Tyranny Taught at Yale Law School

Tibor R. Machan

Yale Law Professor Kenji Yoshino wrote a piece for The New York Times Magazine, “The Pressure to Cover” [01/15/06], that’s a frightening diatribe in favor of a police state. Its ideas pretty much match the worst portions of the Right Wing’s Patriot Act—another piece of evidence that Left and Right are mostly two sides of the same coin.

This man proposes that everyone who is dissatisfied with any condition in his or her life has the civil right to seek relief—e.g., be accepted by others on his or her terms. This idea is to completely abolish the right to free association so all those whom some do not like will be forced to be embraced by all those who do not wish to be with them.

This, of course, is the logical implication of those elements of the civil rights legislation of the early 60s that went beyond freeing people from official government segregation and discrimination. When those laws began to force people to hire others whom they didn’t want to hire—for whatever reasons, from whatever motives be those decent or vile—the dice was cast in the direction of making people associate with each other whether they choose to do so. And Professor Yoshino is all too eager to take it all to its logical end: make society conform to his conception of human harmonious co-existence. (I am surprised he isn’t actually proposing to force people to go on dates or even marry people they aren’t attracted to because, well, wouldn’t it be great for them if those they want would want them, too.)

Yoshino is upset about the fact that some people have to cover their own habits, likes, styles of attire or hair, dislikes and so forth in order to accommodate others with whom they wish to association in various endeavors, including various organizations (especially with employers, schools, teams, clubs, etc.). When American Airlines was forced to hire or keep on flight attendants whose hairstyle management considered—right or wrongly—objectionable, undesirable, the courts paved the way for Yoshino’s radical police state. Now he can argue, by way of the familiar approach of the law, namely, precedent, that all those who object to others for whatever reason should be forced to shut up about it, put up with everything they dislike, because acceptance on terms others may well abhor is one’s new civil right.

This, of course, is just what most of those who were condemned for supposedly fostering discrimination, even racism and sexism, by objecting to forced integration feared all along. Many of them had no objection to associating with people of different races, sexual preferences, etc., and so forth—they did, however, see the writing on the wall, the writing that spelled “Professor Yoshino’s Hell on Earth.” It is the hell in which one’s choices of who will be acceptable fellows, who won’t, do not matter at all. What matters is what the likes of Professor Yoshino think constitutes a proper—and forced—union among people.

In his piece, which is chuck full of equivocations and verbal slights of hand, Professor Yoshino says “it is now time for us as a nation to shift the emphasis away from equality and toward liberty in our debate about identity politics....” But by “liberty” Yoshino means that one is entitled to impose oneself on others—at work, in clubs, at schools, etc.—regardless whether these others want to associate with one. Yoshino hopes that “People confronted with demands to cover [meaning to hide or disguise the traits to which others with whom they wish to associate object] should feel emboldened to seek reason for that demand, even if the law does not reach the actors making the demand or recognize the group burdened by it.” That is to say, even if there are no laws yet forcing others to associate with you—say, no law forces you to admit into your home people whose grooming or race or music or whatever you disapprove of, whether rationally or not—you should be emboldened to demand that these folks provide justification for their exclusion of you from their midst.

Oh yeah? Why must I give anyone such justification? Well, Yoshino seems to believe, because they have a civil right to it from you. But does he not see that such a policy makes me their involuntary servant, one who must report to them with my reasons even if I would rather do something else or not tell them anything at all. In Professor Yoshino’s world we are all to be coerced into explaining ourselves to others and, the next step, if we refuse to do this, we will receive sanctions, at first from some pressure groups but in time from the law itself.

Fact is, free men and women should not be subject to such coercive impositions. If they have irrational objections to others, they must be reached without coercion, by education, social pressure, boycotts, or ostracism—but left alone if they refuse. The nightmare of a harmonious world in which everyone will accept, even love everyone else, in which all differences of tastes and preferences are erased, is a world of coerced conformity—kind of like North Korea!

It is instructive that Yoshino’s essay in The Times Magazine is followed by one in which new laws around the country coercing employers to pay people a “living wage” is championed. The Times seems to be intent on leading the way to a police state in various areas of our lives, while it keeps complaining of President Bush’s efforts to make this happen in others.

We are not in good shape, sadly, and we better watch out because both these forces are undermining our right to individual liberty, the bona fide kind.