Two horseman of the governance apocalypse - the precautionary principle and the disparate impact doctrine

The Precautionary Principle and Disparate Impact are two of the most pernicious, foolish, and demonstrably counter-productive concepts to emerge from the turgid Marxist-Critical Theory matrix. They are the antithesis of rational, evidence-based thinking, leading to decline and destruction.

From Title VII Disparate Impact Liability Makes Almost Everything Presumptively Illegal … It Gives the Federal Bureaucracy Extraordinary Discretionary Power. But What Does It Do to the Rule of Law? And Who Benefits? by Gail L. Heriot. From the Abstract:

In Griggs v. Duke Power Co. (1971), the Supreme Court held that Title VII of the Civil Rights Act of 1964 went far beyond prohibiting intentional discrimination on the basis of race, color, religion, sex or national origin. According to the Court, it also presumptively outlawed job actions that have a “disparate impact,” regardless of whether the employer had an intent to discriminate.

The evidence that this was a misinterpretation of both the text and Congressional intent is overwhelming. Up until 1991, Griggs would have been an excellent candidate for an outright and explicit overruling. But the Civil Rights Act of 1991’s backhanded recognition of the disparate impact cause of action makes that more difficult than it otherwise might be.

This article discusses various ways in which disparate impact liability has been bad policy and various arguments for its unconstitutionality.

The Precautionary Principle.

The precautionary principle (or precautionary approach) is a strategy for approaching issues of potential harm when extensive scientific knowledge on the matter is lacking. It emphasizes caution, pausing and review before leaping into new innovations that may prove disastrous. Critics argue that it is unscientific and an obstacle to progress.

The principle is often used by policy makers in situations where there is the possibility of harm from making a certain decision (e.g. taking a particular course of action) and conclusive evidence is not yet available. For example, a government may decide to limit or restrict the widespread release of a medicine or new technology until it has been thoroughly tested. The principle acknowledges that while the progress of science and technology has often brought great benefit to humanity, it has also contributed to the creation of new threats and risks. It implies that there is a social responsibility to protect the public from exposure to such harm, when scientific investigation has found a plausible risk. These protections should be relaxed only if further scientific findings emerge that provide sound evidence that no harm will result.

The principle has become an underlying rationale for a large and increasing number of international treaties and declarations in the fields of sustainable development, environmental protection, health, trade and food safety, although at times it has attracted debate over how to accurately define it and apply it to complex scenarios with multiple risks. In some legal systems, as in law of the European Union, the application of the precautionary principle has been made a statutory requirement in some areas of law.

In effect, though, it comes down to the principle that nothing should be done unless it can be shown beyond a shadow of a doubt that no one will suffer in any fashion from the proposed change. The the precautionary principle firmly removes freedom from society and the marketplace and puts all decision-making in the hand of government or regulatory agencies. It is at its core, Marxism repackaged. It is also hugely conservative and corrupting.

All change is inherently risky. By preventing change by application of the precautionary principle, the government both protects the already established interests and plays god by picking and choosing who is to be the winner (authorized to proceed) and who the loser (anyone challenging the vested interests of the status quo). It is profoundly arrogant, epistemologically unsound, and always leads to loss of life and societal decline.

But with the best of intentions.

Very similarly to the Disparate Impact concept, another inherently Marxist tenant which has snuck into the tent by masking itself as a means of achieving equity and fairness. Despite its inherent rejection of reality, inamicable relationship to science and rejection of evidence. Oh, and it also causes destruction and decline.

Disparate impact in United States labor law refers to practices in employment, housing, and other areas that adversely affect one group of people of a protected characteristic more than another, even though rules applied by employers or landlords are formally neutral. Although the protected classes vary by statute, most federal civil rights laws protect based on race, color, religion, national origin, and sex as protected traits, and some laws include disability status and other traits as well.

Where the Constitution attempts to establish equality before the law, the disparate impact doctrine seeks to establish equality of outcome. Yet another instance of a Marxist wolf in Age of Enlightenment clothing.

All categories of identifiability have variance and disparate impact - handedness, height, weight, cultural practices, religious observances, sexual mores, social norms, IQ, physical attractiveness, gender, career, education attainment, parsimony, etc. A single action imposed upon a population with a disparate spread of these traits is going to have a disparate impact, even holding a single variable identity fixed.

Within a racial community, or religious, or marital status community (i.e. holding any one of those identities fixed) if you impose a fixed treatment on that singular community which has variance across the spectrum of other identities, you will have a variance in outcomes.

It is not about race or gender or any other "protected" status. It is about statistical and empirical reality.

In fact, that might be the alternate term. Disparate impact is reality. We are seeing that right now. We have a global pandemic the nature of which we don't fully understand. We don't have data to particularize the disease. Yet. We don't understand what is going on. Yet. Eventually we will.

But even as this mass event is occurring with all its attendant panic, there are ideological fanatics insisting that there is a disparate impact on communities of color and this reflects some underlying oppressive communal structure. It is a religious belief so they are passionate in their protestation. And they are well incented. Wherever there is "disparate impact" there is the hope for government money for the followers of the disparate impact religion.

Is there a disparate impact on people of color. The data does not support that yet. Is there a disparate impact on the African-American community? It appears there might be.

Is it due to oppressive governmental and communal structures? Possible but unlikely. Occam is over there yelling about alternative hypotheses that more easily match the fact set.

From what we know, it appears that the obese, the hypertensive, those living in dense environments, those frequenting public transport, are particularly prone. The American-African American community are disproportionately urbanized, particularly in a handful of the most dense cities, are disproportionate users of mass transit, and are disproportionately obese and suffer from hypertension.

Do those explain the apparent (but not yet established) racial disparate impact? We don't know yet. But almost certainly.

The precautionary principle and the disparate impact principle ought to be banished to the margins of all governance. They are occasionally, under particular circumstances, useful tripwires to alert us to something we might otherwise not notice. But as central governing principles? Bah. We don't need no stinking Marxism.