Machan's Musings - Tyranny Taught at Yale Law School

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Submitted by removed on Mon, 2006-01-16 02:39

Machan's Musings - Tyranny Taught at Yale Law School

Tibor R. Machan

Yale Law Professor Kenji Yoshino wrote a piece for The New York Times magazine, “The Pressure to Cover” [01/15/06], that’s a frightening
diatribe in favor of a police state that. Its ideas pretty much match the
worst portions of the Right Wing’s Patriot Act—another piece of evidence
that Left and Right are mostly two sides of the same coin.

This man proposes that everyone who is dissatisfied with any condition in
his or her life has the civil right to seek relief—e.g., be accepted by
others on his or her terms. This idea is to completely abolish the right
to free association so all those whom some do not like will be forced to
be embraced by all those who do not wish to be with them.

This, of course, is the logical implication of those elements of the
civil rights legislation of the early 60s that went beyond freeing people
from official government segregation and discrimination. When those laws
began to force people to hire others whom they didn’t want to hire—for
whatever reasons, from whatever motives be those decent or vile—the dice
was cast in the direction of making people associate with each other
whether they choose to do so. And Professor Yoshino is all too eager to
take it all to its logical end: make society conform to his conception of
human harmonious co-existence. (I am surprised he isn’t actually proposing
to force people to go on dates or even marry people they aren’t attracted
to because, well, wouldn’t it be great for them if those they want would
want them, too.)

Yoshino is upset about the fact that some people have to cover their own
habits, likes, styles of attire or hair, dislikes and so forth in order to
accommodate others with whom they wish to association in various
endeavors, including various organizations (especially with employers,
schools, teams, clubs, etc.). When American Airlines was forced to hire or
keep on flight attendants whose hairstyle management considered—right or
wrongly—objectionable, undesirable, the courts paved the way for Yoshino’s
radical police state. Now he can argue, by way of the familiar approach of
the law, namely, precedent, that all those who object to others for
whatever reason should be forced to shut up about it, put up with
everything they dislike, because acceptance on terms others may well abhor
is one’s new civil right.

This, of course, is just what most of those who were condemned for
supposedly fostering discrimination, even racism and sexism, by objecting
to forced integration feared all along. Many of them had no objection to
associating with people of different races, sexual preferences, etc., and
so forth—they did, however, see the writing on the wall, the writing that
spelled “Professor Yoshino’s Hell on Earth.” It is the hell in which one’s
choices of who will be acceptable fellows, who won’t, do not matter at
all. What matters is what the likes of Professor Yoshino think constitutes
a proper—and forced—union among people.

In his piece, which is chuck full of equivocations and verbal slights of
hand, Professor Yoshino says “it is now time for us as a nation to shift
the emphasis away from equality and toward liberty in our debate about
identity politics....” But by “liberty” Yoshino means that one is entitled
to impose oneself on others—at work, in clubs, at schools, etc.—regardless
whether these others want to associate with one. Yoshino hopes that
“People confronted with demands to cover [meaning to hide or disguise the
traits to which others with whom they wish to associate object] should
feel emboldened to seek reason for that demand, even if the law does not
reach the actors making the demand or recognize the group burdened by it.”
That is to say, even if there are no laws yet forcing others to associate
with you—say, no law forces you to admit into your home people whose
grooming or race or music or whatever you disapprove of, whether
rationally or not—you should be emboldened to demand that these folks
provide justification for their exclusion of you from their midst.

Oh yeah? Why must I give anyone such justification? Well, Yoshino seems
to believe, because they have a civil right to it from you. But does he
not see that such a policy makes me their involuntary servant, one who
must report to them with my reasons even if I would rather do something
else or not tell them anything at all. In Professor Yoshino’s world we are
all to be coerced into explaining ourselves to others and, the next step,
if we refuse to do this, we will receive sanctions, at first from some
pressure groups but in time from the law itself.

Fact is, free men and women should not be subject to such coercive
impositions. If they have irrational objections to others, they must be
reached without coercion, by education, social pressure, boycotts, or
ostracism—but left alone if they refuse. The nightmare of a harmonious
world in which everyone will accept, even love everyone else, in which all
differences of tastes and preferences are erased, is a world of coerced
conformity—kind of like North Korea!

It is instructive that Yoshino’s essay in The Times is followed
by one in which new laws around the country coercing employers to pay
people a “living wage” is championed. The Times seems to be intent on
leading the way to a police state in various areas of our lives, while it
keeps complaining of President Bush’s efforts to make this happen in

We are not in good shape, sadly, and we better watch out because both
these forces are undermining our right to individual liberty, the bona
fide kind.

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