The firestorm kicked off by Rand Paul’s remarks has again rekindled the debate about the relationship between libertarianism, federalism, and efforts to combat racial discrimination. There is nothing unlibertarian about supporting federal efforts to combat racial discrimination by state governments. At the same time, however, libertarians (and others) should not assume that unconstrained federal power necessarily benefits oppressed minority groups.
I. Libertarianism and Federal Efforts to Combat Racist State Policies.
As David Bernstein explains, libertarianism is a theory of the relationship between individuals and government, not a theory of the relationship between different levels of government. Thus, there is nothing unlibertarian about one level of government (the federal) intervening to curb the racist oppression of another (state or local). Indeed, such policies actually promote libertarian ends to the extent that they prevent state or local governments from taking away the freedom of blacks or or other minority groups.
Not surprisingly, 1960s libertarians such as Ayn Rand did in fact favor federal action to curb discrimination against blacks by southern state governments. Rand, for example specifically denounced the use of “states’ rights” as justification for Jim Crow in several of her works in the 1960s. In Capitalism and Freedom, written in 1962, Milton Friedman criticized the Jim Crow policies of southern state governments and emphasized that “forced integration” of public schools was preferable to “forced segregation,” though he also argued that both could be avoided by adopting school choice policies. As David notes, many 19th and early 20th century antislavery and civil rights activists – including William Lloyd Garrison, Frederick Douglass, and many of the founders NAACP, such as Moorfield Storey – held what would today be considered libertarian views on economic and social policy. They saw no contradiction between that and favoring federal action against slavery and later Jim Crow. Neither should we.
At the same time, many (though not all) libertarians also tend to fear unconstrained federal power more than they fear the power of state and local governments. This is so for two reasons. First, federal oppression necessarily affects more people because it encompasses the entire nation. Second, people can “vote with their feet” to escape harmful state policies, as many Jim Crow-era blacks in fact did by fleeing to the less bad northern states. It is usually harder to escape federal oppression, which requires leaving the nation entirely.
Notice that the “foot voting” rationale for federalism requires federal suppression of state efforts to constrain the mobility of their citizens. Slavery, of course, was the paradigmatic example of a state policy intended to curb mobility. Even after the abolition of slavery, southern state governments adopted peonage laws (which Bernstein and I discussed here), restrictions on “emigrant agents,” and other legislation intended to force blacks to stay where they were. Federal suppression of these state policies is not only defensible in terms of general libertarian theory, but also in terms of the main libertarian rationale for federalism specifically. This is one of the key distinctions between competitive federalism and “states’ rights” that John McGinnis and I developed in detail in this piece.
II. Why Unconstrained Federal Power isn’t Necessarily Good For Minorities.
Despite the above, many still argue that libertarian support for decentralization of government power is at odds with efforts to combat racist policy. Conventional wisdom holds that history proves that the federal government is usually a friend to minority rights, while state and local governments tend to be more hostile. Thus, transferring more power to the federal government at the expense of the states is likely to be good for blacks and other historically oppressed minority groups.
This, however, takes far too rosy a view of the federal government’s historic treatment of minorities. I discussed this point at some length in a 2006 post. Here are a few relevant excerpts:
[I]t is certainly true that there were two periods in our history (roughly 1860-80, and 1940-70) when states’ rights claims were used to counter federal efforts to protect the rights of African-Americans against abuse by state governments. To the extent that such efforts were successful, they certainly represent an important cost of federalism.
However, the conventional story that federalism is bad for minority rights overlooks other, at least equally lengthy, periods in American history when a unitary federal policy would have been worse for minority rights than federalism. At the time of the Founding, a unitary policy on slavery would probably have meant a requirement that slavery be legal all around the nation, since all [but one of the] thirteen original states had legal slavery [in 1787]. During most of the antebellum period (roughly 1790-1860) proslavery forces had much more power in Congress and the executive branch than antislavery ones, and a unitary policy on slavery and/or the rights of free blacks at that time would probably meant a compromise far closer to the slave state laws of the day than the free state ones. In those areas where the federal government did have authority, it tended to use it to promote slavery more than to restrict it. For example, the federal government facilitated the recovery of escaped slaves through a series of Fugitive Slave Acts (which some northern states resisted on “states’ rights” grounds), and slavery was legal in the federally ruled District of Columbia until 1862….
During the post-Reconstruction Jim Crow era (roughly 1880-1940), a unitary policy on black rights would also probably have left blacks worse off than they were under federalism. At that time, southern whites cared far more about keeping blacks down than most northern whites cared about protecting their rights (and a significant minority of northern whites actually endorsed the southern position). Therefore, a unitary federal policy on black rights during this time would likely have led to a system slightly less restrictive than that which existed in the South, but far more oppressive than that which existed in northern and western states…. The absence of relatively more favorable policies in northern states would have prevented blacks from “voting with their feet” against the South, an option that millions took advantage of from about 1900 to 1960; moreover, if blacks could not vote in the North [as would probably have been the case under a unitary racial policy], the incentive of northern white politicians to support federal intervention against Jim Crow would have been greatly diminished, and the landmark federal civil rights legislation of the 1960s might not have come as soon as it did….
[T]he best window we have on what a unitary national policy on race would have been during this era is the way that the federal government of that period addressed racial issues in those policy areas that were incontestably under its control. For example, the District of Columbia was under complete congressional control, and it had the same kinds of Jim Crow policies as the South… The federal civil service was officially segregated under the [Democratic] Wilson Administration in the 1910s, and remained so under later Republican administrations. Federal immigration policy barred most nonwhite immigrants from entering the country under the Chinese Exclusion Act, the “Gentlemen’s Agreement” barring Japanese immigration, and other related legislation. Finally, federal control in overseas territories such as Puerto Rico, the Virgin Islands, and others, did not exactly result in enlightened racial policies there.
I would add that the largest and most important agency of the federal government in pre-New Deal America was the armed forces. And they were thoroughly segregated until 1948. The Marine Corps even excluded blacks completely until 1942. In addition, the federal government was also more involved than the states in oppressing American Indians and expelling them from their land.
Ideally, the federal government should have the power to eliminate racial discrimination by state governments, without having the power to engage in discrimination of its own and without being granted unconstrained authority to regulate other aspects of the economy and society. I don’t have the time or the space to argue for this view here; but I think the text and original meaning of the Constitution (including the Reconstruction amendments) very roughly approximates this ideal. Be that as it may, it has proven to be much more difficult to institutionalize this approach in a real-world political system than to set it down on paper.
State governments have enacted many oppressive and unconstitutional policies that harmed minorities. But the same can be said for the federal government. Libertarian writers have not come up with a foolproof way to maintain an optimal balance between federal and state power on these issues. Neither has anyone else.
uh_clem says:
Am I missing something, or does this post fail to address the main issue that got Paul in hot water i.e. Rand Paul seems to think that it’s beyond the scope of government to disallow racial discrimination by private businesses, and that by doing so the Civil Rights Act oversteps the boundaries of what the government ought to be able to do?
(note the present tense of the word “seems”, since while Paul has walked back his statement, he’s still being fairly cagey about what, exactly, he really thinks)
BTW, David Bernstein didn’t give a straight answer to the question of whether private discrimination should be permissible (or perhaps I missed it). Perhaps Pref. Solmin would care to do so?
May 21, 2010, 4:01 pmCJColucci says:
We know who was part of the problem, who was part of the solution, and who was on the sidelines. Whether some of those who sat on the sidelines or stood with the bad guys did it because they agreed with the bad guys or because they thought they believed in some other principle that they thought more important is a biographical question in which I have no interest. Let them look to the state of their own souls.
May 21, 2010, 4:01 pmLester Livio says:
Rand Paul has done a great disservice to conservatives, libertarians and the Tea Party.
His failure to answer a simple yes or no question whether private, non-governmental discrimination should be illegal will be tied like a millstone around his neck for the rest of his political career–if he still has one.
Rand Paul’s abstract, out of touch philosophical posture on civil rights reminds me of Eugene Volokh’s above-the-fray theoretical philosophizing on black and white racial differences and IQ in the context of the infamous Harvard Law student’s racist e-mail.
I fear that if Volokh ever gets nominated for a public office, he will be subject to the same criticism as Rand Paul.
May 21, 2010, 4:03 pmGino says:
Disallow … permissible … these words burn my libertarian ears! Who the f@ck are you!
May 21, 2010, 4:20 pmruuffles says:
Paul’s comments are in the context of Congress passing the Civil Rights Act. That is, the power of the federal government. Does anyone know if he feels the same way towards a state legislature passing similar laws? I’d swallow his federalism argument a lot easier than the other one.
