of. If it is our natural right to associate in the institution of marriage and raise families, the civil right would refer to the state's obligation not to interfere and communities' responsibility to uphold the virtues that flow from marriage and family life. If it is our natural right to own and control property we have produced or acquired through contract, it is a civil right to not have that property arbitrarily taken from us or collectivized by the state. Socialism, for example, would be contrary to civil rights because it is contrary to human rights.
The classic notion of law is as organic to this understanding of civil rights as it is to natural rights. No one has to make up the laws of society; they are a product of custom rather than of legislation. In the West, it has always been there and it was superior to king and people alike, as Francis Canavan argues. The law is the social expression of the commonly understood rights of individuals and the groups they form and the expression of our mutual obligations to each other under transcendent law.
(II) Division Rather Than Cooperation
In the understanding of the Roman Republic and the work of St. Thomas Aquinas and the early scholastics, a right is the "just" thing itself and is necessarily connected with a notion of our responsibilities before God. Legal scholar John Finnis argues that the meaning of the word "right" began to change after 1625 with the writings of Hugo Grotius, and, before him the Spanish Jesuit Franciso Suarez. A right began to be seen as a something one possesses as a claim, most probably against others.
In this view, the inevitable outcome of this strain of thought set in motion nearly 400 years ago is the present view of civil rights as a power wielded by individuals and groups against other individuals and groups. Without tossing myself into this dispute, I personally doubt that it is necessary to dig this deep to discover how it is that civil rights came to represent social division rather than social cooperation.
There is a much simpler explanation, and I don't think we need to look much further back than a generation to find it. It began, as Dinesh D'Souza argues, when society began to define rights in terms of groups and the struggle between groups as opposed to universal propositions about individuals and civic communities. This is a relatively recent development. Moreover, I doubt that rediscovering an authentic meaning of civil rights is going to require a repudiation of the Enlightenment itself. The dilemma of civil rights -- as well as many of other politically difficult problems -- can be reclaimed by rediscovering a richer meaning of natural rights and their universality, and seeing that they are most securely upheld by people who have more faith in God than they have faith in the state.
There can be little doubt what it is that has set so many great scholars -- Professor Finnis among them -- on the search for where we went wrong in our thinking about political rights and human rights. We live in a society in which we all claim to believe in equality, yet we seem unable to agree on what that is, much less how to bring it about. Government these days legislates based on the assumption that there are only two relevant entities: the individual and the state. Mediating institutions between the two -- like family and civic association -- have only recently reentered the public square as institutions worthy of social and legal consideration.
Moreover, in modern politics, what Prof. Mary Ann Glendon calls "rights talk" has become a game not altogether different from the child's game of "King of the Mountain." The goal is to get your rights through any means possible and hold on to them as long as you are able. When whole societies play the game, the process is capricious and costly, and the end result is political, social, and culture fracturing.
Certainly we can all agree that it is time that this socially destructive child's play come to an end. We must discover ways to promote a higher degree of social peace than we have seen in recent years. We need to rediscover a common ground upon which all reasonable people can stand. We need a new intellectual consensus on what constitutes civil rights so we can bring this zero-sum game to an end.
I do not intend to present a lengthy discussion of court cases and legislation. Nor do I intend to present a complex legal argument or a controversial political program. There is no shortage of that style of argumentation these days. It is difficult, if not impossible, to talk about any such matters so long as widespread disagreement exists even on basic terms such as freedom, rights, and equality. What is missing, I contend, is serious reflection on the more fundamental religious, moral and cultural foundations of the civil order itself. As Arthur Schopenhauer reminded us, "to preach morality is easy, to give it a foundation is hard."
(III) First Principles
I am suggesting that we begin again with first principles, and think anew about ground rules for engagement on the civil rights issue. We need what a previous generation took for granted: a firm foundation for understanding the source of rights; a social logic to evaluate our current dilemmas; and a common ground for understanding what constitutes fairness and justice in our civil and economic relations.
