Beneath the Title IX Controversy

In a recent article in Forbes.com entitled “The Twisted Logic of Gender Equity”, Richard A. Epstein blasted Federal Title IX regulations relating to college athletics. These controversial regulations effectively require colleges to maintain gender percentages in their athletics programs roughly equal to the overall student body, regardless of the relative interest levels of men vs. women.

Epstein focuses on the case of Quinnipiac College. Quinnipiac, for the purposes of conforming to the mandated quota levels, categorized competitive cheerleading as a sport. Since women dominate cheerleading, the addition of that activity to the sports program raised the numerical female numbers. Why bother engaging in this absurdity? Because, otherwise, the college would be required under Title IX regulations to eliminate men’s sports in order to reduce the male numbers until the percentage quotas are reached.

A lawsuit followed Quinnipiac’s action, and a Federal judge threw out the cheerleader designation, seeing “discrimination”.

Epstein describes how Quinnipiac jumped through hoops to facilitate women’s sports, despite the fact that the interest just isn’t there on a level approaching that of men. Not enough participants are available and not enough paying spectators. Women’s sports are thus heavily subsidized, an unfair burden to impose on colleges. There is no “sex discrimination”, just the workings of the market, the demands of which Quinnipiac and other colleges are forbidden to seriously consider.

Epstein makes a good concrete case against Title IX Athletics regulations. But, so have many others over the years, to little avail. Why? He fails to challenge the basic assumptions and premises that drive them.

For example, Epstein laments that "the Office of Civil Rights has issued an aggressive administrative interpretation of Title IX that could care less about equal opportunity in all sports", but doesn't challenge the ideology behind it – egalitarianism. Egalitarianism is the rejection of all human values ... values as such. Egalitarianism views individuals as interchangeable components in a human ant colony, rather than metaphysically autonomous, reasoning beings possessing independent attributes. Egalitarianism is evil because it in contrary to the nature of man. Intellectual and physical ability, personal self-motivation, goal-directed self-determination, free will and personal preference, and other individual virtues and values mean nothing. Their purpose is not some misguided lofty goal. Their purpose is nihilism and the rejection of the laws of nature and justice. Viewed from the motives behind egalitarianism, Gender Equity is not "twisted logic", but makes perfect sense.

Epstein has no problem with Title IX itself, calling it a “great engine of sex equality”. But equality properly understood does not mean group equality, but individual equality. It does not mean equal entitlements to services such as college athletics provided by the school, but the political freedom to act in accordance with one’s own judgement. Each person, regardless of personal characteristics that fit a certain grouping, possesses certain unalienable individual rights to freedom of action. Those rights are held equally, by all people, at all times, and protected equally and at all times, by a government limited by a body of objective laws. Rights are limited only by the requirement to respect the same rights of others. A person's sex, race, national origin, belief system, etc. doesn't change that. It's either collectivized rights or individual rights. Epstein chooses the former, the driving force behind Title IX. By implication, this means the rejection of the political equality of individuals, the fundamental moral premise that sets America apart from all other nations throughout history.

Epstein comments that "Title IX looks relatively benign". Specifically, Title IX reads:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any educational program or activity receiving federal financial assistance.

This is anything but benign. To begin with, government funding of any private activity is based on coercion. It represents the initiation of physical force against private citizens via taxation: the very citizens whose rights - including property rights - governments are established to protect. But we're not just talking about what amounts to the legal organized crime of wealth redistribution. There is a much more sinister and dangerous element to this. By forcing private citizens to fund "federal financial assistance" to higher educational institutions, the government is forcing them to promote ideas that they may not agree with. For example, my tax dollars are being used to impose egalitarian policies. I consider egalitarianism (in its modern meaning) to be not just non-sensical but in fact evil. Yet, I am forced to financially support it.

The government is, in effect, empowering a handful of government bureaucrats and special interests to determine which ideas the people should abide by. The entrance of government into the field of ideas as a determinant of their validity or non-validity is a hallmark of a dictatorship, not of a free country or of the United States of America. “Federal financial assistance” is the wedge of statism into higher education. As evidence, I point to the above "benign" Title IX.