May 21, 2010, 4:24 pmrichard says:
Actually Bernstein did give a response in one of his responses to a comment – he would have favored the 1964 Civil Rights Bill because of the history of state supported segregation in the South. He didn’t state so directly but his position seems to be that he would oppose state bans on private discrimination in states that don’t have the South’s history of slavery and Jim Crow. I believe he has, in essence, stated that he would oppose power of a state such as Calfirnia to ban discrimination in sales of private housing or its ban on a restaurant banning blacks (Latinos, women, etc) the ability of the federal government to ban private discrimination in states outside the South
May 21, 2010, 4:25 pmBenjamin Davis says:
The problem with the focus on levels of federal vs state in this picture is that there is contractual private ordering.
It took nearly 25 years from the 1920′s to the 1940′s cases on northern private discrimination (restrictive racial covenants in deeds etc as opposed to discriminatory northern state law (creating de facto segregation)) in housing to overcome the initial view that enforcement of private discriminatory clauses in contracts should not be viewed through a contractual lens but through a more public policy lens. Shelley v Kramer.
Paul’s view is essentially taking us back to the 1920′s approach and not allowing the federal government to operate in this space under its Commerce Clause powers as well as 14th Amendment through the 1964 Civil Rights Act in the public accomodations space.
In that view then we would go back to arguments about whether there was a detrimental effect of the kind that the restrictive covenants had on housing that would warrant non-enforcement of private owners preferences to exclude minorities through Court injunctive relief for the minorities on a piecemeal basis.
Public effects of private decisions type analysis to the detriment of the national interest.
That would mean one more piecemeal approach with the effect of placing the burdens on the individual allegedly injured party rather than creating through the Civil Rights Act a public good in this space of a non-discriminatory commercial space of the kind that my son and I experienced as we drove from Toledo to Texas.
All that was necessary was for our money to be green.
Best,
May 21, 2010, 4:32 pmBen
richard says:
“But the same can be said for the federal government. Libertarian writers have not come up with a foolproof way to maintain an optimal balance between federal and state power on these issues. Neither has anyone else.”
Yeah, but liberals and moderates did come up with the 1964 Civil Rights Act which In Title II banned private discrimination in places open to the public (over the opposition of non-racist libertarian sorts like Goldwater). Can anyone be seriously arguing that this law was not beneficial to the country as a whole?
Those liberals and moderates never argued that the actions of the federal government were always favorable to minorities (they knew the history of segregation in the Armed Forces, the Dred Scott decision, etc) but they believed, rightly in my view and history has borne them out, that whatever small infringement on liberty the law produced was more than outweighed by the good to be accomplished. Professor Somin, let me ask you the question straight up (and hope to get a more honest answer than the weasel ones given by Rand Paul) – do you believe that the feds should have passed Title II of the 1964 Civil Rights Act and made it applicable to the country as a whole and not just to the South?
May 21, 2010, 4:34 pmShelbyC says:
Doesn’t everybody believe that some private, non-governmental discrimination should be legal?
May 21, 2010, 4:39 pmrichard says:
“Doesn’t everybody believe that private, non-governmental discrimination should be legal”
Paul was asked by Maddow about the non-governmental discrimination outlawed by Title II of the 1964 Civil Rights Act (he wasn’t asked about any possible non-government discrimination) and he gave as evasive an “answer” as the most mealy-mouthed politician His credibility as a smart thinking, non-pandering straight talking candidate is gone. And his statement today that Obama’s criticism of BP is “un-American” and that accidents sometimes happen shows that he’s not ready for prime time.
May 21, 2010, 4:47 pmrichard says:
Misquoted ShelbyC in the last post -he is only justifying the belief that “some” non-government discrimination should be legal.. But the point, of course, is that Paul didn’t justify “some” discrimination. He seemed to justify the discrimination made illegal by Title II.
May 21, 2010, 4:50 pmrichard says:
And the weasel just cancelled his Meet the Press appearance on Sunday.
May 21, 2010, 4:52 pmCornellian says:
Libertarianism has no necessary connection to federalism. It is perfectly possible to have a unitary state that is more libertarian than a federal state. The best one can say is that in some countries a federal system might tend towards more libertarian outcomes than a unitary system. Canadian federalism is far more decentralized than US federalism but it isn’t a more libertarian country.
May 21, 2010, 4:54 pmShelbyC says:
Did he justify it, or did he say it should be legal? Most people think many things should be legal that they don’t justify. Adultry, for example, comes to mind.
May 21, 2010, 4:58 pmrichard says:
Did he justify it, or did he say it should be legal? Most people think many things should be legal that they don’t justify. Adultry, for example, comes to mind
You’re right. I stand corrected. He didn’t justify it. He said discrimination was morally wrong but seemed to say that Title II was wrong in making that discrimination illegal. I believe, however, that his position is a deeply misguided one.
May 21, 2010, 5:03 pmCJColucci says:
Adultry, for example, comes to mind.
May 21, 2010, 5:05 pmNot when your spouse is reading, I hope.
Anti Federal Interventionist says:
I have to agree with Rand Paul, though I disagree with his backpedalling and evasiveness. All of the Civil Rights Acts, except for those provisions applying to the Federal Government, should be repealed as a unconstitutional infingement on state’s rights. (I would also repeal them as they apply to the Federal Government, but that’s another story). The same goes for the Americans with Disabilities Act (a lawyer boondoogle if there was ever one), the Equal Pay Act, the Voting Rights Acts, and any other act that prohibits states and private citizens from the freedom of association or the freedom to conduct their own affairs. No group should have special rights.
Despite being “mealy-mouthed”, Paul uncontrollably lurched into the truth.
May 21, 2010, 5:08 pmUrso says:
Is this when you attempt to cheat on your wife, but fail? I think it is.
May 21, 2010, 5:10 pmShelbyC says:
:-). In that sense, adultry never comes to mind whether my spouse is reading or not.
May 21, 2010, 5:16 pmFausto says:
I agree with the first comment – I am still waiting for an answer to the core question: under a libertarian political system, should the government (state or federal, it does not matter for purposes of this question) have the right to prohibit private discrimination, in particular in places of public accommodation?
May 21, 2010, 5:17 pmsashal says:
The only good ideas in libertarianism are those that are already part and parcel of liberalism. The rest is poppycock. great takedown here:http://www.salon.com/news/libertarianism/index.html?story=/politics/war_room/2010/05/21/libertarianism_who_needs_it
The nub:
Libertarians like Paul are walking around with the idea that the world could just snap back to a naturally-occurring benign order if the government stopped interfering. As Paul implied, good people wouldn’t shop at the racist stores, so there wouldn’t be any.
I don’t care how often libertarian claims he/she is not a racist. The fact is that his associations, stated beliefs and actions empower racists, empower those who would discriminate against qualified workers based on an irrelevant disability, and empower those who wish the American people to be even more ignorant about the world and the way it works than they already are.
May 21, 2010, 5:17 pmkleindist says:
So, do you believe that owners of private businesses should be allowed to exclude blacks, jews, mexicans, etc.?
Below Mr. Bernstein implies he does but he’s yet to screw up the courage to be explicit about his views. How about you?
May 21, 2010, 5:18 pmCal Lawyer says:
Paul’s objections had nothing to do with federalism. He instead said that government should not prevent private business from discriminating on the basis of race. That same rationale would apply to state governments.
May 21, 2010, 5:22 pmSarcastro says:
That social contract sure is a bitch, ain’t it? I say we repeal all of it! State of nature for the win!!
May 21, 2010, 5:29 pmShelbyC says:
I’ll provide an answer. I do not believe the government should have that power. If you believe that people should have broad autonomy over how they run their business, (the same type of autonomy as they have when they run their personal lives) it’s hard to justify denying people the right to do business with whom they please.
May 21, 2010, 5:31 pmPlugInMonster says:
Of course he won’t give his true answer, because it would mean the end of his career.
May 21, 2010, 5:33 pmRPT says:
He is in full retreat. If you can’t handle Rachel Maddow, much less David Gregory, the weakest questioner of all, how are you going to handle fast pitch? Only talk to Townhall.com people? The EIB network? Stay exclusive to Fox?
May 21, 2010, 5:33 pmCJColucci says:
For reasons of local ineptitude unrelated to national trends, the Democrats have probably given away three Senate seats they should have been able to hold — Mass., Ill., and Ct. Is Kentucky going to be a make-up?
May 21, 2010, 5:40 pmRPT says:
“Rand Paul cancels Meet the Press appearance
After two days of bruising media coverage about his views on elements of the 1964 Civil Rights Act, the campaign of Kentucky U.S. Senate candidate Rand Paul tells me it has canceled the candidate’s upcoming appearance on NBC’s “Meet the Press” — something the show’s host and producer are currently sounding the alarm about on Twitter.
“Rand did Good Morning America today, set the record straight, and now we are done talking about it,” said campaign spokesman Jesse Benton. “No more national interviews on the topic.”
