In today's article in the NY Times on the Rand Paul, civil rights
controversy, the reporters said this:
Mr. Paul said in
an interview with Rachel
Maddow on MSNBC on Wednesday night that he supported the sections
of the Civil Rights Act that applied to public accommodations but had
concerns when it came to its applicability to private business; he
raised similar concerns earlier in the day about the Americans with
Disabilities Act in an interview on National
Public Radio.
It's hard to know whether the
ignorance evinced by the distinction drawn in the paragraph is Paul's
alone or whether the NY Times reporters also think there is some
difference between "the sections of the Civil Rights Act that applied to
public accommodations" and the sections that apply to "private
business." I hope it's the former, but even if it is, they should have
used the opportunity to explain what is probably not obvious to most
people: the public accommodations provisions of the law are the very
same as the sections aimed at privately owned businesses. This is
because -- in Title II of the Civil Rights Act -- the question whether
an accommodation is public has nothing to do with who owns it. Rather,
it has to do with whether it is the sort of facility that opens its
doors to all comers who are willing to (1) behave themselves and (2) pay
the price charged for the services rendered.
Here is how the
law defines "public accommodation":
(1) any inn,
hotel, motel, or other establishment which provides lodging to transient
guests, other than an establishment located within a building which
contains not more than five rooms for rent or hire and which is actually
occupied by the proprietor of such establishment as his residence;
(2)
any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or
other facility principally engaged in selling food for consumption on
the premises, including, but not limited to, any such facility located
on the premises of any retail establishment; or any gasoline station;
(3)
any motion picture house, theater, concert hall, sports arena, stadium
or other place of exhibition or entertainment; and
(4) any
establishment (A)(i) which is physically located within the premises of
any establishment otherwise covered by this subsection, or (ii) within
the premises of which is physically located any such covered
establishment, and (B) which holds itself out as serving patrons of such
covered establishment.
Virtually all of these
establishments are privately owned under most circumstances, although
some of them (e.g., stadiums and concert halls) are frequently publicly
owned. So anyone who is familiar with this statute -- and, in fact,
with the history of the debate over Title II -- knows that if you
eliminate its applicability to privately owned businesses, you eliminate
the bulk of Title II.
The logic behind applying Title II to
privately owned places of public accommodation is that a business owner
who opens his private property to operate this sort of business has a
very limited interest in picking and choosing among the people he will
serve. The relationship that is established by serving a customer under
these circumstances is highly attenuated and, as a consequence, being
forced to serve all comers (a doctrine with deep roots in the common law
of property in its treatment of so-called "common carriers") is barely
an infringement of the liberty interests of owners. If you don't want
to interact with black people even in the shallow context of casual
commercial interactions, don't open a restaurant or soda fountain.
Instead, open a private club, which the law exempts from its reach.
On
the other hand, the infringement on the liberty of those excluded is
substantial. What makes libertarians like Paul and his defenders seem
so obtuse -- and the reason you will not find many black libertarians --
is that they categorically elevate even the very attenuated liberty
interest a property owner has in being able to pick and choose customers
on the basis of race such that it trumps everything else, including,
the dignity of black citizens in being able to engage in commercial
activity without the risk of humiliation or violence.
If you look in the comments of the thread of my dotCommonweal
post, you'll
see this logic at work in the arguments raised by one libertarian
commenter, who said that the harm suffered by a black person excluded
from a soda fountain is of a different nature from the harm imposed when
the state coerces, presumably (for example) by mandating
non-discrimination in privately owned places of public accommodation.
Set aside the fact that the enforcement of owners' "rights" to exclude
on the basis of race is built on a foundation of coercion (just look at the
video I linked to in the last post, which showed peaceful sit-in
protesters being beaten by private citizens before being arrested for
criminal trespass). Set aside the networks of private coercion that
prevented non-racist business owners in the pre-civil-rights South from
opening their doors to black customers for fear of reprisals or lost
business. It is only a categorical decision at the outset to privilege
rights that bear the label of "property" above other types of interests
that allows a person to conclude that denial of interests in access is
less significant than the rights of business owners to discriminate
among their customers on the basis of race. My guess is that such a
prioritization of abstract rights of private ownership over rights of
nondiscriminatory access is greatly facilitated by never having
experienced the sting of racial exclusion.
