Gone virtually unnoticed in the debate on Clinton’s future is the original
legal basis for his troubles. This saga began as a sexual-harassment
lawsuit, a maneuver that would have gone nowhere even twenty years ago. It was the Supreme Court decision in Meritor Savings Bank v. Vinson (1986)
that established sexual harassment as a violation of the 1964 Civil Rights Act.
That law, in turn, is highly antithetical to American freedom.
Absent Paula Jones, there are solid grounds for unseating Clinton, of
course, including his unconstitutional use of federal secret police and
military power. But if perjury about sex is the only reason, there is sweet
if rough justice associated with a liberal being hanged with his own
ideological rope.
But this case has tempted conservatives to give wrongheaded speeches about the glories of sexual-harassment law. That may play well in front of
network cameras, but it contradicts every principle conservatives are supposed to believe in. This is “law” made up by liberal judges, extrapolating from a legal foundation that wars against the freedoms of contract and
association.
As every businessman knows, there is no way to fully protect yourself
against a sexual-harassment lawsuit. You can install cameras in every
cubical, monitor every email, and place civil-rights commissars in every
division. But one wrong comment from a clerk can lead to a whopper
judgment. It’s no protection to fire any actual or potential cad. Anyway, he might sue on grounds of mental disability (discrimination against the crazy also being against the law).
Some commentators have noted the absurdity of deriving this legal regime
from the 1964 Civil Rights Act, which only forbids discrimination on
grounds of race, sex, and the rest of the familiar litany. It’s clear that the
framers of this act intended to forbid what they regarded as invidious
treatment of blacks. Sex was added to the legislation by conservatives as
an act of sabotage, since such a notion was self-evidently impracticable. It
passed anyway.
Ever since then, the government has expanded its definition of
“discrimination.” Employers are always vulnerable because firing an
incompetent on any grounds is de facto discrimination, and therefore
actionable. Owners of rental units or bank loan officers turn down any
applicant at their peril. If a member of a favored victim group wants to
claim discrimination, he can collect a huge settlement.
However, the crucial point about the 1964 Civil Rights Act does not
concern the intentions of its framers. It goes to the heart of freedom itself. The Act makes government dictator over all contracts and associations. Instead of being free to make decisions on any grounds whatsoever, Americans are compelled to make choices that bureaucrats deem moral.
Affirmative action and quotas are a direct result of this attack on
freedom. Bureaucrats assume, even without evidence, that any market outcome contrary to their bizarre fantasies of “equality” (a term more suited to arithmetic than human relations) is a result of discriminatory treatment.
Imposing non-discrimination, ergo, means reserving certain jobs for members of groups said to be victimized.
The legal discrimination in quotas may contradict the letter of the 1964
Civil Rights Act, but not its spirit. Martin Luther King, Jr., himself
called for racial quotas. But the ensuing years have shown that such
artificial racial uplift succeeds only in imposing hundreds of billions in
extra costs on the business sector and society in general.
The Civil Rights Act brought about a massive shift in power from
individuals to the central government, both immediately, and in every year
since. The result is not more peaceful relations between groups (blacks and
whites, men and women, “abled” and disabled, etc.), but far more
antagonism.
In a free society, there are easy remedies for authentic sexual
harassment. The harasser can be fired. The person who is harassed can quit. A genuinely hostile work environment is bad for business, and competition is fierce. The freedom to hire, fire, work, and quit keeps harassment it to a
minimum.(Only in government institutions like Army training camps, where the market can be ignored, can it thrive.)
But this does not placate radical feminists and the like, because they
want not workplace peace, but a radical reconstruction of people’s brains, and an oppressive regulatory apparatus to prevent any dissent from their
totalitarian ambitions.
The civil-rights revolution that bred sexual-harassment mania continues to
threaten the very basis of American liberty: our property rights, our right
to privacy, and our freedom to choose. After Clinton is tossed out of the
White House, the Congress could do something really great for freedom, and
repeal the 1964 Civil Rights Act.