I doubt that such an enterprise is possible without reference to religious faith, which poses a difficulty given the marginal status of religion in today's public square. To overcome this difficulty requires a deeper understanding of the true source of rights, and the historical link between the theory and practice of natural rights and civil rights, and the religious motivations of those who sought to apply them to civil life. I've already mentioned St. Thomas as a rights theorist. His recovery of an older political tradition was motivated by his desire to blend reason and faith into a firm foundation for the just social order.
The author of the Declaration also blended reason and faith into a courageous moral statement on behalf of American liberty. Similarly, the argument made against slavery was rooted in this view of individual rights and, in turn, on firm religious convictions. And this is also true of the modern civil rights movement, which sought to eliminate artificial impediments to the freedoms of individuals to live out their social and economic lives within an overall framework of universal rights.
It would be impossible to imagine any of these movements having accomplished their goals apart from religious conviction. The reason is not only strategic. The strong demands that political action requires of people are undertaken when moral convictions derive from more than mere deduction. To be realized, a moral imperative must rest on a conviction that God, as our Creator and the final judge of human affairs, wills it to be so.
Today, as we know, civil rights and religious rights often come into conflict, and that conflict is virtually always resolved by the courts on behalf of civil rights. The case of prayer in school is a good example, as are the many cases of religious expression in public. Some might go so far as to say that what is called civil rights today -- whether or not it has any bearing on the original notion that was so closely linked with natural rights and the natural law -- has itself replaced religious faith as the ruling paradigm for determining the right and wrongs of social norms.
Who suffers more social and legal penalty today? The landlord who refuses to rent to a gay couple or a street thug who nightly threatens the lives of innocent people? And which of the two will pay a higher price for his actions? A corporate manager who lets a tasteless comment slip in a private board meeting? Or an arsonist who torches a few businesses during a night of social protest? The false view of civil rights that regards crimes against person and property as excusable has indeed become the faith of the age.
But this may be changing. In recent years, many astute social observers, Irving Kristol among them, have taken notice of a strong religious revival that is sweeping the country. I tend to agree, and thank God for it. We don't hear that much about it because those who report the news have little interest in the subject. But that doesn't diminish its social, cultural, and even political importance. People with a strong faith in God are less disposed to tolerate injustice around them. They have a strong desire to cause civic life to conform to moral tenets and priorities they believe God requires in our personal lives.
This may be the key to understanding why the notion of civil rights seems to have undergone a dramatic shift at the very time American society was becoming more and more secular. The American notion of civil rights, that once had a foundation in religious struggles, over time became less related to morality than with the raw use of power. As the religious revival continues to spread, we will also see growing efforts to bring civil rights laws more in accord with a fundamental notion of natural rights.
It is for this reason that I refused to join the chorus of those who denounced the recent California Civil Rights Initiative, which merely reasserted the plain principle that no group ought to be legally privileged based on religious, racial, and sexual characteristics. The wording of the initiative was indistinguishable from that which gave rise to the previous civil rights movement that removed artificial barriers to social and economic advancement. I'm not suggesting that this particular ballot initiative represents in precise terms the ideal; but the irony of the protests against it are impossible to miss.
(IV) A New Consensus
Thus, I believe it is time to work toward a new consensus on civil rights that is more accord with the older notion of natural rights, one that relies more on custom and goodwill than on state power, and one that is infused with a sense of religious faith as indeed the older demands for civil rights always were. The process of arriving at a new consensus will be difficult, but it is well worth the effort. The remainder of my talk will be devoted to discussing three proposed principles for thinking about civil rights.
They are as follows. First, civil rights should promote the common good. Second, civil rights should promote economic participation and sustainable prosperity. Third, civil rights should be a means of promoting justice and not a means of creating social conflict. I am prepared to support any conception of civil rights that meet all three of these criteria. At the same time, it is reasonable that we take a more careful look at practices that are not in accord with these principles.
