Saturday, December 26, 2009

My Constitution, Section 18

Section 18 - Equality before the law

No government shall make law or otherwise act with reference to:
(i) race or similar classification;
(ii) genetic or physiological characteristic (other than sex) not reasonably identifiable as germane to the needs of protecting rights;
(iii) sex, except within the military, who may segregate the sexes only as far as is reasonably and demonstrably required to achieve peak performance;
(iv) any form of social standing, without derogating the right to make judgements of veracity of testimony as are reasonable to make;
(v) membership in any group or organisation;
(vi) the State in which an individual has in-State citizenship or is otherwise domiciled, except for the exercise of voting rights;
(vii) whether or not an individual has any national or in-State citizenship, or voting rights, except where national security is a legitimate concern and thus reasonably requiring work by those under oath of citizenship; or
(viii) any thoughts or beliefs, or past actions based thereupon, except for matters pertaining to visitation, immigration and citizenship;
but disproportionate results of reasonable action shall not constitute proof of breach of this section.
As far as the government is to be concerned, all private individuals have the same rights and are entitled to be treated according to the same standards. Most of this section is concerned with ruling out all the variations of departures from that standard in relation to private individuals. It also takes for granted that private individuals have the right to discriminate among other private individuals as they so decide, which will include when private citizens are members of a jury and have to make a judgement of how trustworthy a witness or a defendant or other party in a court are. An example of that will be making judgements of the testimonies of drug-dealers in say a murder trial, but of course real justice will require giving proper consideration to what they have to say and not dismissing it out of hand.

Within its own functions, the only distinctions that a government may make among people are those that are objectively identifiable as germane to upholding individual rights via the proper exercise of retaliatory force. This is either in relation to people who work for that government or the specific operations of government in relation to specific individuals.

As to genetic characteristics, I can’t imagine much besides sex (see below) and biological capabilities. For instance, if there has been a biological attack I don’t think it inconceivable that a response unit formed of persons with genetically-provided natural immunity could be formed and sent into the particular field. Another might be the need to form a unit of people of a particular ethnic heritage to work as deep recon or spies.

For sex discrimination in the military, personally I wouldn’t even go so far as to exclude women from front-line combat roles merely for being women, but instead to segregate the sexes when personnel are going to be jammed tight with each other for several days or weeks at a time. Even then, how much proximity constitutes “jammed” is going to be contextual, since there is a world of difference between being onboard a submarine and onboard a frigate or aircraft carrier. At present I don’t think men and women should mix on vessels as tightly packed as submarines, but I don’t have an automatic objection to an all-woman submarine so long as they’re held to exactly the same operational standards. I have no objection to mixed-sex crews on big ships, since there’s likely to be plenty of room there to have sex-segregated crew quarters that wont compromise ship integrity. For other vessels, eg patrol boats, that should be left up to policy guided by reasonable practical needs.

Another military concern is extended in-field missions by army soldiers (and US Marines and equivalent branches around the world). I have not made investigation of it directly myself, but I have seen commentary from former soldiers that suggests that most women just aren’t suited to being 40-50 days in deep enemy territory without access to hygiene facilities – and screaming “EWWW!” is no excuse from not wanting to consider this. However, that being said, if it can be shown that this is not a problem then the matter becomes one of the combat fitness of each woman in each case, and that’s up to her commanding officers to decide as based on policy set by senior staff and what they have been directed to institute from their elected and appointed civilian superiors.

In any event, the practice is going to have to be guided by both principle and further concrete observations of what is inherent in human nature and what is merely a cultural quirk (eg how civilised people are finally over the garbage of objecting to mixed race units). That much is up to the politicians and the top brass to look at, and to set policy and judgement-frameworks for accordingly. What the Constitution must do is allow for this in regards to exemptions from general bans on discrimination.

The other possibly controversial points are part of the provisions for discrimination based on citizenship and political belief. Item 6 wont cause problems, but 7 and 8 will.

Item 7 will be only partly controversial, because it is limited to sensitive government-secret issues (eg military, foreign relations matters, and so on) where infiltration by spies and saboteurs is obviously going to be a real issue. Those who would complain about this in principle are either fools or are ideologically opposed to strong national defence – and who themselves ought be excluded from sensitive positions because there is the not unreasonable possibility they’d convince themselves that revealing the secrets is the right thing to do by “higher standards” or whatnot.

Item 8 will be very controversial because it is direct discrimination against foreigners and citizenship applicants on the basis of their philosophical and political beliefs. Some wags might even say it is treating people as guilty until proven innocent, but that’s not the case at all. It is the government that has to prove its case, where if there is no evidence against someone that would preclude visitation or immigration then it will go ahead without the individual in question being required to demonstrate a thing. For citizenship, however, the applicant is seeking legally recognised ability to order someone else’s law enforcement agents to point guns in that same someone’s face. In response to that, that other someone has every moral entitlement to make sure that whoever they let their agent listen to is going to be reasonable in doing so. This is also why I reject the idea of automatic citizenship for those born in a country.

The final point is that there is a difference between policy and results. The mere fact that the results look as though there is discrimination at work is not enough to support an accusation - that is a cum-hoc or post-hoc fallacy. The violation itself is in the doing, not the consequence, and that is going to require actual evidence of the doing and not merely reference to results.


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