No more national interviews on what subject? Federal power? Criticizing BP? Abolishing the minimum wage and overtime rules? Will he take chickens for Lasik surgery? It will only get worse. So much for competition in the free market of ideas.
May 21, 2010, 5:43 pmbee says:
I, too, would love to hear Ilya and David give a direct answer to the question whether businesses such as restaurants should be allowed to discriminate on the basis of race. Their failure to do so gives rise to all sorts of speculation.
May 21, 2010, 5:43 pmrichard says:
And I love the fact that his first excuse for cancelling was that he is exhausted. He knows on Friday afternoon that he will be exhausted on Sunday morning? He can predict the future!
May 21, 2010, 5:44 pmPlugInMonster says:
Not only that but every Republican voter should be made to answer that question and be put on record.
May 21, 2010, 5:51 pmShelbyC says:
DB gives his position here. I’m not sure what Ilya’s position is though.
May 21, 2010, 5:54 pmAnti Federal Interventionist says:
So, do you believe that owners of private businesses should be allowed to exclude blacks, jews, mexicans, etc.?
Yes.
May 21, 2010, 5:58 pmThomas says:
“Not only that but every Republican voter should be made to answer that question and be put on record.”
I wonder what Martin Luther King, a Republican, would have answered?
May 21, 2010, 6:00 pmFausto says:
ShelbyC:
I tend to agree, but is there a point at which government involvement in the private discrimination rises to a level so as to justify a ban on it (e.g., issuance of business licenses (although in a true libertarian system perhaps such licenses wouldn’t be required), or provision of government services such as police protection?) Is there not a practical distinction between an informal gathering of Nazis in one’s living room, and a department store that refuses to allow Jews to enter?
May 21, 2010, 6:08 pmbee says:
ShelbyC: DB’s quotation does not answer the question I posed.
May 21, 2010, 6:11 pmChris Travers says:
In an ideal world, I don’t have a problem with some jerks running businesses in such a way.
The problem is not that there was some degree of segregation in restaurants but that there was systematic segregation in every element of life, designed to keep the niggers from getting uppity (using those words to underscore the intent). Given the systematic nature of that oppression, I think it’s fine for temporary encroachments to be made. However, I don’t think that unique history justifies such a law for perpetuity.
I guess the question is whether it’s a just use of federal power to keep a law around solely as a monument to its past success.
May 21, 2010, 6:15 pmPlugInMonster says:
What is the point of overturning Title II, unless it’s to allow closet racists to oppress minorities all over again?
May 21, 2010, 6:19 pmBored Lawyer says:
Rand Paul made an explicit comparison to First Amendment rights, such as free speech and assembly. Racists enjoy those rights as much as anyone else — they are allowed by the Govt. to express racist views openly, and even to assemble in public to express those views (the proverbial Nazis marching in Skokie). The fact that Nazis and Klansmen enjoy First Amendment protection does not mean we agree with their views, it simply means that freedoms are just that, freedoms, which can be used in ways that are both ugly and nice. The remedy is more free speech — racists are entitled to their views and even to express them, but they are not entitled to public approbation or to be shielded from public disapproval and scorn.
Same could easily apply to property rights. That Rand thinks a business owner has the right to discrminate does not mean he approves any more than he approves of racist views just because he thinks they are protected by the First Amendment. The businessman who discrminates is not insulated from public scorn — nothing stopping anyone who finds the discriminatory policy immoral from boycotting the store.
For that matter, if one reviews the Civil Rights Act, it is clear that, broadly speaking, it regulates what might be called commercial relations — employment, public accomodations, etc. It does not regulate non-commercially socializing, for example.
Suppose someone decided he or she did not wish to socialize (or date or intermarry) with some group — blacks, Jews, etc. That would be beyond the reach of the Civil Rights Act, and in my view rightly so. I do not want to government regulating who I socialize with, and would view such a law as an unbearable intrusion on liberty.
So the real question is why is property and commercial relationships treated differently from free expression and socializing?
May 21, 2010, 6:29 pmChris Travers says:
It would reduce chilling effect problems.
For example, see the problems that Sambo’s Restaurant went through and the lawsuits that they faced because folk though that their name was a racist slur against African Americans (but named after a Tamil Indian kid in an old children’s story).
Also I don’t think the act should be abruptly overturned unless we wait another hundred years. It would be better to phase it out and review the situation at each stage. That would be a good way to tell if problems are able to be managed by the market or not.
May 21, 2010, 6:30 pmShelbyC says:
I’m not sure, I think people’s approval or disapproval of state involvement in private discrimination channels their approval or disapproval of such discrimination. The supreme court came very close to finding it unconstitutional for the state to enforce trespassing laws against blacks eating at lunch counters against the owners wishes, but I doubt that anybody would bat an eye about the cops removing me from the ladies shower down at the gym.
People engange in private discrimination for all sorts of reasons, some we may approve of, others not. Most people (myself included) have no sympathy for racists who wish to eat among a crowd of their own race, but have no problem with women’s only gyms, for women who are uncomfortable exercising in front of men.
May 21, 2010, 6:36 pmRPT says:
Yes, the anticipatory exhaustion excuse is pretty funny, given that you can’t imagine McCain or Specter, both of whom are almost twice Paul’s age, bowing out so lamely.
May 21, 2010, 6:41 pmDilan Esper says:
State governments have enacted many oppressive and unconstitutional policies that harmed minorities. But the same can be said for the federal government. Libertarian writers have not come up with a foolproof way to maintain an optimal balance between federal and state power on these issues. Neither has anyone else.
Actually, liberals have. Which is to allow the federal government to bar discrimination against minorities. And it has opened huge sectors of the economy to the descendants of slaves that were closed before.
This is all reminiscent of the joke about the economist who isn’t impressed at the program that works in practice because he wants to know if it works in theory. The Civil Rights revolution has been a smashing success in terms of opening up doors to blacks. Rather than questioning its theoretical underpinnings, libertarians ought to admit that liberals had a point on this one (and in fact, some libertarians, like Brink Lindsay, have done so).
May 21, 2010, 6:47 pmAnthony says:
The problem with the government turning a blind eye to private discrimination is that it’s relatively easy for non-state actors to apply coercive power over the behavior of businesses (in part because, for pure economic reasons, the amount of power required is fairly small), and from a practical standpoint the easiest way to deal with that sort of coercion is to apply a modest amount of contrary power.
May 21, 2010, 6:48 pmkliendist says:
Bored – no offense, but rather than 5 or 6 paragraphs from you, I’d like to see a sentence from Mssrs. Bernstein and Somin.
It is a pretty simple question: Do you believe that an owner of a private restaurant should be legally permitted to turn away blacks, mexicans, jews, etc. because the owner doesn’t care for their race/religion/whatever?
May 21, 2010, 6:50 pmShelbyC says:
I’d rather see next week’s winning lottery numbers, but hey, we take what we can get. :-).
May 21, 2010, 6:54 pmMark Field says:
I agree with this, but every libertarian here vehemently defends federalism nonetheless.
This ignores Brink Lindsey’s well-considered point:
“I think Rand Paul is wrong about the Civil Rights Act,” libertarian Cato Institute scholar Brink Lindsey wrote in an e-mail. “As a general matter, people should be free to deal or not deal with others as they choose. And that means we discriminate against those we choose not to deal with. In marrying one person, we discriminate against all others. Businesses can discriminate against potential employees who don’t meet hiring qualifications, and they can discriminate against potential customers who don’t observe a dress code (no shirt, no shoes, no service). Rand Paul is appealing to the general principle of freedom of association, and that general principle is a good one.
“But it has exceptions. In particular, after three-plus centuries of slavery and another century of institutionalized, state-sponsored racism (which included state toleration of private racist violence), the exclusion of blacks from public accommodations wasn’t just a series of uncoordinated private decisions by individuals exercising their freedom of association. It was part and parcel of an overall social system of racial oppression,” Lindsey said.
May 21, 2010, 7:04 pmAllan Leedy says:
The mix of erudition and bloviating here on the subjects of libertarianism and federalism do little to mask or even distract from the ignorance, bigotry and general stupidity of this Paul fellow.
May 21, 2010, 7:05 pmAngus says:
This is one of the claims repeated over and over again on the internet, but it still doesn’t make it any more true, unless you are referring to Martin Luther King Senior, the less-famous father of MLK.
May 21, 2010, 7:14 pmSarcastro says:
[Hey now, I'll agree with Gregory, but I don't think any of us could stand for long once Rachel Maddow gets her velvet hammer going.
And Allan Leedy, lets not mix up naivete with bigotry. Paul will likely be the next Senator from KY after all.]
May 21, 2010, 7:15 pmBruce Hayden says:
And I see how much you have added to the discussion.
