Wednesday, December 12, 2007

Even I Have Occasional Libertarian Leanings

I vote for tax increases for educational spending and other public services; I consider myself an anti-fan of U.S. v. Lopez and U.S. v. Morrison, was pleased by Gonzales v. Raich; was all "hells yeah" when I read Cass Sunstein's The Second Bill of Rights; am pro-regulation w/r/t the environment, employment, and securities law; think anti-trust law is under enforced; think governmental oversight agencies should have more power to police and enforce the law; and am thus generally a Commie pinko by most libertarians' standards. And yet I love such people and they love me. Mainly because I don't talk about this much and don't really care what you do or think as long as you don't care what I do or think. Wait, did I just sound like a libertarian there?

I do have really strong individualist tendencies, which occasionally confront my social justice and welfare commitments. I mean, it would be better for my political beliefs if everyone thought and acted as I do, and I tend to vote for politicians who believe in the same things (sort of, I am a pragmatist and so vote for the politicians that serve my most important political imperatives, e.g. pro-choice, anti-war, anti-torture, etc.). But I don't really proselytize or expect that others agree with me. In this manner, I am the worst political citizen: my concerns are communal, but my method very singular. Perhaps I have too much compassion and respect for others' people differences--the true mark of a liberal! I've never done phone banking. I've never really campaigned for anyone. I've donated to campaigns, where I imagine the people in charge take my money to do what I don't do. I can't explain the schism between my politics and my passive form of political participation. It's wholly different from my academic work, in which I do actually try to convince people to believe in what I believe and do things different: recognize discrimination in the workplace! do something about it! reform that law!

But I can imagine management and economic justifications for implementing suggestions to reform organizations to be less discriminatory. Gary Becker, discrimination is not economically rational or efficient. I dont' trust people though, so I do tend to want the government to regulate the workplace to enforce rights and provide avenues for legal redress.

But, sometimes, the government in the workplace is not so great. Perhaps I still retain some of my Libertarian leanings from my Objectivist Society years (1994-1997).

Over at Feminist Law Profs, David S. Cohen reminds me of one such instance: The Brandeis Brief in Muller v. Oregon, an argument for bad paternalistic regulation:

I’m teaching Muller v. Oregon (1908) on Thursday. For those who don’t recall it, it’s the case during the Lochner era in which the Court upheld a maximum hour statute because the statute applied solely to women. The opinion has all sorts of paternalistic drivel and concludes as follows:

"The two sexes differ in structure of body, in the functions to be performed by each, in the amount of physical strength, in the capacity for long-continued labor, particularly when done standing, the influence of vigorous health upon the future wellbeing of the race, the self-reliance which enables one to assert full rights, and in the capacity to maintain the struggle for subsistence. This difference justifies a difference in legislation, and upholds that which is designed to compensate for some of the burdens which rest upon her."


What the case has become most famous for is the “Brandeis Brief,” the amicus brief filed by then-attorney Louis Brandeis. It gives the Court the fodder for its paternalism, with all sorts of “evidence” that women are weaker than men and need special protection. It’s a good jumping off point to talk about the way the Court treated women as well as the role of amicus briefs in constitutional litigation.


There is good regulation and bad regulation, and such archaic, gendered policies protecting "delicate" women from over-working themselves (not that I want anyone to overwork themselves; which is why I am pro-minimum wage law, mandated breaks, workplace safety regulations, OSHA enforcement) or fetal protection policies are terrible. While I do want the laws governing the workplace to be more accommodating of workers' rights to family and medical leave, particularly because of the disparate impact on women because of their socially reinforced primary caregiver roles, I don't want to go back to Muller v. Oregon or UAW v. Johnson Controls.

It'll be tough to articulate a balance between more stringent regulation of the workplace to enforce rights that would go to increasing equality and closing the gender wage gap in the workplace without going into the nether region of arguing for discrimination-justifying difference and excessive paternalism, but I hope it can be done. It has to be done.

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