As we discuss these three principles, think about stories you have heard or read in the newspapers on the subject of civil rights. Consider how the circumstances and outcomes might be different if these principles are brought to bear in our legislatures, courts, businesses, and in our own lives.
1. The common good
Civil rights should promote the common good.
Many people say there is no such thing as the common good. We should look after ourselves and our group, take what we can get, and forget the rest. It is a fashionable attitude, but it is beneath a civilized people. "Man is born for citizenship," Aristotle said. That suggests some notion of rising above selfishness to attain something good for people who constitute the commonwealth. The Founders spoke of the general welfare. They, and the traditions they drew from, were profoundly aware that individual rights cannot be secured apart from institutions that foster social consensus on concepts like liberty and peace.
In this country, those institutions are designed to protect the common good against arbitrary uses of government power and uncontrolled private passion. Our system of government features devices carefully designed to restrain both, including separation of powers, checks and balances, the notion of federalism, and demarcations of public and private spheres of life.
Sometimes people speak of individual rights and the common good as an either/or proposition. But the whole point of the American experiment is to show that this is not so. The good of the many is bound up very closely with the good of the one. Even economists have discovered that it is inaccurate to speak of self-interest in the literal sense. Our own good is so closely tied to the good of others -- whether it be our families, communities, or the nation as a whole -- that we frequently set aside short-term selfish considerations for long-term gains.
In his work Free Persons and the Common Good, Michael Novak makes a powerful case that the notion of the common good is ultimately inseparable from the freedom of the individual to choose the good. He cites Catholic teaching from Vatican II: "The common good is the sum of those conditions of social life which allow social groups and their individual members relatively thorough and ready access to their own fulfillment." And Mr. Novak developed this syllogism: "The free person is ordered to the building up of the common good; the common good is ordered to the fulfillment of free persons."
Despite claims to the contrary, the classical liberals, who defended the modern concepts of freedom of speech and freedom of economic enterprise, always held to a view of the common good. Adam Smith said that restraining selfishness and indulging benevolence constitutes the perfection of human nature. F.A. Hayek said the primary worth of economic initiative is the development of the community. Ludwig von Mises believed that classical liberalism was the first political movement aimed at promoting the welfare of all.
As all these thinkers remind us, the free market economy is consonant with the general welfare. When the market is free, producers find profitable reward only in the service of others, people who together make up the consuming public. The entrepreneur, whose creativity is a reflection of the original creative acts of our maker, is rewarded by discovering and meeting the unmet needs of the community. The beauty and mystery of the market is that it reconciles the good of the individual with the good of all.
Every person who participates in this market does so without coercion or compulsion, but as an act of free will. To the extent our actions serve the good of others, we benefit individually. A fine definition of market competition is striving for excellence in the service of others. On the other hand, if the market is cruel to anyone, it is he who disregards the needs and values of his community and pursues a path of blind self-interest.
Anything we can do to protect the institutions of the market is also an advance in protecting the common good. Those who want to circumscribe the market process, to injure the right of free contract, to freeze labor markets, to cartelize the system of competition, or to place heavy and artificial burdens on entrepreneurship, have forgotten this point. All these actions limit everyone's freedom to choose and hinder the development of the community of persons.
Yet it is not only enterprise that grows out of voluntary action. Our nation also has a long tradition of private associations that protect the common good. Alexis de Tocqueville said that, "if men are to remain civilized or to become civilized, the art of association must develop and improve among them at the same speed as equality of conditions spread." In his view, Americans were distinguished by not setting too high a value on their own interests. If an American "were condemned to confine his activity to his own affairs," he wrote, "he would feel an immense void in the life which he is accustomed to lead, and his wretchedness would be unbearable."
It is this spirit which animated the movement for civil rights in this country. It was a desire to widen the definition of the common good to include not only the privileged or the majority, but also the underprivileged and minorities. It was a fulfillment of the common good through a social and legal acknowledgment of the rights to freedom all people had, but which some people had been denied. Who had denied these rights? Governments had denied them because the law discriminated against persons on arbitrary grounds. It had excluded people from full participation in the voluntary development of enterprise and community. It was a consequence of the tragedy and immorality of slavery.