Government funding in any field is, in fact, a tool of coercion and enslavement. It is the means by which officially sanctioned ideas are introduced into American society, in direct contradiction to the spirit of the US Constitution’s First Amendment “Establishment” clause. For a wider discussion of why this is so, see Amit Ghate’s PJM article, Ideas and the State.

Another false premise Epstein accepts to justify government-imposed anti-discrimination rules is the necessity "to limit monopoly power". Monopoly power, properly understood, is the ability to coercively – i.e., legally – exclude competition and protect privileged economic position. That power can only emanate from the government, whether directly or through quasi-private corporations, which alone holds a legal monopoly on the use of physical force. It is the only domestic threat to a free society, which is why a constitution is needed to protect the people from the abuse of that power. Yet Epstein, the Libertarian, has no problem granting to government the power to impose restrictions and regulations on the people’s freedom to associate. Epstein approves of the expansion of government’s monopoly power of legalized physical force beyond its proper function – the protection of individual rights – in order “to limit monopoly power”!

Epstein fails to challenge Egalitarianism and Federal funding of education, and the resultant violations of the principles of individual rights and the legitimate role of government. Though he tears apart the regulations, convincingly demonstrating their unjust absurdity and impracticality, Epstein’s failure to address the underlying issues involved is the fatal flaw in his argument. The issue is not the proper implementation of anti-discrimination laws. It’s the anti-discrimination laws themselves. There is simply no way to measure “discrimination” except by numerical analysis. That means quotas. The only question then is, whose quotas (and ideas) will hold sway? Did Tiltle IX eliminate sex discrimination? No, it institutionalized it.

Government-enforced anti-discrimination laws and regulations are unjust because they place the state in the position of interfering in the rights of private individuals to act upon their own judgement. Yes, some will act irrationally. But private citizens are not a threat to anyone’s freedom, because they can not impose their views on others. Government officials can, because government is by nature an instrument of legalized physical force. As Epstein has shown in the case of Quinnipiac, there was no sex discrimination, just a college attempting to walk an impossible tightrope in order to meet the demands of the market while attempting to satisfy the irrational dictates of the government’s “civil rights” enforcers. Yet it is government, in the name of fighting discrimination, that is imposing state-sponsored discrimination against private individuals whose legitimate actions and ideas the officials don’t approve of. Government sanctions against private discrimination is itself discriminatory, because it singles out a particular group of people who are forbidden to act upon their unalienable right of free association.

Opponents of Title IX regulations are unilaterally disarmed morally and philosophically against the statists/egalitarians, by their own choice. Yet, the battle is moral/philosophical, and can only be fought on those grounds. To defeat these absurd intrusions into the lives of private citizens, only a strong and uncompromising defense of individual rights – everyone’s individual rights - will do.

Epstein ends with an objection to "unprecedented and unwarranted federal interference in the internal operations of colleges", a warning of an impending "totalitarian peace", and a call for "a renewed commitment to principles of freedom of association" (one of the basic individual rights). To achieve that last, all federal funding or "financial assistance" of higher education must stop, the doctrine of egalitarianism must be exposed as the evil that it is, and individual rights and political/legal equality must be upheld. It's all about ideas and philosophy. There must be no compromises in that area.

Instead, whether implicitly or explicitly, Epstein accepts all of the premises behind the policies he calls illogical. That is a patently ineffectual way to fight against the madness of Title IX, and it won't work. Unilateral philosophical disarmament never has.

ObamaCare: The End of the Beginning

The passage into law of ObamaCare marked not the end of the national debate over government-run vs. free market healthcare, but only the end of the beginning. The real debate begins with its phased-in enactment.

Over time, as ObamaCare's provisions begin to take hold, its supporters will attempt to build support for it by pointing to the alleged benefits the new law will bring. (Supporters must build support after the fact, because it was passed amidst an avalanche of public antipathy.) To build support, and thus reduce the chance for major revisions or outright repeal, supporters must resort to utterly dishonest tactics.

Freedom's advocates should not follow in the well-worn footsteps of American conservatism by simply accepting the ObamaCare federal takeover of medicine, and then moving on to the next fight against advancing socialism. Instead, we should recognize that equivocation and compromise won't do any longer. We are getting too close the national precipice, beyond which lies the historic downward acceleration into civil strife and totalitarian socialism (if we have not already reached that tipping point).

