Disparate Impact

Tuesday, January 15, 2008

Thomas Sowell has some interesting insights about how environmental regulations have altered the demographics in certain parts of California, including the following:

The financially ruinous powers of delay that these and other laws and institutions can impose on anyone wanting to build anything can be illustrated by a current legal case involving a developer who has for 15 years been prevented from building in the coastal California town of Half Moon Bay.

A judge recently awarded him $36 million in damages but that decision has been appealed. Anyone familiar with the 9th Circuit Court of Appeals knows that anything can happen there -- including more years of delay.

Someone once said that the ability to tax is the ability to destroy. So is the ability to delay. [bold added]
Sowell sums that up very nicely, and in so doing underscores a way that massive government entanglement in the economy injures us above and beyond the financial burdens and other restrictions on our freedom that go with it. Indeed, even apart from such forced delays as application processes, any delay due to something that has to be processed by a bureaucracy (that wouldn't be in a free society) falls under this category of injury.

As valuable as this insight is, it was not the focus of Sowell's article. That was a near-miss of something that could have been a brilliant point. Sowell's main point was that left-wing environmental laws are violating left-wing "civil rights" requirements that business policies and various governmental measures not have a "disparate impact" on minorities. True enough, but he merely ends up grousing that:
[T]he same liberals who applaud that approach when it comes to businesses would be appalled if the same standard were applied to their own environmentalist restrictions that force vast numbers of blacks out of their own upscale liberal communities.

Nor do black "leaders" who are quick to cry "discrimination" and "racism" in other contexts. Apparently it all depends on whose ox is gored.
Yes. Leftists, once again, are seen to be hypocrites, but that is not the essential problem with land-use laws or other laws that interfere with the economy. The problem with such laws is that they interfere with the rights of what Ayn Rand once correctly identified as "the smallest minority": the individual.

Seen in that light, not only are "civil rights" regulations on business activity wrong, but the "lofty and pretty talk" about preserving nature and "open space" that Sowell decries may indeed be "ugly", but it is hardly "selfish".

For any alleged "benefit" anyone gains by passing a law that violates the rights of other individuals is more than offset by the precedent for his own rights to be violated later by another law. This goes just as well for minorities who "benefit" by hiring quotas as well as wealthy people who use the law to keep others from being able to build near their homes.

(I suspect that Sowell agrees that civil rights legislation affecting businesses is wrong, but I would have liked to see this connection made explicitly. Of course, if one justifies support for capitalism on altruist grounds as Sowell seems to here, this would not be a natural conclusion to reach.)

Furthermore, while some laws may indeed injure some demographic groups more than others, shouldn't our focus be more on the fact that the law is injuring anyone at all?

One day, when our public again makes such a connection as a matter of course, we will no longer be in danger of being tyrannized (equally or not), but within reach of having our individual rights protected equally under the law.

-- CAV


Brad Harper said...

For any alleged "benefit" anyone gains by passing a law that violates the rights of other individuals is more than offset by the precedent for his own rights to be violated later by another law...

For those who don't have a fundamental understanding of rights in general, and individual rights in particular, the thought of precedent doesn't even factor into the equation.

To use Sowell's own coinage, they aren't "thinking beyond stage one".

Or, even worse, they assume that the potential violation enabled by their trampling won't ever pertain to them... so they don't care.

They're attempting to be self-serving in a very naive and short-sided manner.

Gus Van Horn said...

Indeed, they are trying to be "selfish" without knowing what that really means, or how to do so.