Saturday, June 11, 2005

Column on A Terrible Favoritism

Injustice versus Entrenched Legal Favoritism

Tibor R. Machan

Why should journalist and ministers be exempt from government meddling
when the rest of us suffer state intervention on so many fronts? Or to
put it much better, why should the rest of us all suffer government
meddling while those in journalism and the ministry get to be free?

There really is no good reason for such favoritism. Why should the
criminal law, especially when it comes to violent crime, observe the ban
on violations of due process while professionals are being
regimented?subjected to various rules, and fines if they do not comply?by
governments, despite having done nothing wrong at all? Such prior
restrain, such ?precautionary,? pre-emptive policies have no place in a
free society.

No one has the moral authority to restrain another on grounds that the
other may perhaps or could possibly embark upon the violation of another?s
rights. The demonstration of clear and present danger or probable cause is
required for this, under the strict supervision of those appointed to
stand guard against violation of due process, that is to say, of
everyone?s individual rights. That?d be justice!

It is interesting, even outrageous, that in an era of
anti-discrimination?wherein so much emphasis is placed on the evil of
certain kinds of individual prejudices that some people, even in their
personal but especially in their professional, lives practice toward
others?the system of laws under which we live is rife with systematic
unjust discrimination. Those in journalism, the arts, fiction and
non-fiction writing, the ministry, priesthood, and similar fields are
given near total protection from state interference. That is the impact
of the First Amendment to the US Constitution, which now trumps all state
constitutions with this protection of the individual liberty of those
fortunately enough to have ended up in these fields of work.

At the same time, in the very same country, other features of the legal
system impose draconian regulations on people whose professions are not
among those protected by the First Amendment. And no one is hollering
about this, no civil rights movements are afoot protesting it all,
registering outrage with the powers that be about the injustice of it all.

One may surmise that perhaps there is some kind of blindness afoot here.
Yet it is so clear, so obvious that there is favoritism going on and that
those outside of journalism and religion are being treated in
systematically prejudicial ways.

Of course, the solution to this massive and widespread injustice would be
pretty simple: set all the professions free, get rid of all the
regulations, licensing laws and paternalistic, pre-emptive supervision
imposed on all people practicing whatever profession and do what the
criminal law requires, namely, interfere with anyone only once there is
demonstrable evidence of wrong doing or at least its high probability. It
would, under such a system, be illegal for the government to make rules of
conduct for anyone in any field of work?only professional (voluntary)
associations could, as could various contracting parties by their free
agreement. The psychiatrists or architects or TV repair people or
pharmacists or doctors could all form organizations that would bind
members who join of their free will to various policies, codes and the

But if someone wanted to stay out of such groups and go it alone in some
profession and could manage to find customers or clients, this would not
be prohibited or impeded by any state authority. If something went amiss
with the service being provided, it would have to be hashed out in
litigation or adjudication, with no resort to the device of pre-emptive

Alas, this idea, which is simply part and parcel of a reasonable theory of
justice, is not getting play in our political arena. Now and then we hear
about how government regulations stymie economic development, restrict
entrepreneurial savvy, cause unemployment and the like. And one also hears
about how government regulatory bodies get captured by the very industries
they are supposed to regulate for the benefit of costumers and clients; so
the government is not just perpetrating massive unjust discrimination but
extending extra-special favors to various firms and professionals in an
area. But these are all details, important as they may be.

What really is outlandish and, indeed, should not be tolerated in a
country aiming for justice for all, is that government meddling in most
professions is preemptory and does violence to due process of law.

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