In his TOS article, How to Protect Yourself Against ObamaCare, Paul Hsieh makes these crucial points:

Many Americans assume that once a government program has been created, it can never be repealed. But this assumption is false. Laws of Congress are not laws of nature; any law passed by Congress can also be repealed by Congress.

Advocates of freedom and quality health care must not allow ObamaCare supporters to spin the truth or avoid responsibility for problems they created.

With these two points in mind, let’s dissect a recent NJ Star-Ledger editorial entitled, Obamacare delivers for New Jersey. It is loaded with evasiveness and dishonesty. Let’s start with this:

[Governor Chris Christie] welcomed the $141 million [from the federal government] that is a first installment of the many benefits [ObamaCare] will bring to the state.

This money, though a small piece of the puzzle, will help 21,000 people who have pre-existing health problems like cancer or diabetes and cannot afford insurance. Unlike most states, New Jersey already requires insurers to sell to these customers. But the price can be prohibitive.

ObamaCare Delivers the Loot. That’s what the title should read. Where did the $141 million come from, and by what means? No answer. In typical fashion, politicians are lauded for practicing charity with other peoples’ tax money – money taken by force of legalized theft.

Who are the recipients of the loot? 21,000 people with "pre-existing conditions" - medical ailments contracted prior to the purchase of a health insurance policy. Why must they pay “prohibitive” insurance premiums? As the editorial acknowledges, NJ “requires insurers to sell to these customers”. What is not stated is that most of the 21,000 people would be insurable at competitive rates if insurers were free to exclude pre-existing conditions or offer other arrangements (ex. - Include a rider delaying coverage until the policy had been in force for a specified period of time. The person would, in the mean time, have full coverage for everything else.) But, thanks to this mandate, the customer can not buy coverage for any healthcare, because of a single ailment, unless they pay the sky-high premiums. $141 million of other people’s money is being sent to NJ to fix a problem caused by government. (For more on this, see Armstrong, Restore free market to address preexisting conditions.)

Why shouldn’t insurers be required to cover “pre-existing health problems like cancer or diabetes”? A health insurance policy is a voluntary, mutually advantageous contractual agreement, just like any other type of economic agreement like buying life insurance, a car, or a pack of gum. You are buying something – in this case, protection against potential medical costs. If one doesn’t have insurance coverage in place against cancer or diabetes, he must pay out of pocket. To legally force an insurance company to pay for treatment for someone who purchases insurance after the fact is legal plunder, plain and simple. The fact is, some people are just plain irresponsible, choosing to go without insurance protection. For these, it’s just another bailout.

But, as we shall see, there’s more to this issue – innocent victims of government interference into the health insurance market.

As mentioned above, many can’t afford the stratospheric premiums brought about by Trenton’s meddling, mandate crazed, special interest-driven politicians. Thanks to government, the cost of health insurance is prohibitive even for healthy people. Still others are innocent victims of the federally imposed third-party-payer system, under which the loss of a job means loss of health insurance because, unlike all other forms of insurance like auto, home, or umbrella liability policies, the employer owns the policy. When people own there own policies, there is no “pre-existing conditions” crisis. No one would expect to supply you with a new car, if you didn’t carry collision insurance.

So, ObamaCare tax loot comes to the rescue. We must subsidize these policies, or else 21,000 people will go to emergency rooms and ultimately stick tax payers with the bill – a perverse situation which government itself created through the Emergency Medical Treatment & Labor Act (EMTALA).

Everywhere one looks, one sees government-caused problems. The solution – according to politicians posing as champions of their own victims - more government intervention. All of the horrifying implications of totalitarian ObamaCare are brushed off by the Editors as a “flood of disinformation”. But they’re real. Sarah Palin, whom I am no fan of and would never vote for, was right about death panels. When government “delivers health coverage”, it will deny access to treatment for anyone who doesn’t fit some bureaucrat’s statistical model of “comparative effectiveness”. But Palin was anticipated decades ago. The original government death panel, the FDA, routinely blocks doctors from prescribing, and the sick from voluntarily receiving, promising new experimental medicines. Hundreds of thousands of the sick suffer and die needlessly as they wait for FDA approvals.

