Tag Archives: Legislation

After 28 Years, What Should We Keep and What Should We NIX?

Richard Nixon signed Title IX into law on June 23, 1972. Title IX most famously applies to women’s sports, but in fact the law is much broader than that:

Title IX of the Education Amendments of 1972 prohibits discrimination based on sex in education programs and activities that receive federal financial assistance.

The U.S. Department of Education gives grants of financial assistance to schools and colleges. The Title IX regulation describes the conduct that violates Title IX. Examples of the types of discrimination that are covered under Title IX include sexual harassment, the failure to provide equal opportunity in athletics, and discrimination based on pregnancy.

On its 28th anniversary today, Title IX continues to elicit controversial opinions with regard to its extension from sports to science. Though extenders’ laudably recommend supporting women in a male-dominated field, the problem with legislative “support” is that it leads to twisted legal realities.

In school sports, Title IX has developed a controversial reputation for its creation of a de facto “quota” system. Just as true supporters of civil rights disdain quotas as racial basis for education, it makes little sense to impose equality on high school students at the expense of their choice.

Title IX supporters promote the legislation as permitting women to enter athletic fields formerly reserved exclusively for men. Dissenters argue that we should not cancel men’s sports if there is no female equivalent — if women are more interested in the arts, for example, it makes more sense to encourage participation there, rather than require young women to match the interests of their Y-chromosomed counterparts in the interest of quota metrics.

Feminism is, after all, about choice. Stated the New York Times in a 2008 article:

The members of Congress and women’s groups who have pushed for science to be “Title Nined” say there is evidence that women face discrimination in certain sciences, but the quality of that evidence is disputed. Critics say there is far better research showing that on average, women’s interest in some fields isn’t the same as men’s.

In this debate, neither side doubts that women can excel in all fields of science. In fact, their growing presence in former male bastions of science is a chief argument against the need for federal intervention.

American law is premised on protecting negative rights. This means that we are “free from” interference with our right to live as we please. If there is some outside force restricting our choice, legally we are entitled to ask for that force’s removal.

Yet if, as the NYT reports, women’s interest is lagging in pursuing scientific careers, there is no infringement. Feminism is about choice, not about forcing women into certain careers simply because there are few women already represented in those fields.

The Times goes on to quote psychologist Susan Pinker:

Now, you might think those preferences would be different if society didn’t discourage girls and women from pursuits like computer science and physics. But if you read “The Sexual Paradox,” Susan Pinker’s book about gender differences, you’ll find just the opposite problem.

Ms. Pinker, a clinical psychologist and columnist for The Globe and Mail in Canada (and sister of Steven Pinker, the Harvard psychologist), argues that the campaign for gender parity infantilizes women by assuming they don’t know what they want.

Women know what we want. Feminism is about feeling empowered to achieve whatever it is that we want. Feminism is not about imposing some mandated quota across fields, be they professional or athletic.



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Constitutional Creep

Where exactly is the rub in Arizona’s immigration law?  Arizona’s legislature responded to cries of constitutional offense by amending the law, but stopped short of repeal.  By passing a questionably-constitutional bill, Arizona commits the most insidious legislative offense: Constitutional Creep.

Constitutional Creep is what happens when legislatures find permissive loopholes in governing documents.  Legislators prey upon a combination of fear-mongering and constituent disinterest to force vague or offensive bills through the loopholes, therefore creating larger loops awaiting larger legislation later on.

Legislation means much more than mere statutory language.  Typically the way people implement a bill—which provisions officials enforce, and which they ignore—is what actually defines what a statute means in practice.

SB 1070 does not fall far outside the boundaries of laws most states already have in effect.  Arizona’s immigration law is offensive, but all liberty-infringing legislation is offensive, and nearly all legislation is liberty-infringing.

For example, the text of the bill forbids racial profiling “except to the extent permitted by the United States or Arizona Constitutions.”  Both SCOTUS and the Arizona Supreme Court have explicitly determined that “ethnic factors” are relevant considerations when it comes to immigration issues.

Indeed, it was in 1975 that the United States Supreme Court determined that the US Constitution permits race to be considered in immigration enforcement.  1975 becomes a significant date, because immigration outcry tends to parallel the national economy, and in the mid-70’s outlook seemed perhaps as grim as it does today.

Though the bill’s racial language seems shocking, nearly all legislation is designed to permit profiling.  Vagabond laws precluding individuals from walking aimlessly overlap with loitering laws that prohibit standing still, for instance, so that officers may at their discretion stop nearly any citizen in most states.  Only when officers stop disproportionately more of one race than another in response to these omni-prohibitory laws does the presumption shift away from fair officers’ evenhanded application.

