Politics & Policy

Our Unfair Shake

Don't confuse "justice" with "something I don't like."

Last week I wrote my syndicated column (just picked up by the Kansas City Star, by the way) on this Secret Service agent, Walied Shater, who was barred from boarding an American Airlines flight. Interestingly (to me), this elicited — for the first time — more e-mail for my syndicated column than for the G-File.

More interesting (I hope) was the ire from many conservatives because I said Shater was treated unfairly. Just to clarify: I supported the pilot’s decision and endorsed the use of racial profiling. I simply argued that since we now know that Shater is not a terrorist, in hindsight he probably was treated unfairly. Or at least, it’s understandable that Shater would feel that way.

Whatever, that’s not really the point. What I want to talk about is this commonplace confusion that something cannot simultaneously be right and unfair. There is a deep and sweeping befuddlement in American culture which says that unfairness is always and everywhere inappropriate. To be sure, this is partly a sign of the goodness of America — stemming from our desire to give everyone a fair shake, as it were. It becomes a problem when we define fairness in personal terms, hence confusing “justice” (an objective term) with “something I don’t like.” Parents know what I mean. Kids think it’s unfair when they’re grounded, but that doesn’t mean it’s unjust.

This confusion, I think, grows from a desire to establish unconstrained, universal justice here on earth (see Tom Sowell’s wonderful book A Conflict of Visions if this interests you). But for all I know it could stem from fluoridated water, since the two were introduced around the same time (if only we’d protected our precious bodily fluids!).

Wherever it comes from, it manifests itself in all sorts of areas. But nowhere is the confusion more evident than in the inflatable moon-bounce-ride world where self-esteem is king. There, if people are made to feel bad about themselves because of a policy or statement, that statement or policy must be wrong. There are few arguments on college campuses today that cannot be clarified by this basic insight. The school administration does something “insensitive” and ipso facto it must be wrong. Just listen to the complaints coming from Cornel West and the Afro-American Studies Department at Harvard, for the latest example.

The watershed moment for this thinking was when the Supreme Court cited those famous “doll tests” conducted by Kenneth Clark in their Brown v. Board of Education decision. The tests showed that black kids in segregated Southern schools preferred white dolls, and hence had low self-esteem. This low self-esteem, in turn, was cited as a justification for getting rid of the segregation.

Now, of course, I think the Court reached the right conclusions in Brown — but I also believe it did so for the wrong reasons. I agree with Robert Bork, who wrote in The Tempting of America that “the end of state-mandated segregation was the greatest moral triumph constitutional law has ever produced.” But, Bork writes, Brown, while “a great and correct decision,” was also “supported by a very weak opinion.”

Indeed, as former NR bright light Ernest van den Haag noted in 1960, the tests Clark conducted were, at minimum, irrelevant–and Clark was more than a bit dishonest. Writing in The Villanova Law Review, van den Haag noted that Clark also ran doll tests in integrated schools up North, and got the same or even more dramatic results as he did in segregated schools. Black kids everywhere chose white dolls over black ones; segregation was irrelevant. Clark didn’t tell the Court about those tests.

Anyway, I just learned that part about van den Haag and I think it’s interesting. The relevant point, however, is that the Court ushered in an era in which social policy is seen as necessarily a bulwark against low self-esteem (for more on this, see “World of Feelings“). And the trouble, of course, with tying the kite of social policy to the tail of self-esteem is that self-esteem is both indefinable and fundamentally subjective.

But there are other places where this sort of thinking flourishes. In 1992, Clarence Thomas, a recent arrival on the Supreme Court, was ridiculed by liberals for dissenting in the case of Hudson v. McMillian. Thomas wrote that a Louisiana prison inmate, Keith Hudson, didn’t have his constitutional rights violated when the guards beat the stuffing out of him. Thomas wasn’t in favor of the beating, and noted that the guards might have been open to criminal charges — not to mention lawsuits. But the beating didn’t violate the Eighth Amendment’s prohibition against cruel and unusual punishment. Rather, Thomas argued, the Court’s majority was trying to turn the Constitution into “a National Code of Prison Regulation.”

The notion that something could be terrible, unfair, and even illegal and, simultaneously, constitutional shocks liberal sensibilities. Thomas was scorned by those he described as believing that the Constitution “must address all ills in our society.” These folks theologize the Court to the point where it’s inconceivable that it wouldn’t do what is right (as opposed to what is constitutional).

Let’s take just one more example, this one from the recent headlines. The Justice Department has announced it wants to deport some 6,000 so-called “absconders” of predominantly Middle Eastern descent. These people come from countries where al Qaeda is known to operate. Importantly, these people are here illegally. They were sent letters instructing them to show up for their deportation hearing. Rather than showing up in court, they split. That’s why in the business, they call them “run letters.”

Now, over 300,000 illegal immigrants have received run letters, and most of them are Hispanic. But the Justice Department is focusing on just these 6,000 men. Arab-American rights groups have called this unfair because it singles out Arabs over, say, Guatemalans. James Zogby of the Arab American Institute, and others, denounce this as profiling. They think that’s an argument-stopper. If it’s profiling, it’s got to be wrong, because it is unfair to single out a group. Zogby said last night on CBS: “Is it profiling? Of course it is. Is it an effective law-enforcement tool to deal with terrorism? Of course it’s not.”

He’s right that it’s profiling, but so what? And the critics are also right when they say it’s “unfair,” to the extent that Arab lawbreakers are getting the shaft when Mexican lawbreakers aren’t. But Mexicans aren’t disproportionately likely to be members of al Qaeda; illegal immigrants from Yemen or Saudi Arabia are. I don’t have the numbers in front of me, but I promise you, the math checks out. Concentrating on the people more likely to be terrorists, as opposed to the people more likely to work below minimum wage at a car wash, seems a reasonable way to start. The government doesn’t have to prove these people are terrorists. It only has to prove they’re here illegally, and we already know that they are. That’s why they made the list and that’s why they ran away.

Would it be more fair, in Zogby’s eyes, if the Justice Department simply deported all such absconders, in order to make sure the al Qaeda guys were deported? Of course, the government should do that; but the reality is that it has to start somewhere. So how should the U.S. government prioritize the deportations? By height? By weight? That would at least be the best way to reduce the gross tonnage of illegal immigrants in the U.S.; but as the United States of America is not a boat or a hot-air balloon, those don’t seem like the best criteria. My personal preference is for the attorney general to announce that they’re going to deport people alphabetically. That way, Arabs come up pretty early. But in the meantime, why not stick to the plan of focusing on fugitives who happen to come from countries where people are more inclined to be terrorists? I know this is unfair and hurtful to the self-esteem of Saudis who are here illegally but not actually terrorists, but that doesn’t mean it’s not the right thing to do.


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