May 21, 2010, 7:16 pmBruce Hayden says:
Please. Go back and look at who voted for the CRA, and who didn’t. And then try making this request with a straight face.
May 21, 2010, 7:19 pmBruce Hayden says:
I have no reason to doubt that he does, and I suspect that the only reason that you don’t believe that is the stereotype you have of him and libertarians in general. And maybe this is one of the differences between libertarianism and federalism.
The place I draw the line is between government action and private action. Not between state and federal governments.
May 21, 2010, 7:23 pmShelbyC says:
Well, the unlawful suspension of habeas corpus prevented DC from being invaded. That doesn’t mean we should deny it to GWOT folks.
May 21, 2010, 7:27 pmMichael Ejercito says:
Yes, that is it.
It might be because having a particular job, good, or service, is not a right.
It is similar to the concept of opposing the government denying the Holocaust and opposing the government jailing or fining people for denying the Holocaust.
The ACLU stood with the bad guys in the issue of the Skokie March.
Were they Nazis? Did they want to finish the Holocaust?
Only if everyone is permitted to engage in that private, non-governmental discrimination.
Clearly, it would be a bad idea to permit only some people to engage in private, non-governmental discrimination.
And similarly, if you support repeal of anti-sodomy laws, you must support sodomy, right ?
How is it more misguided than permitting Holocaust denial or the Skokie march?
Only if other business owners can exclude them.
What could be more fair than permitting everyone
to discriminate?
Only if all restaurants get to do it.
One point would be if the government imposed significant barriers of entry.
Would not minorities get to oppress whites in retaliation?
Does the ACLU’s disapproval of thhe government’s attempt to shut down the Nazis’ march in Skokie channel their approval of National Socialist ideals?
May 21, 2010, 7:31 pmMichael Ejercito says:
So true.
People have a constitutional right to deny the Holocaust.
Does that mean it is okay for the state or federal government to officially deny the Holocaust?
May 21, 2010, 7:34 pmburger says:
“Please. Go back and look at who voted for the CRA, and who didn’t. And then try making this request with a straight face.”
Why don’t you go back and look at how party affiliation has changed over the last 40 years and then try to deny, with a straight face, that that in 2010 Republicans are much more likely than democrats to be racist assholes – Oh, I am sorry, I meant to say that they are much more likely to be concerned with “states rights” and “border security” and so forth.
Please, indeed.
May 21, 2010, 7:37 pmBruce Hayden says:
I would suggest that the idea of a public accommodation here was an artifact invented to get around the problem of government intervention into private affairs.
I don’t see any problem whatsoever with private discrimination. We all do it all the time. You presumably don’t have sex indiscriminately, nor do you give presents on holidays and birthdays to people indiscriminately. In short, you, and all of us, privately discriminate against people many times every day.
The issue is the level at which the government can legitimately interfere with that private right of discrimination. And, it appears that you would accept intervention at some level of public accommodations, whatever that means at some given instance in time.
I am not sure where I would draw the line, but it is highly likely that I would draw it at a much higher level than most here. Possibly at a level where there is more than a token or de minimis impact on interstate commerce. That would mean, for example, yes for buses, trains, and airlines, but no for your neighborhood diner. Probably yes for most motels, because they typically cater to the interstate traveler.
That is, btw, one of my problems with parts of the CRA of 1964, the stretching of the Commerce Clause to justify it Constitutionally. Of course, things have gotten more egregious in this area since then.
May 21, 2010, 7:39 pmRoger the Shrubber says:
In the case of consenting adults, hell yes.
May 21, 2010, 7:42 pmpublic_defender says:
As a property rights advocate, you you argue that the police should enforce the property rights of racists who wish to exclude blacks from their store? It seems that the libertarian belief that government should do little more than raise an army and protect property would have required (not just permitted) the police to use force to kick the black kids out of the Woolworth lunch counter.
May 21, 2010, 7:50 pmRPT says:
Actually, it’s the velvet softball bat. When you go whining to Laura Ingraham that you’ve been mistreated by the mean Dr. Maddow, who blew through commercial breaks to allow you to finish hanging yourself, you’re in deep trouble with the rest of the “tough guys”.
May 21, 2010, 7:55 pmBruce Hayden says:
I can see that you think this a winning argument. But, I don’t buy it. Five and six generations ago, my ancestors voted for Lincoln and helped smuggle slaves to Canada. If you read their writings about government, you would quickly see that they would side with the libertarians over the statists and liberals any day.
You are basing your position here on stereotypes fed you by the liberal media. I think it silly to think that one is a racist because one worries about the greatly increasing level of federal intervention in our lives.
And your point about border security is also off-base. I don’t see worrying about the financial straights that our states are in because of lax border enforcement, and the spilling over of the violence from Mexico into our border states to be racist. I go to Phoenix a lot, as my firm is based there and my girlfriend lives there. There are Americans living on our southern border who are now living under siege. But you want us to believe that their worry about being killed by the heavily armed coyotes and drug smugglers crossing their land is somehow racist.
May 21, 2010, 7:56 pmMichael Ejercito says:
Border security is racist?
Not surprising that an anti-American would write that.
Whose lunch counter was it?
May 21, 2010, 8:05 pmBruce Hayden says:
I think that you are suggesting that we are back 100 years ago when hired guards used machine guns to quell union strikes.
But your illustration of Woolworth is illustrative. The company had apparently voluntarily desegregated its lunch counters prior to the 1964 CRA. It was just good business. The tide had turned. And, blatantly discriminating and segregating on the basis of race as was done up into the 1960s would be very bad business today. Let me suggest that there is not a poster, or even a reader, here who would do business with a business that openly discriminated or segregated based on the basis of race, ethnic background, or national origin. Sex, maybe a little bit. But not race, ethnic background, or national origin (assuming that they are here legally).
May 21, 2010, 8:06 pmRPT says:
Paul’s comments today that the president should never criticize poor BP indicates that he is ready for an intimate relationship with foreign oil companies. This guy is going to be good for a new revelation every day.
May 21, 2010, 8:07 pmMark Field says:
Woolworths had stores and lunch counters all over the North, making it uniquely vulnerable to countervailing (pun intended) pressure. That wasn’t the case for local restaurants, so you can’t use Woolworths as an example.
Maybe. To the extent that what you say is true, a good part of the reason is precisely the CRA and related acts. We as a society have become accustomed to equal treatment, and therefore expect it, because the law demands it.
May 21, 2010, 8:13 pmConstantin says:
Yeah, I’m having a hard time believing “Hey, it ended up doing good stuff” would be accepted around here as a defense of the constitutionality of a bunch of other laws.
I’d also take a pass on being lectured about racial discrimination by private actors until the government itself stops discriminating in such a manner. If the guy who runs McDonald’s is a bigot I can have a Whopper instead. Different story when the person applying different rules to different people based on their skin color is, say, the attorney general.
May 21, 2010, 8:18 pmSarcastro says:
[While I doubt he'll get much street cred with the right for sunning away from a girl, gotta disagree with you about Maddow's interview style. Most interviewers would have let Paul prevaricate and move on. Maddow kept at it and kept at it. No mercy for commercial either!
Make no mistake, she's a caution.
Note that I generally skip Maddow's interviews with newsmakers cause they are either uncomfortable (conservatives) or uninteresting (liberals.) I do like reading about them later, though.]
May 21, 2010, 8:20 pmMichael Ejercito says:
And the CRA would not have been passed without broad public support. It would not have passed if there was a national pro-segregation consensus.
May 21, 2010, 8:23 pmRPT says:
Sarcastro:
The softball bat metaphor does not equate to a slow pitch softball pitch. Fast pitch softball is another story altogether. Balls come off aluminum softball bats pretty quickly and pack a very hard punch. All puns aside, Maddow is probably the toughest interviewer out there these days. It is to Paul’s credit that he dared go there. Most conservatives would never do so.
This reminds me that Mark Field and I probably played several softball games together during the summer of 1981. I don’t remember whether future USDC Judge Margaret Morrow played or not.
May 21, 2010, 8:28 pmJR says:
Sorry, I read this and all I can think is YMCA swimming pools and the Pickrick Restaurant. If that’s the libertarian ideal for American society, then there’s a damn fine reason there are none of you guys in office.
May 21, 2010, 8:41 pmMBSS says:
bernstein was trying to conflate property rights and human rights.
i’m not surprised we are not seeing any blunt answers to the obvious question from the learned professors around here.
you can hide behind economic theory or whatever else suits you folks, but it’s obvious that the same ugly impulses and notions that reside in the right’s base also exist within its intellectual incubators.
bunch of william f. buckley high minded racism.
May 21, 2010, 8:48 pmSarcastro says:
[Well, Terry Gross if she gets a notion may be tougher. And Jon Stewart if he's on your show.