Similarly, the practical effect of Arizona’s law remains to be seen.  SB 1070 calls for immigration officers to ask any stopped individual whether he is a United States citizen.  If the individual answers “no,” he must provide documentation that proves he has a right to reside in this country.

If the individual answers that he is an American citizen, immigration officials may not demand further proof of right to reside.  When was the last time you were asked to produce your birth certificate?  Constitutionally the presumption falls in favor of citizens, as it should.

Constitutional offense turns not on the notion of “fairness,” but rather on questions of natural rights and the most effective ways a minimalist government can protect citizens without interfering with our lives.

The answer to preventing offensive bills like SB 1070 from passing is the same as the best method for keeping Constitutional Creep to a minimum.  Citizens should focus on keeping legislation small, government minimal, and keeping government out of our backyards.  Because once government is in our backyards no amount of Constitution-waving will keep them from demanding papers, and proof, and generally acting like, well—constitutional creeps.

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Behavior : Legislation :: Chicken : Egg

Brilliant letter from Prof. Boudreaux to the Saturday NYT:

Reacting to Rand Paul’s remarks about the 1964 Civil Rights Act, you say that his libertarian philosophy “is a theory of liberty with roots in America’s creation, but the succeeding centuries have shown how ineffective it was in promoting a civil society….  It was only government power that … abolished Jim Crow” (“Limits of Libertarianism,” May 22).

You’ve got it backwards.  Jim Crow itself was government power.  Jim Crow was legislation that forced the segregation of blacks from whites.  Research shows that people acting in the free market that you apparently believe is prone to racial discrimination were remarkably reluctant to discriminate along racial lines.  It was this very reluctance – this capacity of free markets to make people colorblind – that obliged racists in the late 19th century to use government to achieve their loathsome goals.*

Had Mr. Paul’s libertarian philosophy been followed more consistently throughout American history, there would have been no need for one government statute (the Civil Rights Act) to upend earlier government statutes (Jim Crow) and the business practices that they facilitated.

Donald J. Boudreaux

* See especially Robert Higgs, Competition and Coercion: Blacks in the American Economy, 1865-1914 (University of Chicago Press, 1976); Jennifer Roback, “Southern Labor Law in the Jim Crow Era: Exploitative or Competitive?” University of Chicago Law Review, Vol. 51 (1984); and Jennifer Roback, “The Political Economy of Segregation: The Case of Segregated Streetcars,” Journal of Economic History, Vol. 46 (1986).


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Human Rights Trends

Are we becoming more internationalized?  In other words: Have the “human rights” — cough — of individuals supplanted sovereign interests?

1. Willingness to recognize “trend” seems dangerous.  True, we’ve moved in a direction more committed to protecting individuals’ rights with int’l agreements.  But look at American history: Our very first national document, the Decl. of Independence, serves the express purpose of explaining that after so many “abuses and usurpations” we were tired of staying under GB’s thumb.  The framers of our Constitution took our human rights into their hands and implored the rest of the world to recognize that suddenly-responsible position.

As information barriers, etc., fall of course the world at large moves towards Global Community.  What counts is less the question of worldview and much more the degree to which we the present sovereign recognize that global public opinion’s de facto public opinion jurisdiction over us.

The most interesting opposition — and, indeed, the most interesting approach to the question of individual v. sovereign in the “world court” comes from the very heart of America’s approach to governance.  In Federalist 51 James Madison argued that the “preservation of liberty” requires both separation of gov’t’l powers and a gov’t structured in layers.  This permits factions to jostle freely, public choice attaches to ambition, etc.

So, inasmuch as an appeal to the international community to recognize a fledgling nation as sovereign can be called International Law, int’l law has always been primarily concerned with individuals’ human rights.

Trend questions also take root in a comparison to American law, the law of our sovereign and the frame thru which we approach any question of int’l law.  Where thousands, millions of individuals clamor for rights recognition, the only way to protect all involved and the structure of gov’t itself is to construct a series of layered sub-sovereigns.  Enter Federalism, stage right.

Then the question becomes: Where do individual human rights and sovereign interests diverge?  There are lots of obvious examples, perhaps the most obvious of which is where jus ad bellum gives way to jus in bello.  When does it become appropriate to enter war (or commit warlike acts, i.e., to compromise the absolute human rights proscription against harming another human being), and what governs behavior once we’ve bent those absolute terms?

Human rights language then protects the interests of individuals, but the proponent of that language, the protector of those individuals, is the sovereign.  And an entirely different set of rules permits that sovereign to protect itself from threats of its undoing than permits individuals to protect their more discrete interests.

