Thursday, November 03, 2022

pshat vs practice in anti-discrimination law

From The Great Unwokening, a summer 2022 article in The Claremont Review of Books:
Though our landmark anti-discrimination laws were written in race-neutral terms, the main purpose of the 1964 Civil Rights Act was to correct laws and social conventions which discriminated against a specific group: black Americans. Talmudic scholars have a term, peshat, to describe the form of interpretation that restricts itself to a text’s surface meaning alone. The peshat of the 1964 law, then, would suggest that there should be no legal or moral difference between a white person discriminating against a black person, and a black person discriminating against a white person. But in practice the latter conduct is defined as reverse discrimination, frequently said either not to exist or not to matter. That is to say, discrimination by whites, and not against them, is what really counts as discrimination in civil rights law as practiced, despite the law’s surface appearance.

A second important element of the contrast between peshat and practice in our civil rights law is that we keep identifying new classes of people, in addition to blacks, against whom discrimination is prohibited. For our purposes, the key additional prohibitions forbid discrimination by whites against racial minorities in general, by men against women, and, nowadays, by straights against gays or by the “cisgendered” against the “gender non-conforming.” Strictly speaking, the text says that all discrimination according to “race,” “sex,” and “gender” is prohibited. In practice, though, we have created certain “protected classes,” defined as those “minority groups” against whom one may not discriminate. Members of these groups have learned, thanks to the law, to see themselves as deserving special protections in the aggregate. In other words, the way we have enforced our civil rights laws since 1964 has fostered what we might call protected class consciousness. Moreover, for convenience of enforcement, we put all members of protected classes on one side of every conflict and, well, straight white males on the other.


  1. In order to fight against something, you first have to identify it properly.
    Woke is Communism with the primary terms changed. Instead of "bourgeousie" and "proletariat" you have "privileged White Males" and "oppressed marginalized victim groups".
    Instead of a revolution of the proletariat followed by the establishment of a dictatorship of the proletariat which will forcibly redistribute property to all on an equal basis and a punishment of the bourgeousie so they can never harm the proletariat again, you have an uprising of the oppressed against the privileged followed by a dictatorship of the oppressed during which power and opportunity in society will be stripped from the privileged who will then be placed in a permanent penalty box for the crime of existing.
    Instead of saying "Well it's only a few academics and politicians" we need to remember that only 1-2% of Russians were die-hard Communists in 1917 and that small group managed to commit a lot of evil unchecked for 70 years.

  2. I actually support affirmative action. The only way to reverse discrimination, the pernicious and adherent effects of slavery and government aid programs, is through reverse discrimination that favors black applicants to schools and to corporate positions.