But the institutions that were born at the founding of the country proved capable of self-correction, even if it took time and involved the self-sacrificial commitment of millions. Hear the words of the Civil Rights Act of 1866. All citizens of the United States "shall have the same right, in every State and Territory, to make and enforce contracts, to sue, to be parties, to give evidence, to inherit, purchase, lease, sell, hold and convey real and personal property, and to the full and equal benefit of all laws and proceedings for the security of person and property."
What a beautiful passage. It guaranteed the opportunity of fulfilling the promise of American life. It did so by securing equal rights, not by sustaining old privileges or creating new ones. It did away with classification by race or social status. It codified the natural order of liberty by securing person and property. It did not create the power of government to deny rights to people, or decide who should and should not benefit from the right to own property and make contracts. In sum, it was the fulfillment of the Declaration's promise of equality.
Unfortunately -- and this is a great tragedy -- the Act went unenforced at the local, state, and federal level. Nearly one hundred years later, equal rights in the form of the original Civil Rights Act were not secure for people on the arbitrary grounds of race.
Whenever a law denies fundamental rights to some that it grants to others, it is an unjust law. The civil rights movement was correct in speaking for the interests of the community which was harmed by exclusion from the definition of the general welfare. During this time, it was possible and proper to speak on behalf of group rights and group claims. The people who were doing so were objecting to laws that took explicit account of these very groups and communities. The laws themselves imposed disabilities for certain groups.
Today, our political landscape is dominated by people who claim to speak on behalf of groups, but their justification in doing so is much less plausible. The days of unanimity of group interest are gone. To be sure, discrimination against whole groups exist. But it is not legal discrimination, and therefore it is an error to speak on behalf of any group's legal rights. When we do, we run the risk of misrepresenting the values and interests of those on whose behalf we are purporting to speak.
Too often, the attempt of modern day activists to speak on behalf of groups collapses into demagoguery. And that term applies to any who dogmatically insist they represent the group. That goes for those who claim to represent the young, the old, the abled, disabled, whites or blacks, the majority or the minority. Everyone is entitled to his opinion. But everyone is not entitled to pretend as if his opinion is unanimously agreed to by any one group, no matter how we define it.
Ending this practice would take us a long way towards reclaiming civil rights on behalf of individual freedom and the common good, and away from group rights over and above the community at large. James Madison saw how factions have normally injured the common good. Factions, he said, "have divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to cooperate for their common good." To avoid factions, he recommended a republican form of government, which gave every individual equality under the law and equality of rights. This form of equality makes as unnecessary to form into factions to secure rights.
Ideally, the common good is best met in a society that makes politics unnecessary. So secure are people in their essential rights and liberties, which do not come at the expense of others, that they are free to concentrate time and energy on the pursuit of virtue and enterprise, of family and community, and of conscience and faith. We are a long way from this ideal. This is because we have disregarded Madison's advice to avoid faction. The cause of civil rights and the common good generally would do well to revisit his warnings.
2. Economic participation
Civil rights should promote economic participation and sustainable prosperity.
As the wording of the Civil Rights Act of 1866 suggests, the foundation of civil rights should be liberty and property, which includes the right of contract, the right of redressing wrongs against person and property, the right of inheritance, the right of exchange, the right to exercise the freedom of religion, and the right of economic initiative.
In an eloquent dissent in the Slaughter-House Cases of 1873, Justice Joseph P. Bradley wrote the following: "For the preservation, exercise, and enjoyment of his rights, the individual citizen, as a necessity, must be free to adopt such calling, profession, or trade as may seem to him most conducive . . . . Without this right he cannot be a freeman. This right to choose one's calling is an essential part of that liberty which it is the object of government to protect; and a calling, when chosen, is a man's property and right. Liberty and property are not protected where these rights are arbitrarily assailed."
