A Philosopher's Blog

Bathroom Law: Federal vs Local

Posted in Ethics, Philosophy by Michael LaBossiere on February 23, 2017

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During the Obama administration, the nondiscrimination laws governing public education were interpreted as requiring schools to permit transgender students to choose which bathrooms they would use. In February of 2017, the Trump administration rescinded these protections.

Attorney General Jeff Sessions argued that the Obama directive was improper and arbitrary. As might be expected, he also advanced the classic states’ rights argument, contending that the directive was imposed “without due regard for the primary role of the states and local school districts in establishing educational policy.”

Education Secretary Betsy DeVos initially opposed Sessions in this matter, but Trump convinced her to agree. To her credit, she did issue a statement about the moral obligation of schools to protect students from discrimination and harassment. Following Sessions, she expressed the view that bathroom access is not a federal concern.

Rescinding these protections does not prevent state and local governments from passing their own laws that provide such protections.  However, it does seem to free state and local governments to pass laws discriminating against transgender students—and this would seem to be the intent behind Sessions’ decision. This raises the moral issue of what matters are best left to state and local government and which should be of federal concern.

While Republicans typically claim to be for state and local control, they are no more consistent in this matter than Democrats are. Rather than having a consistent principle regarding state/local control versus federal control, the parties support state/local control when the state/local governments are doing what they want. When state/local governments are doing what they do not like, they oppose state/local control. To illustrate, Republicans are usually against local control when the local governments want to ban fracking, impose restrictions on gun rights, or provide sanctuary to illegal immigrants. Democrats are typically in favor of local control when local governments want to do those things. While such unprincipled inconsistency is the stuff of politics, the approach to disputes about control should be resolved in a principled manner and with the principles being applied consistently.

I find the general idea of state and local control appealing because there are good arguments supporting this view. One compelling reason is that state and local governments have a better understanding of state and local conditions and are thus likely to do a better job than the federal government. Another compelling reason is that state and local governments are under more direct control of the people affected, which seems more democratic than having the distant federal government impose its will. Because of these reasons, I favor a presumption of local control—that is, the federal government should defer to state and local control unless there are compelling reasons to impose federal authority. As an example, the federal government has a compelling reason to impose its authority in cases in which state or local governments are violating (or permitting the violation of these civil rights).

In the case of bathroom rights, the question at hand is whether the federal government has compelling reasons to impose its authority on state and local governments to ensure that transgender students can choose their bathrooms. The answer depends on two main factors. The first is whether transgender students have a right to choose their bathrooms. The other is what the state and local governments will do in regards to the bathroom choice issue.

If transgender students do have a right to choose their bathrooms and the state and local governments decide to respect this right, then there would be no compelling reason for the federal government to step in. After all, there would be no violation of rights to redress with federal action.

If transgender students do not have a right to choose their bathrooms, then it does not matter what the state and local governments do—there would be no violation of rights that would justify federal intervention.

One obvious way to counter my approach is to argue that the issue of whether transgender students should have the right to choose their bathrooms is not a federal issue. Rather, it is a matter that is to be settled at the state and local level. To use an analogy, while the Second Amendment is a constitutional right, state governments set concealed carry rights. Likewise, while students have a right to bathroom access in schools, it is up to state and local governments to set these rights. This approach does have some appeal and leads to the question of whether bathroom rights are more like gun rights (which are largely under state control) or civil rights (which are supposed to be defended by the federal government when state and local governments fail to do so). While I am inclined to regard bathroom rights as analogous to (or part of) civil rights, this will need to be addressed in another essay.

 

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The Democrats and the Ku Klux Klan

Posted in Ethics, Philosophy, Politics, Reasoning/Logic, Uncategorized by Michael LaBossiere on February 13, 2017
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One interesting tactic employed by the Republicans is to assert, in response to charges of racism against one of their number, that the Democrats are “the party of the Ku Klux Klan.” This tactic was most recently used by Senator Ted Cruz in defense of Jeff Sessions, Trump’s nominee for attorney general.