Colbert is tricky and terrifying, but no one cares what you say.
My favorite is probably Scott Simon, cause he just lets them ramble, which I enjoy.]
May 21, 2010, 8:48 pmLester Livio says:
As a conservative, republican member of the Tea Party, I would rather that the democrat won this seat. The election of Rand Paul to the U.S. Senate will speak volumes about the people of Kentucky.
May 21, 2010, 9:31 pmAnonsters says:
Well, they did elect Crazy Jim Bunning. I think we know all we need to at this point.
May 21, 2010, 9:33 pmAllan Leedy says:
Indeed. We’ll leave that blending to him.
May 21, 2010, 9:56 pmAllan Walstad says:
According to Brink Lindsey,
It was enforced by government. Take away the government coercion and the bottom falls out of the oppression. Even back in the apartheid days of South Africa, as economists William Hutt and Thomas Sowell and others pointed out long, long ago, the purpose of the government-imposed minimum wage laws was to prevent employers from hiring blacks at lower wages instead of whites at higher wages. The notion, too, that mere private discrimination would leave minorities with no place to stay or shop or eat is complete nonsense; again, as Sowell has pointed out over and over again, around the world and down through history we have numerous examples of minorities subject to official discrimination and enjoying higher affluence than the discriminators.
Even assuming that outlawing private discrimination might have been necessary as a remedy, to get past the era of Jim Crow, why should such blatant infringement of individual liberty be allowed today? If the lunch counter or grocery store or apartment is your property, then you rightly decide who gets to be there, and who doesn’t. Lindsey, as well as a couple of commenters here, uses the weasel term “public accommodations.” Look, if it’s your property, then it is open to the public only if and to the extent and under the conditions that you choose.
No doubt, ACLU attorneys held their noses while defending the free speech rights of bigots. But, we see already how defense of individual liberty and property rights will play out for Rand Paul: the slimy insinuations that perhaps he doesn’t mind the fragrance of racism at all, the attempt to run him out of town for daring challenge part of the politically correct consensus. And then there are those jeers about his being “not ready for prime time.” What does “ready-for-prime-time” mean in politics? A well-practiced talent for lying convincingly? A fake smile? A deft deployment of focus-group-tested sound bites? Gimme some real people for a change.
Libertarianism has nothing to do directly with federal versus state powers (“states rights” being a risible vacuity–governments have power, individual people have rights). The presumption is that individuals have a right to liberty that the feds, the states, and the lower levels of government should all respect. But–with 50 states, at least there is some real opportunity to escape the more oppressive ones. And if you have a Constitution that limits government–any government–to within certain bounds of action, the first thing is to make sure it stays within its bounds.
May 21, 2010, 10:12 pmAllan Walstad says:
MBSS:
Property rights are human rights. Indeed, with the concept of self-ownership, a case can be made for regarding essentially all human rights as property rights.
May 21, 2010, 10:18 pmAllan Walstad says:
JR:
And the limits to your imagination are relevant…how, exactly?
May 21, 2010, 10:21 pmMBSS says:
pure sophistry and wordplay.
in fact it seems to me that making property rights ascendant is a symptom of the type of soul sickness where one places more importance on things as opposed to people. this strain of sickness can be found among libertarians, and your average, everyday sociopath republican.
and property rights are not equivalent to free speech, as dr. paul seems to think.
property rights uber alles!!
this is all just a game played in order to add a thin patina of respectability to those that hold repugnant and regressive views. it’s similar to the states’ rights dog whistle.
“it’s not that i’m for or against eating babies, it’s just that i believe that we should let the states decide.”
“it’s not that i’m racist, sexist, or homophobic, i just think we need to get the boot of big gubmint of the back or hardworking, real americans, and let them decide how to govern their own private businesses.”
May 21, 2010, 10:32 pmJoseph Slater says:
What does “ready-for-prime-time” mean in politics?
How’s about not doing the following in about 24 hours?
(1) Saying that you would have marched with Martin Luther King but at least strongly implying that you think a central goal of King and the civil rights movement (the CRA) was bad policy; then
(2) More-or-less retracting that implication when confronted with the fact it was bad politics; then
(3) saying that Obama criticisizing BP was “un-American”; then
(4) Cancelling an interview on “Meet the Press” on Friday claiming “fatigue.”
May 21, 2010, 10:35 pmgaper says:
Bruce Hayden says: “But you want us to believe that their worry about being killed by the heavily armed coyotes and drug smugglers crossing their land is somehow racist.”
Given the fact that an American has about as much chance of being killed by “heavily armed coyotes and drug smugglers” as s/he has of being struck by lightning, I suspect that perhaps your friends are worried about something else.
Just curious here, out of the four or five hundred murders each year in Arizona, how many do you think are committed by those heavily armed coyotes and drug smugglers?
May 21, 2010, 10:35 pmJoseph Slater says:
I should have concluded “on Friday, cancelling an interview scheduled for a couple of days later, claiming ‘fatigue.’”
May 21, 2010, 10:37 pmDilan Esper says:
Allan:
The world that you posit, one where there is full reign to privately discriminate and no ability to discriminate in public institutions, does not exist. When you deprive blacks of economic opportunities, you reduce their incomes. This isn’t the government I am talking about. Here in Los Angeles, where I lived, blacks had a very hard time getting jobs outside of a few industries, and they were very, very poor. They weren’t hired into management, they weren’t hired into customer service, they weren’t hired as doctors and lawyers at the most prestigious hospitals and law firms, etc. It was hard for them to even get athletic scholarships. Many collegiate football and basketball teams were all-white in the 1950′s, or had one or two black players.
Blacks could find steady work only working in the impoverished inner cities for less money, or in a few traditionally black positions, such as bellhops, sleeping car porters, domestic servants, doormen, busboys, and the like.
This was not mandated by government. Nobody put a gun up against Bob Cobb’s head and told him not to hire any black waiters at the Brown Derby. It was custom, tradition, and consumer preference.
The result of such a society is that blacks have little economic power, which translates, under libertarian campaign finance laws you favor, into little political power. Which meant that blacks had little recourse against official acts of discrimination or private acts of violence, either. Which made things much, much worse. Indeed, there was no solution to this problem except to interfere with your precious free market and tell employers and operators of public accomodations and owners of rental housing that they couldn’t hire or refuse to do business with blacks.
In addition, it’s actually even worse for libertarians. As Amanda Marcotte points out, libertarians want to shrink the public sector. In other words, the very portion of society that they concede SHOULD be bound by non-discrimination rules, while the portion of society that they believe should NOT be bound by non-discrimination rules, they want to grow.
What’s a black person supposed to think about people who want to create a larger and larger sector of society where discrimination is permissible against blacks?
Bottom line, you guys have a conclusion you want to reach (there can never be a federal intervention into the free market), civil rights is inconvenient for you (because it clearly WORKED), so you guys are making up a fantasy story about how the civil rights laws really didn’t do what it is obvious that they did, and the free market could have really solved everything if given the chance. Well it couldn’t have, and Brink Lindsay, unlike you, is a libertarian who doesn’t trade in fantasy.
May 21, 2010, 10:37 pmMark Field says:
Heh. We did indeed. I don’t think Margaret ever played, though. Maybe once; does that make her gay?
May 21, 2010, 10:44 pmMichael Ejercito says:
How so?
How does a diner manager’s ability to exclude black people from the diner translate to the government forbidding black people from living in certain areas?
Were people free to not hire any white waiters?
Or were there laws prohibiting people from treating white people the way black people were treated?
They had guns to deter private acts of violence.
That depends if that sector of society is also free to discriminate against whites.
If everyone is equally free to discriminate against anyone else on the basis of race, how is that racist?
Property rights is one of the human rights.
It should be noted that Thomas Sowell grew up in Jim Crow America.
And he even pointed out that some white people in South Africa were willing to hire black people in violation of apartheid laws.
And what makes you think private racial discrimination was a problem that had to be solved, as long as everyone had the equal right to discriminate against anyone else on the basis of race?
If white people are free top discriminate against black people and black people are free to discriminate against white people, then where is the inequality?
May 21, 2010, 10:53 pmwolfefan says:
Hi Sarcastro –
Just a note that I am considering adding “State of nature for the win!!” to my e-mail signature. No one would get it, but I love it. Thanks for your good work – it’s nice to see you back more often.
May 21, 2010, 10:55 pmJoseph Slater says:
If white people are free top discriminate against black people and black people are free to discriminate against white people, then where is the inequality?
Did you not get the point of folks in another thread on this point quoting you the line about “the law in all its majesty, prevents both the rich and poor from sleeping under bridges”?
Also, are you disappointed with Paul for “walking back” his skepticism of the 1964 CRA?