And then the Star-Ledger has the nerve to rail against the lawsuits to overturn ObamaCare, because “the status quo is both wasteful and inhumane” – a status quo of our wasteful and inhumane government’s own making:

Gov. Chris Christie needs to give up the crazy idea that New Jersey might join the lawsuit seeking to block President Obama’s health care reform.

But if he joins the lawsuits, we are eager to hear his alternative solutions. How would he deliver health coverage to the bulk of the 1.3 million New Jerseyans without it? And how would he contain costs?

So far, 21 states have joined lawsuits against the Obama reform. If Christie joins them, he better have a Plan B. Because the status quo is both wasteful and inhumane.

There is nothing inconsistent about Governor Christie accepting the federal ObamaCare money while also joining in on the multi-state lawsuit to stop it (if he so chooses and which he should do). New Jersey taxpayers are being forced to pay for ObamaCare, and so Governor Christie has an obligation to retrieve whatever of those tax dollars he can for the state.

But the bigger picture – in fact, the elephant in the room that ObamaCare champions refuse to see – is that all of the problems burdening our American healthcare can be traced to governmental causes. Skyrocketing costs are the typical result of socialistic central planning and governments that undertake to guarantee economic benefits. The natural incentives of the free market – which means, freedom from force or compulsion from government – enables material benefits to become available and affordable to all income levels, over time. Under the increasing government interventions such as we've seen in healthcare over the decades, costs skyrocket over time. History and practice bare this out in spades.

But, there is no free market in healthcare in America today, where insurance companies are regulated, competition is stifled, and government accounts for half of all healthcare spending. ObamaCare is the politicians attempt to cash in on the problems they themselves caused, by seizing more control over and squeezing more of our freedom out of the healthcare industry. These are the indisputable facts of the "wasteful and inhumane" status quo that the Star-Ledger editors and their ilk are attempting to whitewash away. The right solution is to recognize that our current problems represent a failure of statism in medicine. Then we should move in the opposite direction. ObamaCare should be overturned as a first step. The phaseout and eventual repeal of the government regulations like the FDA and state-imposed insurance mandates, and social programs like Medicare and SCHIP, should follow. Our right to our private healthcare decision-making freedom should be restored across the board.

Plan B? The Editors understand fully how the separation of church and state protects religious freedom, as it has made clear in previous editorials. We need the same freedom in healthcare. For that, we need the same kind of protective political doctrine. We need to get rid of ObamaCare, and get government out of healthcare. We need the separation of healthcare and state. That's the Plan B that the medical statists evade.

(As an aside, I would be leery of “The latest polls [that] show that Americans are warming up to this reform, with 50 percent in favor and 35 percent opposed.” Rasmussen Reports tells quite a different story. It continues to show strong majority support for repeal of ObamaCare. Of course, polls are not an argument.)

Property Rights and Title 2

This is the second in a series that began on 7/10/10 with my essay, Rand Paul, Title 2, and the Importance of Principles . The Title 2 controversy ignited by Rand Paul is, most fundamentally, about private property rights.

In a piece at the Huffington Post entitled, People and Property: What Rand Really Wants, Mark Olmsted has launched a frontal attack against property rights.

Mr. Olmsted has done a huge service here, by clarifying the issue in terms of fundamentals. Why did he attack the very principle of property rights, rather than resort to the usual tactic of equivocation? For example, defenders of Title 2 usually avoid the property rights issue altogether and focus only on the related concrete issues of racism and segregation. If property rights are mentioned at all, it is in the context of when and where limitations are “necessary”. The line goes; property rights are good, but there must be exceptions in the most "extreme" cases.

Mark Olmsted doesn't equivocate. Property rights are evil, period. As he makes clear, especially in the comments section, he quite despises Ayn Rand. (Ayn Rand gets thrown into the mix, apparently, as a consequence of the false belief that Randall Paul was named after her.) But Olmsted and philosopher Ayn Rand stand on common ground on at least one crucial point. Ayn Rand understood that:

"There can be no compromise on basic principles. There can be no compromise on moral issues.