This is, however, not the case today. Myriad laws exist which circumscribe these rights, making economic participation too expensive for those who are most in need of opportunity. It is more costly today to begin a business than ever before in American history. The hundreds of volumes of federal regulations, taxes, and mandates make the task difficult for those who cannot afford to waste a dime of capital or pay expensive fees to accountants and lawyers. The task is made more difficult the more successful the business is. Congress has mandated more regulations and taxes for larger businesses than smaller ones. But this has the perverse effect of actually discouraging expansion, growth, and job creation.
F.A. Hayek said liberty "describes the absence of a particular obstacle -- coercion by other men. It becomes positive only through what we make of it." By Hayek's definition, liberty is on the decline today, and has been for some time. Our society has become increasingly ruled by coercion, and our economy hampered by artificial barriers to economic progress. In the final analysis, this is the effect of legislation that shifts the costs of the welfare state from public sector fiscal policy over to the private sector. Benefits that are mandated have high costs, even if they are less visible that the costs associated with taxing and spending.
Consider as a small example the rigorous licensing laws that exist in most service-sector industries. They are usually justified on the grounds of keeping quality high. But often, these laws, strongly enforced, merely provide a pretext for keeping the market from becoming too competitive. The taxicab monopoly is a classic example. Many large cities suffer a transportation shortage even as those who have legal rights to drive others around cling to their privilege at others' expense.
I raise the issue not to advocate that any licensing laws be done away with. I'll leave that issue to the policymakers. I raise it to point to the ways that legal barriers can have serious consequences for keeping away potential rivals in the market and for preventing the economic advancement of whole communities of people. They circumscribe the right to economic initiative.
The modern regulatory state has also circumscribed the crucial right to bargain over terms and conditions of employment. Without this right, which is essential to the fulfillment of human dignity itself, we make a mockery of the ideal of equality of opportunity. Yet the high costs of labor, forever on the rise, and the legal inflexibility of negotiating lower ones, has kept people from becoming vital parts of society's division of labor.
If we raised the minimum wage to $1,000 an hour tomorrow, we could create an unprecedented amount of unemployment with the stroke of a pen. Yet people who realize this have difficulty also realizing that even marginally high higher wage floors have the same effect, even if effects appear in subtle ways.
The Department of Labor has recently become fond of conducting sting operations against businesses to discover whether they engage in child labor. But what constitutes child labor turns out to be a very complex matter. Young teenagers are prevented from working more hours per day and per week than some bureaucrats in Washington, D.C. think they should.
As a result, young people are being denied essential opportunities for economic advancement and business is being denied the chance to provide it. It is time we revisit these laws and ask whether it is really true that a single agency in Washington is capable of knowing exactly how much young people should work, or whether we ought to adopt a less paternalistic attitude toward the right of people to make contracts for themselves.
Again, I raise these issues not to present a legislative agenda, but only to illustrate the way in which economic opportunity is so crucial to a serious concern for securing essential rights. A freer economy would take us closer to the ideals of the pioneers in this country's civil rights movement.
But rather than freedom, those who claim to desire the economic advancement of everyone have turned to coercion and compulsion. The law has done few real favors for people by creating and attempting to sustain what is essentially the illusion of prosperity through wealth transfers, whether those transfers are made to corporate executives or to the middle-class through generous entitlements. Pseudo-prosperity fosters not independence but dependency, and it creates a constituency that becomes a faction. Much of modern politics is nearly defined by this sort of activity. From the perspective of the common good, struggling for wealth through lobbying is wasteful and inefficient.
Civil rights advocates have always known in their hearts that the long-term advancement of minorities must ultimately rest on an a solid economic foundation. The history of the last 30 years shows just how true this is. But somehow this goal has been lost in the fray. Political action has come to replace individual entrepreneurial action.