May 21, 2010, 11:02 pmrpt says:
No; her deceased husband Paul Boland was my favorite professor at UCLA.
May 21, 2010, 11:32 pmStephen Lathrop says:
If that reads history correctly, perhaps I misunderstand the causes of the Civil War. Delegates from the antebellum South inflicted a series of humiliations on anti-slavery northerners in Congress. But I thought the North showed sufficient power to block the South in its principal goal—to clear the way for expansion of slavery into new territory, and thus to make slave power permanently dominant in Congress.
It seems to me that there was a stalemate for a time, featuring compromises where the South repeatedly forced reluctant Northerners to acknowledge legitimacy for slave power, and Northerners repeatedly frustrated Southern ambitions to expand it. Then, as the nation showed signs of growth to come, with every prospect that new states would come into the union with anti-slavery constitutions, the South saw the handwriting on the wall and seceded.
Perhaps most relevant to this discussion, more or less the entire time the issue was contested, the states’ rights notion was a constant resort of the pro-slavery faction. The sharp antebellum rise, and later decline, of the states’ rights position found remarkable symbolic expression in the temporary elimination of the motto E PLURIBUS UNUM from the nation’s coinage, beginning in the 1830s.
That seemingly minor detail shows, I think, that people at the time fully understood federal power as a threat to slavery, and states’ rights as a defensive bulwark in favor of it. When the antebellum South reached its peak of national power, it wasn’t thinking in terms of exercising national power. It was thinking of dismantling national power. That’s why they took the principal motto of federal authority off the coinage when they had sufficient influence to do so. When the South lost the war, the motto was restored, in 1866.
May 21, 2010, 11:43 pmMark Field says:
Elena Kagan will be so relieved.
May 22, 2010, 12:00 amDilan Esper says:
Michael:
You are the living embodiment of Anatole France’s ridicule. Seriously, if you don’t understand why it isn’t acceptable to argue “well, blacks could discriminate against whites too”, I really can’t help you. Seriously, for whatever reason, some people choose to pretend to not see things right in front of them.
I cannot have discussions with people who are arguing in complete bad faith.
It should be noted that Thomas Sowell grew up in Jim Crow America.
And let me guess, some of your best friends are black?
Seriously, just because one black scholar argues some really stupid and fucked up things doesn’t make them less stupid or fucked up, and certainly doesn’t make them any less racist.
May 22, 2010, 12:00 amrpt says:
DE:
ME’s problem could be simple and utter cluelessness.
May 22, 2010, 12:03 amAllan Walstad says:
Dilan, it is sufficient to point out once again that around the world and down through history there have been minority groups who were discriminated against and succeeded in becoming as affluent or moreso than the people discriminating against them. One example was black immigrants from the West Indies to the US, who would start out poorer than other American blacks, but by the second generation were successful professionals. You really need to become a little better informed about how freedom works for people. Thomas Sowell is a good author to read. You might also learn from Sowell or, say, Walter Williams or Charles Murray, about how government programs ostensibly aimed at helping poor people can actually hold them back, by giving them poor incentives or, in the case of minimum age laws, cut off the bottom rungs of the upward mobility ladder and thereby trap them in lives of dependency.
We want to shrink the coercion and increase the liberty. It never ceases to amaze me how much knee-jerk resistance there is to the idea of individuals pursuing their goals and purposes in non-coercive interaction.
May 22, 2010, 12:08 amSmallholder says:
Stephen Lathrop,
Both sides in the slavery controversy used states rights when it advanced their cause. States’ rights was always a tactic, not a principal. For instance, the South was all for federal power to enforce the strenghtened 1850 Fugitive Slave Act and wanted national power to squelch Northern expressions of states’ rights like personal liberty laws. The South positively rejoiced at Dred Scott, which expanded federal protection to slavery everywhere.
If you read South Carolina’s Ordinance of Secession, all the references to states’ rights are complaints about northern abuses of the concept.
People often conflate the idea of states’ rights vis a vis the national government with secession. The South did justify secession on the grounds that the states created the Constitution and the power to create is the power to destroy. This justification for secession in defense of slavery was a modification from the 1776 Declaration of Independence which justified secession on Lockean “consent of the governed” ideals. The philosophical support for slavery’s post-Whitney intensification backed away from the idea of natural rights. For examples of this, see Fitzhugh’s Cannibals All, and more importantly, CSA Vice President Stephens’ “Cornerstone Speech” in which he explicitly rejects the idea that all men are created equal.
May 22, 2010, 12:09 amAllan Walstad says:
Dilan, you can’t seem to have discussions with people who actually apply fact and reason to an issue. So you resort to insult.
May 22, 2010, 12:24 amDilan Esper says:
And here’s David Frum, a conservative, getting it right:
http://www.frumforum.com/on-the-civil-rights-act
Comment From Daniel:
Isn’t the 1964 Civil Right’s Act’s constitutionality at least questionable? I mean, however good the intention of the bill, doesn’t a racist black Muslim store owner have the right to exclude Jews like me from his store?
David Frum:
Disclaimer: I was trained as and think like a lawyer.
So I can’t process the thought that something can be described as “constitutionally questionable” when it has been unquestioned by every legal institution in the country for almost half a century.
Maybe here’s the real problem with your question. When libertarian minded people pose these hypotheticals, they usually couch them – as you did – in the form of some act of boycott by a very marginal member of society against a generally well accepted group in society. Racist black Muslim store owners may exist here and there, but they are hardly going to interfere much with your shopping however broadly we extend their rights.
But the authors of the 1964 act did not confront this classroom hypothetical but a century of caste-like governmental, social and economic exclusion of an impoverished minority by an all-pervasive majority, reinforced by mob violence and individual terrorism.
So my counter-factual to you would be: what if Wal-Mart and Target and every other US big box store together agreed that they would not sell to Jews? And if dissenting Wal-Mart managers were murdered by their colleagues – or rather if so many had been murdered 90 years ago that none would break the boycott even if they wished, which of course none did, because the Jews had been so systematically and deliberately impoverished that they were barely worth selling to anyway?
Rather a different social problem, no?
May 22, 2010, 12:26 amDilan Esper says:
Dilan, you can’t seem to have discussions with people who actually apply fact and reason to an issue. So you resort to insult.
Alan, let me make one thing very clear. I am quite well convinced that I am right about civil rights. But not only that, but I have a couple of centuries or more of moral philosophers, some of the greatest minds the world has ever produced, plus great politicians, great lawyers, great judges, and a lot of other great thinkers on my side. So it isn’t as though my reasoning on this issue doesn’t “apply fact and reason” to it.
My desire not to have arguments about this issue with people who refuse to acknowledge obvious truths is of the same piece with my refusal to debate flat-earthers, or people who believe the Civil War had nothing to do with slavery, or Holocaust deniers. There are some people in this world who simply contribute nothing to the public discourse because they have no desire to argue in good faith and to acknowledge any sort of a consensus. They are mental masturbators, nothing more, and their views, thankfully, have little impact on policy because policymakers, including those who might be ideologically sympathetic, know better than to listen to them.
There is a reason one only hears the arguments that you and Michael are making within the confines of a lunatic fringe of libertarianism, and it isn’t because you guys know the truth that the rest of us are just too stupid to understand, because we lack the facilities to apply fact and reason to the issue.
As far as I am concerned, Martin Luther King, Jr. applied fact and reason to the issue when he specifically called out the voices who were urging his movement to wait, be patient, and let the market solve things, and when he specifically demanded justice for his people.
Extremism in the defense of liberty may be no vice, but extremism in the denial of truth and the ignorance of injustice and in the avoidance of political realities certainly is one, and it is a vice that threw all of its horrible effects onto another group of people, so it was and is a vice that is really easily indulged in. How convenient for you guys to advocate a theory that, if wrong, would screw over black people, not yourselves.
That’s all that needs to be said about this.
May 22, 2010, 12:37 amMark F. says:
So my counter-factual to you would be: what if Wal-Mart and Target and every other US big box store together agreed that they would not sell to Jews? And if dissenting Wal-Mart managers were murdered by their colleagues – or rather if so many had been murdered 90 years ago that none would break the boycott even if they wished, which of course none did, because the Jews had been so systematically and deliberately impoverished that they were barely worth selling to anyway?
And what if fairies delivered gold to my door every morning? And what if we all could fly to the moon like Superman?
May 22, 2010, 1:03 amrpt says:
The real world verdict on this debate is that Rand Paul has now become the 3d person in 62 years to cancel an appearance on Meet the Press, and has been told by the KY GOP to go into hiding so as to not further disclose that he opposes the minimum wage and many other accepted aspects of modern life and society. Libertarianism appears in partial public view for two or three days and beats a quick retreat because it is afraid to admit its own beliefs outside of the academy. Maybe things will be better next week—if Paul recants what he really believes–and maybe he will win—or maybe he will be the end of the line. Any libertarians here care to opine on this?