"There can be no compromise between a property owner and a burglar; offering the burglar a single teaspoon of one’s silverware would not be a compromise, but a total surrender—the recognition of his right to one’s property."

Olmsted understands the real issue as well ... fully, completely, right down to its fundamental roots. If one accepts the validity of property rights, then it logically follows, as a matter of moral principle, that a property owner has a right to decide whom he may allow onto his property (assuming no rights violations of others by the owner). And make no mistake. Individual rights, including one's right to one's property, are moral principles.

Title 2 cannot withstand an uncompromising defense of property rights. Ultimately, property rights must be destroyed, or all such laws like Title 2 must be repealed. Mark Olmsted seeks to destroy property rights. His reasons, as we shall see, are quite clear. He understands what most on both sides of the debate do not. On moral principles, the battle is always between the two extremes. The law of excluded middle applies here. It's either/or. Either an irrational, ignorant man may engage in racial discrimination on his own property, or their are no property rights ... for anyone, at any time, anywhere.

The Olmsted argument against property rights is a familiar one. In the crucial paragraph that cuts to the chase, he writes:

“The Rand (Paul or Ayn) philosophy, by putting private property rights at the same level of human rights, equates the status of things with the status of human beings. If property is considered equal to human beings, then it's not a very big leap to considering human beings as property. I believe this country is already familiar with this philosophy, manifested 150 years ago as slavery.”

The equation of slaves with property contradicts the very source of property rights, and is a logical contradiction. The absence of property rights, in fact, leads to the slave state. I address these two points below.

The fact is, the principle of private property rights is the bulwark against tyranny of all kinds. That is why statists always try to drive a wedge between property rights and human rights. Of course, human rights do not have the same meaning to the Left as they do in the Declaration of Independence or under capitalism. When Olmsted speaks of human rights, he primarily means rights to things – i.e., property – such as healthcare, an education, or a job. Rights, properly understood, are sanctions to freedom of action to pursue healthcare, an education, or a job by one’s own efforts and in voluntary association with others. Understanding this distinction clears away the fog. When you consider that wealth – i.e., property – redistribution is at the heart of the Left’s social goals, it’s clear why property rights and human rights are considered incompatible.

For evidence of how deeply Olmsted is an enemy of property rights, here it is – the lauding of literal primitivism:

Ayn Rand considered the Indians to be a useless people (see speech at West Point, below) worth of having their land taken because they didn't "do" anything with their property. The fact that they lived in harmony with the land and nature, producing food clothing and shelter for their needs, was dismissed by Rand. She considered property materiel, exploited, transformed resources; great buildings, bridges, whatever showed off mans dominon over raw materials and produced "wealth."

The Randists use the allocation of property as proof of the owning class' superiority over everyone else. It is a souless, materialistic philosophy of empty, insecure people, who need to feel power over others.

Apparently, tribal dictatorships do not constitute “power over others”, but private wealth production that raises men’s living standards above bare subsistence, is. In classic fashion, he launches his attack on Ayn Rand (referring falsely and insultingly to Objectivists as "Randists") through the usual straw man and ad hominem tactics. As anyone who has any understanding of Ayn Rand's thought knows, Objectivism is anything but "a souless [sic], materialistic philosophy" driven by a "need to feel power over others". Individual rights, including the right to one’s earned property, is the only means of protection against predatory powerlusters. Ayn Rand is history’s greatest defender of individual rights. Draw your own conclusions about "what Olmsted really wants".

Be that as it may, his own soullessness is exposed – an utter disregard for man’s means of survival as a civilized being. Notice what he regards as important – doing nothing with raw materials, which entitles the Indians to “their property”. The real and only source of property rights is precisely “exploited, transformed resources; great buildings, bridges, whatever showed off mans dominon (sic) over raw materials and produced ‘wealth.’ ”. Productive intellectual and physical labor is the real target of Olmsted’s diatribes, the product of which he denies to the producers, so as to lay the path for its redistribution in accordance with “human rights”. In Olmsted’s worldview, the choice is, indeed, property rights or human rights.