Does
the prevalence of sarcasm mark our age as distinctive? Skye Jethani so argues here.
If sarcasm is on the increase, is it a good thing or a bad thing? And why is it
on the increase? According to Jethani,"Phil
Vischer, the creator of VeggieTales, gave a speech at Yale
in 2005 in which he unpacked the media values of our generation -- the slow
descent from our parents' ‘dry, cocktail party wit of Johnny Carson’ to the ‘sarcasm
and twisted humor’ of David Letterman, and the emergence of the bottom-feeder
humor that is Beavis and Butt-head and South Park. In these
shows, Vischer says, ‘we had found our voice. We were safe from the world, as
long as everything was treated as a joke.’He continues: Some folks believe
Vietnam was the source of America's modern cynicism. Others point to Watergate.
But for me and for many others in my generation, the real root, I think, is
much closer to home and much more personal. When we were very young, our
parents broke their promises. Their promises to each other, and their promises
to us. And millions of American kids in a very short period of time learned
that the world isn't a safe place; that there isn't anyone who won't let you
down; that their hearts were much too fragile to leave exposed. And sarcasm, as
CS Lewis put it, ‘builds up around a man the finest armor-plating ... that I know.’”
Sarcasm
seems
to me to be a mixed bag. It is an effective rhetorical tool in
criticizing customs, habits, institutions, and authorities. It is
funny. Jon Stewart and
Stephen Colbert are justifiably successful. But it does create an
emotional
distance – a dehumanizing “armor-plating.” As Jethani argues, it
distances us from our anger and our fear. As I read him, he believes we
cannot break through to love without directly confronting our anger and our fear. And, surely, sarcasm in private conversation throws up interpersonal barriers rather than opening the way to strengthening interpersonal ties.
cross-posted at religiousleftlaw.com
That's Richard Doerflinger's judgment on the teachings of Dartmouth bioethicist Ronald Green:
Doerflinger argues that Green's proposed "Copernican revolution" in ethics, to justify embryo-destructive research and abortion, "endangers a far broader class of humans, by elevating to a moral principle the tendency of powerful and articulate people in society to regard vulnerable others as undeserving of equal regard. Its logical implication is that there are no such things as unalienable human rights, only socially constructed privileges granted to those who enjoy personal qualities and social roles deemed valuable by the majority at a given time."
Read the whole thing: http://muse.jhu.edu/journals/american_journal_of_bioethics/v002/2.1doerflinger.html
Thursday, May 20, 2010
The Church teaches that all innocent human beings have a right not to be directly killed or killed unjustly even where the killing is not direct. Put negatively, this is a teaching that all direct or otherwise unjust killing of the innocent is gravely morally wrong. (In the encyclical letter Evangelium Vitae, Pope John Paul II not only strongly reasserts this teaching, but confirms that it is infallibly proposed by the ordinary universal magisterium of the Church pursuant to the criteria set forth in Lumen Gentium 25 of the Second Vatican Council,)
The prohibited action is labeled an "abortion" (in the sense falling within the condemnation and prohibition of abortion) when the individual who is killed is in the embryonic or fetal stage of development. It is labeled "infanticide" when the individual is in the infant stage. I point this out to make clear that the condemnation and moral prohibition of abortion is a particular instance of a general condemnation and prohibition of direct killing of the innocent and all unjust homicide. In other contexts, the term "abortion" is used differently. And so we sometimes refer to miscarriages as "spontaneous abortions." Also, we sometimes say (but only at the risk of misleading people who are not familiar with the technical philosophical and theological discussions of the rights and wrongs of abortion) that "indirect abortions" that are not unjust---that is, acts that cause the death of a child in the womb where death is a foreseen and accepted but unintended side-effect of an otherwise morally permissible act---are morally permissible. (A standard case is the removal of a cancerous gravid uterus.)
In reading the post by Professor Kaveny that Michael P. called to our attention, I wasn't entirely sure whether she was reserving the term "abortion" (as condemned by the Church) for cases of direct abortion, or also meant to include (as I would) indirect abortions that are unjust. I think she did mean to include the latter, especially in light of her endorsement of Germain Grisez's theory of human action as applied to the analysis of abortion and killing generally (a theory I, too, endorse), and some other things she said. Where I disagree with Professor Kaveny (and where she disagrees with Grisez) is on what she and one of her fellow dotCommonweal bloggers refer to tendentiously (and, in my view, unfairly) as Grisez's "disclaimer." Grisez said:
"If the analysis [of abortion] proposed here should lead in practice to a judgment in conflict with the Church’s teaching, I would follow and urge others to follow the Church’s teaching. If the teaching is open to refinements in respect to its application, these must be completed by the magisterium."