May 22, 2010, 1:19 amRicardo says:
Martin Luther King Jr. You mean the guy whose inner-circle consisted mostly of socialists, labor organizers, war protesters and welfare-state advocates?
May 22, 2010, 1:23 amRicardo says:
The CRA passed because there was an anti-segregation consensus outside the South, an overwhelming pro-segregation consensus in the South and it just so happens that non-Southern Senators formed the super-majority needed to ram the CRA through the Senate.
May 22, 2010, 1:28 amrickyricardo says:
I ain’t callin’ him a nigger or anything.
May 22, 2010, 1:30 amJR says:
Because the inability of the posters here to address those concerns shows the unworkability of this brand of libertarianism in a pluralist society. Unless your argument is that “Palmer v. Thompson was right and ought to be upheld,” in which case: WTF?!!
May 22, 2010, 1:36 amRicardo says:
What kind of ignorant, racist garbage is this?
May 22, 2010, 1:38 amrpt says:
Well, Rand certainly has some ‘splainin’ to do, doesn’t he.
May 22, 2010, 1:45 amRicardo says:
John Lewis, as a representative of the Student Nonviolence Coordinating Committee, was invited to speak at the March on Washington for Jobs and Freedom which had been organized by head of the African-American labor union Brotherhood of Sleeping Car Porters A. Philip Randolph and long-time socialist (and former Communist) civil rights activist Bayard Rustin. SNCC, by the way, had as its first non-student advisers the socialist Ella Baker (who helped King start up the Southern Christian Leadership Conference) and Howard Zinn, who I think most people are familiar with.
Anyway, here are some sentiments from Lewis’ speech, who is now a Democratic Congressman from Georgia:
May 22, 2010, 2:08 amAndrew J. Lazarus says:
It’s almost embarrassing that David Frum has to school the jejune-libertarians, isn’t it?
There isn’t any “fact and reason” in the jejune-libertarian argument. It’s a presentation of a self-contained, self-congratulatory axiomatic system that has less to do with historical reality than Marxism or just about any other -ism, favored by boys who never grew up. The idea that returning to segregation is “increasing the liberty” is both funny and sick, and could only come from someone who didn’t expect—no, make that cannot even imagine—to be born poor and black into an economically marginal family living under Jim Crow and two generations removed from slavery.
You really can’t make this up. One thread back I already compared this to Anatole France and the rich and the poor both prohibited from living under the bridges, and Ejercito literally didn’t see that France is being snarky. This is some sort of macro-Asperger’s inability to see the facial expression of an entire society. Hint, Michael: after three centuries of one-sided oppression—granted, contrary to libertarian doctrines—there is just no such thing as an equal ability for whites and blacks to discriminate against each other. (Even Richard Epstein and David Bernstein figured this out.) Now, that’s historically contingent: if we had a restaurant that decided to discriminate against left-handers, that wouldn’t be so much of a problem, but history happened, and the consequences of that history, such as the almost complete lack of education and capital available to black entrepreneurs under Jim Crow make the a priori axiomatic theories of jejune-libertarianism totally irrelevant. While real life has sex, jejune-libertarianism masturbates.
[Just to carry things over from the previous thread, what Sowell et. al. fail to explain is that segregation existed in services, trades, and jurisdictions beyond where it was required by law. As an example, there do not appear to have been any laws prohibiting blacks from trying on or returning clothes, but that was standard practice in Southern department stores—one which, I note, imposed an economic cost. Jejune-libertarianism is bereft of any explanation for this attested fact, beyond their discredited theory that everything bad must be traceable to government somehow.]
May 22, 2010, 3:20 amJ. Aldridge says:
Libertarian’s may claim they support decentralization of government, but they can’t hid from the fact they approve of an all powerful federal judiciary that can control every day life and one that can amend the constitution and its division of powers with 5 simple votes.
May 22, 2010, 4:19 amShelbyC says:
Hey, keep in mind that the conservative position is the same as the liberal position on this. You’re clearly not used to agreeing with consevatives :-).
May 22, 2010, 5:41 ampublic_defender says:
I’m glad Woolworth’s beat the 1964 Civil Rights Act to the punch, but many. many places did not.
The key point remains–government had to pick sides. When a racist business owner called the police, government had to use its power either to enforce racist “property rights” or to protect racial equality under the law. There was no option to stay out of the way and let citizens sort it out on their own.
May 22, 2010, 6:06 amDavid Bernstein says:
The mystery, dear Dilan, is if a group is completely despised by the majority, and has little political or economic power, where is the political support for “tell[ing] employers and operators of public accommodations and owners of rental housing that they couldn’t hire or refuse to do business with blacks” going to come from? Far more likely, the government is going to enact policies to reinforce societal racism, as it did obviously with Jim Crow in the South, but more subtly (prevailing wage laws, zoning rules, and the like) in the North. In a society that is truly saturated with hatred for a minority group, appealing to the political forces to mediate race relations will only make things worse.
It’s only when hatred of the minority group begins to decline enough to allow that group and its allies to exercise political power that the government is actually going to even possibly help. In a federalist system, the national government could, as it did in the U.S., crack down on local governments where sentiment is more racist. Or, the reverse could happen under different historical circumstances, as when the U.S. government enforced the fugitive slave laws against unwilling northern governments. (Or you can find examples from 1930s American in my book, Only One Place of Redress.)
If the U.S. is too narrow for you, you can look up Poland in the 1930s for an example, and then tell me whether having a libertarian government in Poland at the time would have been better or worse for the Jews. Sure, it would have been great for the Jews to have a government that would have bravely countered the public’s anti-Semitism and passed various laws guaranteeing their rights. Instead, the government did precisely the opposite, as one would expect.
So if you want to argue that in the particular historical circumstances of 1960s America, the libertarian position was harmful to African Americans because there happened to be national support for civil rights legislation against recalcitrant local majorities, that’s perfectly reasonable. If you want to argue, however, that the libertarian position is inherently harmful to minorities, because somehow the government is going to step in and help oppressed minority groups even when popular opinion is against them, I would counter that it’s unreasonable in a democracy to expect the government to do so, and, indeed, when racism is as bad as it was in pre-1950s America, the government will, in general, propound policies that exarcerbate societal racism, not mitigate it.
In short, the government is only going to step in on behalf of despised minorities when they are not so despised anymore. Under those circumstances, the government can help accelerate positive social trends. OTOH, when despised minorities are becoming even more despised, the government can and likely will accelerate negative social trends. But the government is not some magic entity that’s going to swoop down into 1930s Los Angeles, or 1930s Poland, or whatever, and, completely in opposition to overwhelming majority opinion, pass legislation helping minority groups overcome private sector discrimination. The BEST you can hope for in such circumstances is that the government has a strong enough constitutional tradition, belief in the rule of law, and liberal/libertarian principle, that it will protect the minority group from violence, and try to self-consciously limit its own discriminatory actions. But even that is hardly assured.
May 22, 2010, 8:43 amDesiderius says:
“Libertarianism… is afraid to admit its own beliefs outside of the academy”
If so, it would not be the first.
So does abuse beget abuse.
May 22, 2010, 9:52 amStephen Lathrop says:
Bernstein at 8:43 am makes an elegantly logical case. Wrong as a matter of history, with pernicious tendencies, but logical. What happened, in fact, in all his examples, the South, Los Angeles, even Poland eventually, is that governments stepped in to fix the problems. Of course it took long times frames, and wars in the U.S. and Poland, to get that done, but that is because the opposition wanted it that way.
Bernstein seems to think if governments don’t mobilize in short time frames to counter problems stretching over long time frames, that means governments don’t act. History shows the opposite, at least in the cases of his examples. A more accurate understanding seems to be that long-standing problems bring progressive opposition, and ultimately corrective action by democratic governments structured to feel the growing pressure.
Bernstein also seems to miss that governments with more resources can step in to counter abuses of those more narrowly based. That point wasn’t lost on southern racists of course, who practically wore out the states’ rights drum the libertarians now like to beat themselves.
Plus which, taking a property rights position in favor of racism is never going to help alleviate racism. Racism is a matter of action and organization, not logic and sentiment. Libertarians apparently follow Ayan Rand in arguing the contrary, but she was wrong.
If your property rights idealism furthers invidious treatment of blacks, the fact that you don’t hate blacks may earn you points in heaven, but here on earth you are a racist. Do you think the victims of racial discrimination will care how logical and unmalicious were your motives for setting up an objectively racist regime?
Whatever governmental oppression Bernstein sees in his tunnel-vision examples, adding government sanctioned property rights racism to the view is not going to improve it. If the integrity of libertarianism depends on pretending otherwise, then what does that say about libertarianism?