Here is what I had to say in reply:

Thankfully, Mr. Olmsted offers with crystal clarity the fundamental alternatives: life without property rights - the literally dirt-poor, slave-oriented, fear-filled mystical existence of the American Indians living a perpetually primitive, stone-age existence - and a property-rights-respecting society of technological industrialization where the poorest live lives of luxury compared to our “noble/humble” savage ancestors.

The Indians had an innocent excuse. They had not yet discovered the knowledge of what could lead to the kind of prosperous and quality life free market capitalism makes possible: individual reason and free will, and the unalienable rights and rights-protecting government that man’s nature as a rational being requires - which makes a proper, thriving human existence possible.

Mr. Olmsted considers the mind-denying Rousseauian/Leakeyian vision superior to Ayn Rand’s Objectivist vision of man as a heroic moral being capable of great spiritually germinated material achievements. His view holds as an ideal a society of parasites with each depending on the next guy for his barest sustenance, and none permitted to thrive economically. The last thing any socialist can claim is a benevolent concern for the well-being of his fellow man.

Olmsted’s hatred of freedom and capitalism – which cannot exist without a foundation of property rights - “screams” from the final paragraph of the article, in which he equates a factory owner with a warlord, and his workers with slaves. The fundamental difference between freedom and tyranny, the absence or presence of physical force in human relationships, is a non-issue, apparently.

Without property rights, no actual human rights are possible. Dictatorship is by definition the denial of human, meaning individual, rights. The rise of socialist tyranny in a free society begins with the assault on property rights.

My initial comment focuses on the meaning of property rights:

The only way human beings can survive and thrive is through the use of his mind and the intelligent use of his labor. The end result of that productive process – what he has earned – is his property. His property is not his life, but it is the means by which he sustains his life. Thus, he has a fundamental, inalienable right to his property because he has an unalienable right to his own life. Deny an individual man his property, and you deny an individual man his life – and the individual man is the only societal entity that exists.

This does not mean he may treat others as property, or claim a right to other’s property. If he does, he is denying their property rights, and making them slaves. Mr. Olmsted has it exactly backwards. In fact, it is “a very big leap to considering human beings as property”. Only the respect for and protection of property rights makes all other human rights possible. They are inextricably linked.

Without property rights, you get Soviet Russia, Nazi Germany, Red China … and the plight of the victims of the pre-Civil War American South. To paraphrase Mr. Olmsted, I believe this country is already familiar with the philosophy of property rights denial, manifested in 20th century collectivism, the America of 150 years ago as slavery, and in the modern welfare state.

Olmsted personally replied, as follows:

And I'm sure Mr. Rand would have found for the north in the Civil War, choosing opposition to slavery over state's rights. Give me a break.

Nazi Germany was fascist, but there was plenty of private property. The Nazi elite grew extremely wealthy. And no one is advocated the abolition of private property--just that having it shouldn't give anyone the right to discriminate. I guess you don't think there was anything wrong with the "No Jews Allowed" signs in German storefronts in the 1930s? Freedom of association and all that.

The disproportionate amassing of private property is inherently undemocratic, but it's equal distribution is hardly unAmerican. In the 40s and 50s we had far greater economic equality than today--decades revered by the rightwing. Under Eisenhower the highest tax rate was 91 %. What a communist.

This is interesting, equating property rights with private property in relation to Nazi Germany. His statement that “…no one is advocated (sic) the abolition of private property--just that having it shouldn't give anyone the right to discriminate” is just what fascism is – property ownership in name only. To translate Olmsted’s statement; You can own your property, but you can’t use it in ways the government doesn’t approve of. Here is my response:

My concern is not with Paul or Eisenhower, but with property rights. Mr. Olmsted writes:

“Nazi Germany was fascist, but there was plenty of private property.”

Yes, but property RIGHTS were essentially abolished. Just as under communism, Nazism, and democracy, the essential nature of fascism is the subordination of the individual to the collective as represented by the state. Listen to Nazi fascism’s highest authority:

“The party is all-embracing…” said Adolf Hitler upon taking power, “Each activity and each need of the individual will thereby be regulated by the party as the representative of the general good…This is Socialism- not such trifles as the private possession of the means of production. Of what importance is that if I range men firmly within a discipline they cannot escape. Let them own land or factories as much as they please. The decisive factor is that the State, through the party, is supreme over all, regardless of whether they are owners or workers…Our Socialism goes far deeper…[the people] have entered a new relation…What are ownership and income to that? Why need we trouble to socialize banks and factories? We socialize human beings.” (From Herman Rauschning’s The Voice of Destruction, as quoted in The Ominous Parallels, by Leonard Peikoff, page 231-232.)