Let it be remembered that the achievement of political power is the most ephemeral of all victories, despite what our political culture wants us to believe. But to have skills, to have ethics, and to develop the virtues of honesty and persistence, and to use those virtues in practical ways in the
marketplace -- that is a lasting source of dignity and self-respect. We need to work for conditions that minimize the opportunities for political power and maximize the opportunities for economic success.
Civil rights should be a means of justice, not a means of creating social conflict.
Conflict is a word we readily associate with the words civil rights today. That is not as it should be. If the rights to person and property were strictly guaranteed, we would have a clearer understanding of what is mine and what is thine, and how that property can be peacefully traded in the marketplace. This minimizes the potential for conflict. But the lack of definition that pervades the modern practice of civil rights has been little more than a source of social division.
The Americans with Disabilities Act, passed in 1990 and hardly ever questioned by the political class, has proved to be a watershed in helping us understand this. Disabilities lawsuits are the fastest growing area of civil rights law. The overwhelming majority of cases are not of people with obvious physical impairments who have been denied rights. Most of the cases are of people who did not receive the promotion they expected suddenly discovering a new weapon with which to bludgeon their benefactors. A full 10 percent of disability cases before the Equal Employment Opportunity Commission are classified under the category of mental disabilities, evidence of which can include not showing up for work on time.
Very few of these cases have gone to court. Why? Because businesses have calculators. They calculate the costs of litigating for 18 months against the federal government's lawyers or settling out of court with a one-time payment to the plaintiff. Many times, this practice is not the practice of rights enforcement; it is rightly regarded as economic extortion. It is bad enough that people's rights to property are being subtly undermined. But the highest cost is social and cultural. It has fostered an atmosphere of fear and mutual suspicion instead of the social cooperation that is supposed to characterize economic exchange.
The word "discrimination" has come to be seen as grounds for arbitrating virtually every political and economic complaint that one person has against another, whether in employment or public accommodations. But remember this: When we call on the government to judge the correctness or incorrectness of people's motivations, as opposed to simply establishing the rules of conduct, we end up giving up some of our freedoms, especially the freedom of association.
Today's major political problem is not that one group has more rights than any another group. It is that all groups are struggling with each other for a piece of the public pie. As the spoils are passed around, the pie gets smaller and smaller every day. The struggle has gotten ungenerous, messy, and even gruesome at times. The tragedy is that people should feel themselves in need of forming groups, not to achieve the fulfillment of their natural liberties, but to claim their entitlements against others. This is not the vision that inspired the original civil rights movement, which grew out of a faith-based understanding of natural rights. It is a shift that deserves critical reappraisal.
The most important case for reappraisal is the growing sense we all have that we may never recover from the social division created by contemporary civil rights struggles, including the most tragic of all, racial conflict. This issue is not to be taken lightly. In praise of hedonism, Lord Byron sang:
Let us have wine and women, mirth and laughter
Sermons and soda-water the day after.
But if harsh words continue to fly the way they have in recent years -- with everyone feeling free to hurl the most vile accusations back and forth -- it will take more than sermons and soda-water to cure us. Let us exercise temperance and prudence in our social relations now before it is too late.
(V) Civil Rights and Individual Rights
Good social ends can be achieved only by the employment of appropriate social means. But how can we set ourselves back on the track of using the appropriate means? How can we make civil rights a source of social cooperation instead of a source of conflict? I propose that we begin to think of civil rights as something that is essentially the same as individual rights.
If a person has been wronged, that wrong must be rectified. Justice, in the ancient formulation, is giving to each his due. But the term Justice begins to lose its clarity when we speak of social justice or economic justice. Those formulations are more likely to inspire litigation, public brow-beating, and the formation of pressure groups for the purposes of intimidation and political power. And that takes us in exactly the wrong direction.
"The end of the law," wrote John Locke, "is not to abolish or restrain, but to preserve and enlarge freedom." So it should be with civil rights. We are not out to make it more and more difficult to live under conditions of social peace; we are out to expand opportunity and enlarge our sense of community to take full account of all members of society.