I would say exactly the same thing. I understand that Professor Kaveny and others who share her views about authority in the Church disagree, and it is an argument I'm happy to have. I'm quite sure that Grisez's view is not to be accounted for, as Professor Kaveny proposes to account for it, as an expression of "nominalism." It is, of course, possible that it is wrong for other reasons, though, as I say, I myself think it's right.
In a contribution to the 40th anniversary issue of the conservative magazine National Review, I described libertarianism as a "heresy." By that, I meant that libertarianism is not simply false. It affirms a genuine truth---in this case, the value and importance of liberty or personal autonomy---but affirms it so emphatically and indeed singlemindedly that it winds up denying other equally important truths and values. Libertarianism of the Ayn Randian sort emphasizes individualism so strongly that it ends up treating human sociability and the values connected to it (e.g., friendship, marriage, community, solidarity) as purely instrumental goods, rather than intrinsic and constitutive aspects of human well-being and fulfillment. The value of human relationships and associations is reduced to their utility and efficiency in enabling the partners or members to achieve their individual goals. Inevitably, those subscribing strictly to libertarian ideology wind up talking themselves into support for bad policies, such as Rand Paul's (or the late Barry Goldwater's) opposition to civil rights laws forbidding racial discrimination in housing and employment, and the ACLU's support for the abortion license and opposition to the regulation of pornography.
[from theatlantic.com:]
The Proud Ignorance of Rand Paul
By Ta-Nehisi Coates
I saw this
over
at Gawker, and thought that Rand Paul might come off better if I saw the
whole video. I think the whole video made it worse. What's most troubling about
this interview is not that Paul opposes a portion of the Civil Rights Act of
1964, it's that it's clear Paul hasn't thought much about his position. Lacking
a rigorous intellectual framework for his opposition, Paul is wobbly on defense.
So what you see, in the main, is Paul trying to change the subject--at one
point, I think he actually asks (rhetorically), "Am I a bad person?"
But Paul never settles down and to
make the argument. Rachel Maddow
repeatedly raises lunch counters, and it would have really pleased me if Paul
had just made the case for private sector discrimination. Frankly, I can see the
outlines of the argument and am not totally unsympathetic to it. Indeed, I think
there's a beautiful justice that's visited upon the random politician who, to
this very day, is routinely exposed as belonging to a white country club.
There's a kind of social sanction in that embarrassment that I don't think the
law can bring. (That said, I trust the people who were actually there more than
my own abstract theorizing.)
But what about red-lining? Does Paul know anything about
blockbusting? Does he think
banks should be able to have a policy of not lending to black businesses? Does
he think real-estate agents should be able to discriminate? Does he think
private homeowner groups should be able to band together and keep out blacks?
Jews? Gays? Latinos?
I think there's this sense that it's OK to be ignorant about the Civil
Rights Act because it's a "black issue." I'm not a lawyer, but my sense is that
for a senator to be ignorant of the Civil Rights Act, is not simply to be
ignorant of a "black issue," but to be ignorant of one of the most important
pieces of legislation ever passed. This isn't like not knowing the days of
Kwanzaa, this is like not knowing what caused the Civil War. It's just
embarrassing--
except Paul is too ignorant to be embarassed.
I'm sure Paul's defenders will dismiss this interview as a lefty hit-job.
But Maddow gave him every opportunity to correct the record, or defend it, and
Paul answered with a series of feints and dodges. Not once did he stand up and
throw a real punch. You're left wondering how he came to his position and what,
precisely, is really at work here. I chose ignorance because it gives him as
much credit as intelligently possible. Anything more, in 2010, in the United
States Senate, is disgraceful.
[This article available online
here.]
Does anyone here disagree with what Cathy Kaveny--citing Germain Grisez, no less!--has to say over at dotCommonweal?
[UPDATE: See this post too, @ NCR Today.]