Fascists are sympathetic to communist aims, and only disagree on the means. Fascism is back-door socialism, and nothing else.

There were no “human rights” in Nazi Germany, or Soviet Russia, or Red China – and no property rights. You can’t have one, without the other. Here is a follow-up comment, referring to “the right to discriminate”, which Olmsted doesn’t think should be permitted:

The right of disagreement is fundamental to a free society, even if it is irrational and evil. This includes private, non-rights-violating discrimination against people for personal attributes over which they have no control. But proponents of justice have a powerful weapon – the First Amendment. Boycotts, publicity campaigns, non-violent street protests, and old-fashioned logical persuasion are the moral tools of freedom. So is economic competition – the opening and/or patronizing of businesses that don’t discriminate and thus siphon off as customers the victims and their sympathizers.

There is an inherent contradiction in the pro-Title 2 position. Culturally, the country was moving strongly against segregation and racism. MLK’s civil rights movement of the 1950s was gaining mounting popular support. Jim Crow and segregation – both legal and private - were being routed by popular pressure and the courts, perhaps not as fast as desired, but routed none-the-less. Racism would have disappeared as a potent societal force without the freedom-endangering, state-empowering Title 2 poison pill precedent that violated everyone's property rights. That the 1964 Civil Rights Act passed with overwhelming bipartisan congressional– which necessarily means popular – support (Republican – 80%, Democrat 64%) is my proof of that.

Remember Voltaire’s wisdom: "I do not agree with what you say, but I'll defend to the death your right to say it." To preserve freedom, including your own, you must occasionally defend the rights of the most irrational, on principle, as abhorrent as that may be.

As a final point to be made, I want to focus on this statement by Olmsted:

"The disproportionate amassing of private property is inherently undemocratic, but it's equal distribution is hardly unAmerican."

This ties together everything he says: Disproportionate - on what standard? In a capitalist, free market system, the property one "amasses" is proportionate to one's intellectual and physical productive efforts, and the voluntary choices of others to trade with you. This is certainly "undemocratic" in a just society, since one's earned property is protected by constitutional law from any looting ballot box mob that decides to seek a more "equal distribution" of your wealth.

But then, that is Olmsted's whole point. His equation of the factory owner with the warlord; of slavery as the consequence of the "philosophy" of property rights; His assertions that "The idea that wealth is justifably accorded on the basis of hard work and worth in this country is laughable" and that "The free market is just a system--it has no morality", etc: All of this and more fits together nicely as a justification for the collectivist slave system he craves. If there are no property rights, then no one's property is rightfully his, unless one received it as stolen property.

You can see where the Title 2 precedent ultimately leads. Mark Olmsted bridges the precedent to the logical consequences. What starts out as "limited" restrictions on private property ownership offering public accommadations ends up as socialist enslavement to the redistributionist thugs unleashed by the Olmsted's of the world. The epistemological trail is laid out throughout his column and comments. As I said earlier:

"It's either/or. Either an irrational, ignorant man may engage in racial discrimination on his own property, or their are no property rights ... for anyone, at any time, anywhere."

Save the Filibuster

American politics is stupid, according to E.J. Dionne in his latest piece, In American politics, stupidity is the name of the game. “[I]t's so hard to get anything done in Washington”, he laments. The government’s power just can’t grow, and Americans’ freedoms just can’t shrink, fast enough for the Left. Why? It’s that “embarrassment to our democratic claims”, that stupid antiquated Senate.

Most of this particular piece is standard liberal boilerplate. Coming from E. J. Dionne, that is no surprise. But, embedded within his anti-rich rhetoric is another dangerous attack on the restraint of governmental power built into our nation by the Founders. Here are the essential statements:

Then there's the structure of our government. Does any other democracy have a powerful legislative branch as undemocratic as the U.S. Senate?

