Although racial discrimination is a terrible problem, the legislation trying to make discrimination illegal is not a law because it defines illegality in terms of motivations rather than actions.
Laws apply only to actions and to the circumstances in which those actions are taken.
An illegal motivation is just as impossible as an illegal idea or belief (about which see the First Amendment).
And motives, unlike actions, cannot be observed but must be inferred.
Empowering a judge or administrator to make such inferences can easily enable arbitrary treatment, the last thing the rule of law seeks to authorize.
Antidiscrimination "laws" should therefore be considered unconstitutional.
Until now, racial reformers have brushed off my analysis. Their goal’s obvious nobility made them unwilling to consider any criticism of this means of pursuing that goal.
These reformers may be more willing to consider this argument now that the Trump administration is prosecuting organizations for violating the Civil Rights Act of 1964 by discriminating against white people in their affirmative action programs.
They have been strong supporters of affirmative action, so it must be really maddening to have civil rights legislation used to attack it.
In 2023 the Supreme Court dealt an apparent death blow to university affirmative action programs in the states that had not already outlawed them. See Students For Fair Admissions v. Harvard, 600 U.S. 181 (2023).
And as The New York Times reported on Feb. 7, the Equal Employment Opportunity Commission has "been investigating Nike's effort to increase racial diversity in its employee and leadership ranks" which "may have violated civil rights laws by discriminating against white people."
The government is finally taking the Civil Rights Act literally, as it should, applying it to racial discrimination against anybody — sauce for the goose, sauce for the gander.
The trouble is that even when no longer being enforced selectively, the Civil Rights Act is fundamentally illegitimate because it is not a genuine law.
It purports to make discrimination illegal, but genuine laws must be general rules of action. Discrimination can be a reason or motive for acting, but discrimination is not itself an action.
Antidiscrimination "laws" do not make it illegal to refrain from hiring any person.
They only make it illegal to refrain from hiring someone if our motive or reason was considered a bad one.
If I don't hire John Jones because of his race, my action violates the "law," but if my reason is that I think he can't do the job well, it's perfectly legal.
My actions here are exactly the same, the only difference lies in my motive.
But how can the very same action be both legal and illegal?
Although antidiscrimination legislation is not genuine law, genuine laws whose purpose is to reduce racial discrimination are both possible and legitimate. An example would be a legal rule requiring places of public accommodation to accept customers first come, first served.
Restaurants, hotels, and other public services that violate such a rule would be doing so visibly and the motive — good or bad — of the proprietor would be completely irrelevant for securing a conviction.
But a proprietor who discriminates racially would be punished.
The portions of the Civil Rights Act of 1964 dealing with public accommodations could easily be rewritten as first come, first served rules that are genuine law.
But first come, first served would obviously be inappropriate for selective universities or for nearly all jobs. If an airline hired only the first person to apply for the job of pilot, no one would want to fly on it.
We all want our hospitals to select doctors carefully on their individual merits, not just because they applied first.
We would feel likewise about the carpenters, plumbers, and electricians who build the houses we live in. As we learned during the pandemic, there are no unimportant jobs in our complex society.
Racism remains a serious problem, but empowering government officials to punish the alleged motives for actions that are otherwise completely legal is a step too far.
Paul F. deLespinasse is Professor Emeritus of Political Science and Computer Science at Adrian College. Read more Prof. Paul F. deLespinasse Insider articles — Click Here Now.
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