What is the first step in making this possible? It is not to appeal to our political representatives. Neither is it to join a pressure group for the purpose of exercising power in numbers. We must begin with ourselves, alone. It is said so often that it sounds like a cliche, but I'll repeat it: We must become tolerant of diversity. I don't mean diversity the way the Justice Department means it, which is uniformity imposed by the government. I mean a social system where we offer true forgiveness, and when things don't go our way, we often choose to let it pass.
We must stop viewing every personal slight as a social catastrophe in need of government intervention. If you are a male who has been passed over for a promotion, don't blame your supervisor and sue. It's too easy to say, I would be more successful but so-and-so is keeping me down. If you are a women, you face special challenges, sexism among them. But rather than turn to the courts, turn to your own will and sense of determination. Whatever your gender or skin color, if we avoid the temptation of accusing others, we help the cause of social cooperation.
I am not suggesting that specific wrongs should not be righted; I am suggesting that we have become too anxious to scapegoat others when something does not go our way. In our diversity, we have both incapacities and unique strengths. The market has a special way of punishing irrational discrimination. It denies profits and long-run success to discriminators. However imperfect the competitive process may be, it provides liberty, wider opportunities, and diversity within which each person can play a vital role.
But under this system will people have unequal incomes and unequal amounts of social status? Absolutely. That is also part of diversity. We cannot have both equality of result and the freedom of economic enterprise and opportunity. We must avoid the politics of envy, which means using the government to bring down those who are successful solely because others are not as successful. Neither should we fall prey to the wish for an egalitarian society, which is always and everywhere the coercive society. Tolerating the rich, even the filthy rich, is a part of the process of becoming mature, even as we do not confuse economic status with moral status.
However, rejecting the egalitarian society and the politics of envy is not enough. In recent days, we have begun to see signs of a new elitism which begins from opposite premises but poses an equal danger. It is based on the theory of intractable, inherited intelligence, a theory which is not inherently objectionable in itself but which is subject to a great deal of abuse. The literature that explores this theory recommends government subsidies for people with high IQs, special grants for people studying the IQ debate, and scholarships for people who score high on IQ tests. It also calls for the government to distribute various forms of birth control to those who have low IQs. If I may say so, all of this is nonsense and very disturbing.
What both side of the debate -- the Egalitarians and the Cognitive Elitists -- overlook is the possibility for people to cooperate to their mutual advantage through the division of labor in a free society. A genius who is a master of a thousand skills is no more or less valuable to the social order than a lowly person with one small skill. The scarcity of this world imposes constraints on everyone. The CEO of IBM may also be the best cook in the world, but because of this world's constraints, he must pay someone else to do his cooking for him.
A great violinist may also be a great brain surgeon, but scarcity and the need for personal fulfillment requires that this person must choose between the tasks and leave the unchosen to another. The secret to social harmony is to establish a free system of exchange that allows every person to develop to his or her full potential, using individual talents. This division of labor creates an intricate web of labor that no government or cabal of geniuses can improve upon.
(VI) "Recrimination Gone From Our Minds"
Let's make it a challenge over the next few years to rethink civil rights and re-root them in a deeper notion of human rights and human dignity. Let's learn from the past, but keep our minds primarily focused on the future, with the urge for recrimination gone from our minds. And let's begin by agreeing on the proposition that civil rights should promote the common good, economic participation, and create cooperation, not conflict between people. As I stated at the outset, I am prepared to support any conception of civil rights that meets these criteria. As for those that do not, it is time that we shift the burden of proof.
There are those who say the deep cultural and social wounds inflicted
under the name of civil rights cannot be healed, that we are doomed to cultural
balkanization and group-driven politicization. I don't believe it. I do think this can
change, and in fact is changing. But when the process is completed, we will look back and
see that the facilitating factor was not ballot initiatives, court cases, and legislation,
but something more fundamental: a humbleness before God, the rediscovery of prayer, a
willingness to forgive, the desire for personal improvement, and, finally, a recognition
that social conflict can only be resolved on the basis of personal and not political
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