When our republic was created, the population ratio between the largest and smallest state was 13 to 1. Now, it's 68 to 1. Because of the abuse of the filibuster, 41 senators representing less than 11 percent of the nation's population can, in principle, block action supported by 59 senators representing more than 89 percent of our population. And you wonder why it's so hard to get anything done in Washington?

From a democratic (small “d”) perspective, Dionne is right. Democracy is unlimited majority rule. Any restraint on the legislature to “get anything done in Washington” is contrary to democratic principles.

But from a republican (small “r”) perspective, restraining “our power” - the power of the electoral majority – is exactly the point. The Founders’ intent was precisely to make the U.S. Senate “undemocratic”.

Removing all restrictions on the power of the electoral majority is fundamentally un-American. Originally, America was based upon the principles of a constitutionally limited republic. Individual rights was the limiting factor. A corollary to that was to limit the power of government. According smaller states disproportionately more Senate power was a means of restricting the concentration of power in any one political center. It’s called the “balance of power” or “checks and balances” and is crucial to the maintenance of a free society. The Electoral College is another bulwark between Washington and the popular majority. The senatorial safeguard was already watered down by the 17th Amendment, which stripped elected state legislatures of the power to appoint the senators by mandating that they be chosen by popular vote. (The House of Representatives was always chosen by direct popular vote.)

The political principles that served as America’s foundation are a very recent historical achievement. For the first time in history, men were set free of the rule of force and exploitation by other men, including by government officials. This enormous progress in human social organization is more than being repealed: It is being annihilated as if it never existed. Under the banner of progressivism, the enormous progress achieved during the 18th and 19th centuries is systematically being rolled back, right out in the open and in plain sight, but hidden behind the murky blur of a dangerous word. The regressive tool of the reactionaries is the pinning of the democracy label on America, a word that is rarely defined accurately. Politicians rolling unfettered over the people, seizing wealth, usurping individual freedoms, buying off special interest constituents with the loot - unconstrained by any moral principles - is what democracy amounts to.

Dionne wants to continue the piecemeal pattern of the past century or so of removing all restrictions on the power of any ballot box mob of the moment to crush the minority. This must be done in the name of moving America towards becoming a “serious democracy”. In the above quote, he attacks the two-senator-per-state arrangement, but doesn’t dare call for its elimination … yet. He merely sends up a trial balloon, for now.

For now, he’s content to settle for a smaller fish. The filibuster – “the abuse” that allows 41 senators to “block action supported by 59 senators” – must go. The elimination of the filibuster would be relatively innocuous if the principles of individual rights and a government constitutionally limited to protecting them were firmly in place. They are not. Those principles are largely forgotten or ignored as antiquated relics of an obsolete past. The remnants of our freedom are today held together only by the remnants of the original structural political safeguards such as the senatorial setup that Dionne attacks. The filibuster rule is another.

According to Senate rules, any Senator (or group of Senators) could speak on the floor without any time limitation. This is called “holding the Senate floor”. In practice, this allowed a minority to indefinitely hold up action on a bill that they didn’t like, often killing it. This minority tactic became known as the filibuster. About one hundred years ago, the Senate moved to limit the filibuster. The result was the “cloture” rule, under which a super majority of the Senate – today it is 60 votes – could end the filibuster and force a vote.

The super majority cloture rule has survived through both Democrat and Republican political dominance, most likely because each party feared that changing it to, say, a simple 51 vote majority would back-fire when it was out of power. Today, some on the Left such as E.J. Dionne want to do away with the super majority rule, in order to “get things done”, presumably meaning more statist “things”.

Considering today’s strong GOP tide heading into the fall elections, it might seem advantageous for the Right to support this change. But considering the philosophical disarray of today’s Republican Party, coupled with the strong overarching statist/socialist trend, any short-term gain the Right might achieve by the elimination (or watering down) of the filibuster rule will likely be washed away longer term. The philosophical education and base-building needed to take advantage of an easing of the cloture vote in order to truly roll back the welfare state is a long way from complete. Today’s GOP simply can not be trusted to get the right things done before the Left regains power (assuming they lose it this fall in the first place).

Save the filibuster rule. It’s at least a speed bump slowing the statist express.