A debate in the Supreme Court yesterday touched on a topic that deserves vastly more attention than it gets: the relationship between motivation and the scope of human rights. Here’s why it matters. Vast amounts of anti-discrimination law, in the US and around the world, presume that government is in a position to judge why we do what we do and thus restrict the range of our decision-making power.
We can hire and fire who we want so long as the decision is not made “on grounds” of race, nationality, religion, gender identity, sexual orientation, and so on. We can say what we want provided what we say is not motivated by a desire to delegitimize or harm. We can buy and sell to whom we want so long as our decisions are not backed by invidious purposes. Through such laws, our rights have been made conditional. This concern has come even to affect the criminal code. If some crime can be said to be motivated by “hate,” the penalties are made worse.
Of course this leaves it to the government to decide when, where, and to what extent this is or is not the case, which is to say that government has put itself in the positions of reading our minds and hearts. Because this is not really possible, enforcement has defaulted back to some rules of thumb as enforced by bureaucracies, almost always on behalf of aggrieved groups. That is precisely where de facto quotas in hiring come from and why such laws have ended up creating such social division through the perception that some groups are being granted special privileges.
This is the most dangerous but least-discussed aspect of anti-discrimination law. The Supreme Court found itself debating this very problem in the unlikely context of adjudicating Trump’s executive orders banning travel to the US from certain named nations.
Personal Animus and Public Policy
We might have expected that the Supreme Court debate over Trump’s travel ban would address issues like the separation of powers and the Constitution’s restrictions on executive decision making. Instead, the debate in court went in an unexpected direction. The justices debated with the attorneys on both side a fascinating question: whether the evidence of personal animus of the president should restrict his range of power to issue executive orders that seem to be motivated by that animus.
The situation runs as follows. All throughout the campaign, Donald Trump frequently talked of wanting a “ban on Muslims” coming to the country. His shocking promise elicited huge cheers from his fans, which of course meant that Trump would continue to say it and Tweet it again and again. Once elected, one of his first actions was to impose a ban on immigration from many predominantly Muslims nations. If such a ban were a reflection of discriminatory intent, it would perhaps violate the first amendment’s protection of religious freedom.
But this turns on demonstrating some kind of relationship between Trump’s statements as candidate and his actions as president. The attorneys for the administration said that it should not matter in the slightest what the president said. The executive order should be evaluated on its own terms as policy. The order came down as a recommendation from the Department of Homeland Security and was vetted by national security officials. They argued that he plainly has the power to do this and therefore the ban should stand on its own. The president’s expressed opinions are completely beside the point.
Even a Vehement Anti-Semite?
At this point, Justice Elena Kagan offered a hypothetical to push the point as far as it would go. Let’s say that the president is a “a vehement anti-Semite and says all kinds of denigrating comments about Jews.” He gets power and then bans entry to the United States from Israel. “The question is,” she asked, “what are reasonable observers to think given this context?”
I think the attorney for the president gave the right answer. Solicitor General Noel J. Francisco said that “this is a very tough hypothetical.” Still he stuck to his guns. “If his cabinet were to actually come to him and say, ‘Mr. President, there is honestly a national security risk here and you have to act,’ I think then that the president would be allowed to follow that advice even if in his private heart of hearts he also harbored animus.”
The principle here seems right to me: the executive order is either lawful or unlawful on its own. We don’t want a system by which courts are judging the rightness or wrongness of a law based on the perceived motivations behind its passage, whether those motivations are glorious and holy or invidious and wicked. The executive office of the presidency either has the power or does not have the power to issue a ban against immigration. His speeches have nothing to do with it. I happen to agree.
Based on this thinking, observations are predicting that the Supreme Court will uphold the ban based on the simple principle that precedent and legislation has long established that he can do this. Here I dissent; it seems very plain to me that such powers do not exist in the US Constitution. At this point in history, however, that fact is mere water under the bridge. The Supreme Court long ago put its stamp of approval on the president’s possession of near-dictatorial powers.
Why Is the President So Special?
But this leads to a very awkward reality. The president will become the only citizen in the US whose decisions and actions will not be judged based on the perception that he is acting with discriminatory intent. The rest of us, as mere subjects and tools of the bureaucracies, will continue to face a massive regime that purports to judge our decisions based on what government says is being harbored in our hearts.
A good example came from the opposing lawyer, Neal Katyal, in the case above. “If I’m an employer and I have 10 African-Americans working for me and I only fire two of them” but keep the other 8, “I don’t think anyone can say that’s not discrimination.”
Oh really? Is that so incredibly obvious that it doesn’t need even to be proven? What if those two really needed to be fired? What if they are not good employees? Here we have a lawyer opposing the president openly saying that he knows for sure that such firing would be driven by malice and therefore contrary to the law.
Here is the problem: the presumption of guilt on the part of any decision maker whose choice negatively impacts a protected group. This is what gives rise to the perception that we live in an Animal Farm world: everyone is equal but some people are more equal than others.
The Case of Jordan Peterson
Let’s consider the case that brought to prominence Jordan Peterson, a leading public intellectual of our time. He made headlines as a professor who refused to submit to the demand – which he perceived as having come from legislation – that he refer to gender-transitioned students by their own preferred pronoun (such as “zhe” and “they”). He said that he would refuse to submit to force because this interferes with his own speech rights. He claimed that the new law was compelling speech and he refused to go along.
At issue here was Canada’s Human Rights Act which had been amended to protect "gender identity or expression" to the list of prohibited grounds of discrimination. Peterson’s critics have said that his claims are utterly ridiculous. They say that there isn’t any threat to free speech by the inclusion of gender identity to the list of forbidden forms of discrimination. The Canadian Bar Association agrees completely:
Nothing in the section compels the use or avoidance of particular words in public as long as they are not used in their most “extreme manifestation” with the intention of promoting the “level of abhorrence, delegitimization and rejection” that produces feelings of hatred against identifiable groups.
Read that again and ask yourself who is to decide: the speaker or the victimized? If someone demands to be called “zhe” and the speaker fails to comply, the result can be the very complaint we get daily from aggrieved parties that this failure to say the right words amounts to delegitimizing and rejecting the chosen identity of the listener. The burden of proving otherwise belongs to the speaker.
It is not even a stretch at all to see this particular non-discrimination law, as stated, is a direct attack on free speech. Even the Bar Association’s rebuttal makes the point!
Peterson is not only correct here; he is discerning and courageous to see it, call it out, and stand up to it. He essentially said that it is not up to the state to discern his motivations for what he is says much less threaten him to say this instead of that. This is a direct attack on human rights.
The Court’s Decision
As much as I do not want to admit it, it would be precisely right for the court to decide that Trump’s campaign statements should have no bearing on the legality or illegality of his executive order. It is not up to the courts to assess the motivations for what we do, much less to evaluate the inner workings of our minds and hearts, not even the president’s. The law should deal only with what can actually be known: what we do. Oddly, a court decision in favor of the executive order puts President Trump in the position of being the only citizen in the Western world whose statements and motivations will not be so evaluated.