2. That said, perhaps there is a trend.  Just like American Const’l interp sometimes seems like a tug of war on Federalism principles, so too do int’l agreements carry some of that thrust and parry interpretive instinct.  In some areas sovereignty stays critical — like executive agreements, or NATO acts/funding — but in other areas it’s almost beside the point.  Convention on Rights of the Child?  Seriously?  Yes, we’ll join you, Somalia, and sit this one out.

The problem with codifying int’l customary law is the same as attempting to legislate over Torts.  Legislation freezes the pipes through which organic case law flows.  So to some degree the attempt to codify merely institutes opportunities for bad habits, stretched lexicons, etc.  It makes sense that the “world court” would want to nail this sucker down, but that becomes rather pointless when nobody acts like anything binding has happened anyway.

Anyway.  More later, just exploring a bit.

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Whatever Happened to Plan A?

Early this week the Food and Drug Administration will announce a new plan to lower the required age for obtaining the “Morning After” pill without a doctor’s prescription from 18 to 17.

Plan B is a godsend for women whose birth control unexpectedly fails.  But offering a reprieve for adult women is quite different from embarking on a slippery slope of “morning after” options to younger and younger women.  Shouldn’t we be teaching the next generation of women about the many options available to them at Plan A, like choosing a partner and using birth control, rather than teaching them that they only need face the music the Morning After?

For all of the hue and cry surrounding Plan B’s post-2006 availability, the pill’s increased availability has had no measurable effect on the nation’s teenage pregnancy or abortion rates.  While many variables contribute, those statistics demonstrate that before women had OTC access, they were not suffering from widespread pregnancies and abortions that were finally prevented with the 2006 measures.  Instead, women were somehow finding other measures to protect themselves prior to 2006, and in 2006 they switched to the morning after method.

While successful in 2006 at making Plan B available over the counter to women over age 18, supporters have long hoped to make the morning after pill available to all women, regardless of age.  “Any person who is sexually active should have access to plan B when plan A doesn’t work,” said associate professor of obstetrics and gynecology at Stanford University Medical Center Kay Daniels in a 2006 interview with the San Francisco Chronicle.  “In fact, any woman who comes to me and says she uses condoms, I say, ‘That’s great, and here’s your prescription for Plan B.  Fill it and put it in your closet.’”

Indeed, a couple trying to conceive stands only about an 82% change of becoming pregnant.  Various “Plan A” choices decrease the possibility of pregnancy to as low as 1%, if using condoms or the Pill.  Plan B merely represents the last bastion in the stand women may take to protect themselves form unwanted pregnancy, starting with refusing a second cocktail and ending, ceremoniously, the morning after.

The FDA’s announcement represents compliance with a federal drug’s order to lower the age limit by a year, the beginning of what may well be a very slippery slope.  On March 23, District Judge Edward Korman ordered that Plan B be made available over the counter to those 17 and up, and recommended that federal agents consider lifting age requirements altogether.  Judge Korman suggested that politicians had too long focused on politics rather than science in creating artificial age requirements for a drug that would not harm a 17 year old woman any more than it would a woman 18 or older.

Young women should take note that this further step towards protecting our reproductive rights does not alleviate the requirement that we consider our actions.  Yes, we may easily thwart unintended consequences.  But the fact that sales of Plan B have doubled since the pill became available over the counter in 2006 suggests that women are not stopping to consider their options at Plan A, but merely relying on the morning-after choices to protect themselves.

While “Plan A” includes such measures as condoms and prescription birth control, a more important element in women’s reproductive rights is our ability to determine when and with whom we will have sex.  Widely available morning after options merely lower the bar for decision-making at the critical moment when a woman decides whether or not she wishes to sleep with her partner.  Choice is a tremendous boon, but only if women consciously make that choice.

Making morning after choices so widely available to young teenagers changes the terms of this debate.  If parents forego birth control discussions in favor of abstinence-only talks, teens will more likely engage in unsafe practices and rely on Plan B the next day.  Plan B does not protect against sexually transmitted diseases.  Nor does Plan B protect young women in high school from the potential pitfalls of engaging before they are ready.

The fact that sales of Plan B increased so dramatically since becoming available over the counter suggests that women are relying on Plan B as their Plan A.   Rather than wait for Prince Charming—or even carry a condom!—women have begun counting on their morning after choices rather than engaging in the series of choices that are still available to us.  The fact that neither pregnancy nor abortion numbers have changed confirms that women have maintained the status quo: using only one method.  At one time that one method was waiting for Mr. Right.  Then for a long time women carried protection and used it properly.  Now, however, the statistics indicate that women prefer to forego those traditional methods.

Reproductive rights are only empowering if women choose to empower themselves.  Women should maintain a high bar for selectivity and not rely on Plan B to replace Plan A.  It is one thing for an adult to make these choices.  But shouldn’t we at least suggest to the next generation that they have a series of choices, up to and, yes, including, the morning after?

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