Cruz went beyond merely claiming the Democrats formed the Klan; he also asserted that the Democrats were responsible for segregation and the infamous Jim Crow laws. As Cruz sees it, the Democrats’ tactic is to “…just accuse anyone they disagree with of being racist.”

Ted Cruz is right about the history of the Democratic party. After the Civil War, the southern Democratic Party explicitly identified itself as the “white man’s party” and accused the Republican party of being “negro dominated.” Some Southern Democrats did indeed support Jim Crow and joined the KKK.

What Ted fails to mention is that as the Democrats became the party associated with civil rights, the Republicans engaged in what has become known as the “southern strategy.” In short, the Republicans appealed to racism against blacks in order to gain political power in the south. Though ironic given the history of the two parties, this strategy proved to be very effective and many southern Democrats became southern Republicans. In some ways, the result was analogous to exchanging the wine in two bottles: the labels remain the same, but the contents have been swapped. As such, while Ted has the history correct, he is criticizing the label rather than the wine.

Another metaphor is the science fiction brain transplant. If Bill and Sam swapped brains, it would appear that Sam was guilty of whatever Bill did, because he now has Bill’s body. However, when it comes to such responsibility what matters is the brain. Likewise for the swapping of political parties in the south: the Southern Democrats condemned by Cruz became the southern Republicans that he now praises. Using the analogy, Ted is condemning the body for what the old brain did while praising that old brain because it is in a new body.

As a final metaphor, consider two cars and two drivers. Driving a blue car, Bill runs over a person. Sam, driving a red car, stops to help the victim. Bill then hops in the red car and drives away while Sam drives the victim to the hospital in the blue car. When asked about the crime, Ted insists that the Sam is guilty because he is in the blue car now and praises Bill because he is in the red car now.  Obviously enough, the swapping of parties no more swaps responsibility than the swapping of cars.

There is also the fact that Cruz is engaged in the genetic fallacy—he is rejecting what the Democrats are saying now because of a defect in the Democratic party of the past. The fact that the Democrats of then did back Jim Crow and segregation is irrelevant to the merit of claims made by current Democrats about Jeff Sessions (or anything else). When the logic is laid bare, the fallacy is quite evident:

 

Premise 1: Some Southern Democrats once joined the KKK.

Premise 2: Some Southern Democrats once backed segregation and Jim Crow Laws.

Conclusion: The current Democrats claims about Jeff Sessions are untrue.

 

As should be evident, the premises have no logical connection to the conclusion, hence Cruz’s reasoning is fallacious. Since Cruz is a smart guy, he obviously knows this—just as he is aware that fallacies are far better persuasive tools than good arguments.

The other part of Cruz’s KKK gambit is to say that the Democrats rely on accusations of racism as their tactic. Cruz is right that a mere accusation of racism does not prove that a person is racist. If it is an unsupported attack, then it proves nothing. Cruz’s tactic does gain some credibility from the fact that accusations of racism are all-to-often made without adequate support. Both ethics and critical thought require that one properly review the evidence for such accusations and not simply accept them. As such, if the Democrats were merely launching empty ad hominem attacks on Sessions (or anyone), then these attacks should be dismissed.

In making his attack on the Southern Democrats of the past, Cruz embraces the view that racism is a bad thing. After all, his condemnation of the current Democrats requires that he condemn the past Democrats for their support of racism, segregation and Jim Crow laws. As such, he purports to agree with the current Democrats’ professed view that racism is bad. But, he condemns them for making what he claims are untrue charges of racism. This, then, is the relevant concern: which claims, if any, made by the Democrats about session being a racist are true? The Democrats claimed that they were offering evidence of Session’s racism while Cruz’s approach was to accuse the Democrats of being racists of old and engaging in empty accusations today. He did not, however, address the claims made by the Democrats or their evidence. As such, Cruz’s response has no merit from the perspective of logic. As a rhetorical move, however, it has proven reasonably successful.

 

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