May 22, 2010, 10:06 amEli Rabett says:
David: International opprobrium. See South Africa, see the effect of abolitionists in Britain and elsewhere pre-civil war on US attitudes
May 22, 2010, 10:11 amDavid Bernstein says:
Stephen Lathrop, I don’t know why you think otherwise, but you actually provided no evidence that anything that I said in my comment was incorrect.
As for Poland–a side issue, but we might as well get this right–the various problems Poland had with minority groups were not solved through “Progressive” actions, but by Poland’s development into a virtually ethnically homogenous state, via border changes that substantially reduced the non-Polish population, the expulsion of the German population after WWII, the Holocaust, and subsequent anti-Jewish purges that drove out the rest of the Jewish population. I’m not an expert on this, but it seems that other Eastern European democracies with large minority populations have a very mixed record nowadays as to whether their governments serve as protectors or oppressors of minority populations.
May 22, 2010, 10:18 amMark Field says:
This type of argumentation reinforces the point made above that libertarians argue using logic but not facts. The truth is, people are much more complicated than you imagine. They do contradictory things all the time; often they know that they’re wrong even while they’re doing it.
There are lots of historical examples running counter to your claim. The 15th A was passed when almost every state in the Union banned blacks from voting. Many states ratified the 14th A despite having on their books laws which obviously violated it. Even in the ante-bellum South, slaves (non-persons) could get hearings in suits for freedom and other issues.
May 22, 2010, 10:22 amStephen Lathrop says:
Not ‘Progressive,” like the Progressive party, progressive like building continuously.
May 22, 2010, 10:30 amMark Field says:
To add to my point above, what democracy is very good at doing is making joint commitments. It’s sometimes true that people do something they know is wrong (or fail to do something they know is right) because they’re worried that others will think less of them or exploit their behavior. Passing a law like Title II is a way of guaranteeing that everybody has committed to a practice that people know in their hearts is right.
May 22, 2010, 11:41 amwanderer says:
Have Bernstein or Somin answered the question yet about whether or not they believe it should be legal for a private restaurant owner to refuse to serve black folks?
I wonder why they just haven’t been able to find the time to respond?
May 22, 2010, 11:52 amLester Livio says:
I presume you feel the same about polygamy laws. After all polygamy involves consenting adults right?
May 22, 2010, 11:54 amShelbyC says:
“stepped in”? When exactly were they “out”? What they did was cause a big fat problem, and then when they changed their minds and took the opposite course, people want to say, Oh thank god. Government to the rescue.
May 22, 2010, 11:58 amShelbyC says:
It sounds like you’re arguing that South Africa and the antebellum South would not have been better off with more libertarian policies (govt treating everybody equally but allowing private discrimination) because international opprobrium eventually brought them around? I think your examples make the opposite case that you want to make.
May 22, 2010, 12:06 pmLester Livio says:
Very well said. A libertarian out of the academy is like a fish out of water! In Rand Paul, libertarianism has had a violent clash with reality! Paul is like a beached, gasping, whale whose lungs are not mature enough for the oxygen of reality!
May 22, 2010, 12:16 pmLaura(southernxyl) says:
Wanderer, I wonder why you haven’t found time to look at the article linked to in the first sentence of the OP. You can scroll down to four paragraphs from the end and look at David Bernstein’s expressed thoughts.
May 22, 2010, 12:20 pmuh_clem says:
(shakes magic eight ball)
Signs point to No
There you have it.
May 22, 2010, 12:21 pmAllan Leedy says:
There we have what? The answer to the question, or the answer to the question whether the question has been answered?
May 22, 2010, 12:56 pmMichael Ejercito says:
Why does not this same logic apply to the Skokie March?
The police at that time had to choose between racist “freedom of speech” or protecting racial equality.
I should add that most states in the North were not subtle at all about their treatment of black people. Some states, like Indiana and Illinois, were whites-only states. None of the states of the old Confederacy went that far. In 1860, only five states- Maine, New Hampshire, Vermont, Connecticut, and Rhode Island. Black people were obviously not allowed to vote in Indiana and Illinois. The California Constitution actually limited suffrage to white people (and certain Indian tribesmen authorized by the state’s legislature).
Different people had different reasons for supporting the 14th and 15th.
For some of them, it was about getting closer to true political and social equality regardless of race.
For others, it was simply a cynical political move to keep control of Congress.
Without support from the latter, those amendments would not have been ratified by 1870.
May 22, 2010, 1:27 pmChris Travers says:
Yes, but are you against the sale of Jonathan Swift’s famous advocacy of this topic?
If I run, say, a bookstore, and I sell a lot of books on the KKK, should public accommodation harassment lawsuits be a valid way to keep me from expressing my view?
The problem here is that Title II prevents a heck of a lot more than outright and blatant discrimination in public accommodations. Presumably it would also ban putting up a sign saying “I wish we didn’t have to serve N!#$$%^ here.”
May 22, 2010, 1:52 pmChris Travers says:
I would go further and say that the conflict is between freedom of association and equal access to facilities. On a simplistic level it should be a no-brainer to favor freedom of association on a Constitutional level. The problem, however, is that historically this was part of a systematic approach to deny blacks and others equal protection under the law. Consequently due to the unique history of this sort of discrimination in our society, I think it’s reasonable to suggest temporary and narrowly tailored abridgements of freedom of association are tolerable if they meet that compelling need.
However, there are two problems here:
1) Have things changed enough that the market will now take care of the problem? I like to think so but am not willing to bet the farm on it. (This is why I favor relaxing the rules a little bit and seeing what happens, then determining whether to relax them more.)
2) There are other groups who do not share the same history who feel that they too should be perfectly protected from private discrimination. In some places like California, this means one cannot discriminate against, say, Neo-Nazis, KKK members, and the like. I think that such unquestionably goes too far in abridging the freedom of association. Starting to scale back the protections a bit really should help send a message that favored-class-envy is not an option.
Furthermore, the current rules have unintended side effects which promote UNEQUAL treatment under the law. The basic problem here (which admittedly is far more visible in Europe) is that identifiable groups of people are not demographically equal, and in some cases, unprotected criteria are closely bound to protected criteria. So for example in a state where race might be a protected criteria but political affiliation is not, it may be easier to deny service at a restaurant to, say, members of the Libertarian Party, than to deny service to members of the Black Panther party, or members of the Aryan Nations (because in both cases race is closely tied to the political affiliation). This leads to unequal protections under the law. This is a fundamental problem which has no solution which is not incredibly invasive regarding individual freedom of association (i.e. the only solution is to protect every identifiable group equally REGARDLESS of the criteria of identification).
I think it’s worth recognizing that racism isn’t dead in this country, and that every major political party uses it to their advantage. But the question is whether market forces, left to themselves, would make the problem better or worse. I tend to think that that, assuming no government compulsion or popular campaigns of violence and organized crime, that the problem would be reduced today rather than increased.
I really think that the best way forward is to work to slowly replace antidiscrimination law with laws criminalizing any campaign of terror directed at any identifiable group.
May 22, 2010, 2:31 pmDavid Bernstein says:
Why has “Wanderer” been publishing the same question over and over under several different pseudonyms? Here’s what I tell commenters like you: I will answer any legal or policy question you want, if you are willing to pay my hourly consulting fee. I need a $2,000 retainer up front. You can send a check to my office.
Otherwise, I blog or comment about what I want to blog or comment about.
May 22, 2010, 2:33 pmPlugInMonster says:
Republicans are very defensive right now. They know their true racist KKK colors on on display now in front of ALL Americans. They thought they were gonna take back the Congress. Now in revulsion, the American people will solidify the Democrat majority.
May 22, 2010, 2:39 pmwanderer says:
Bernstein:
You’ve written that private discrimination should be legal, does that mean that a private restaurant owner should be allowed to refuse service to black people?
What about an admissions or tenure committee at a private university that receives no government funds – should it be legal for them to refuse to admit or hire a negro or a jew or a mexican?
And, yes, you are of course free to blog about whatever you want. Just like I am free to ask any questions I want. I’m sorry if these questions, or more specifically, your refusal to answer them makes you look like a cowardly pantload.
May 22, 2010, 3:20 pmMichael Ejercito says:
All Americans?
All Americans do not watch MSNBC.
And did the ACLU’s defense of the Nazis’ Skokie march prove their racist colors?
That depends on if equal access to facilities is a right.
Does private discrimination qualify as a violation of equal protection of laws?
May 22, 2010, 3:40 pmMichael Ejercito says:
Was it racist or anti-Jewish for the ACLU to support the right of neo-Nazis to march in Skokie?
May 22, 2010, 3:44 pmChris Travers says:
Not directly, which is why I phrased the conflict the way I did. The problem though wasn’t just the private discrimination, but the fact that you had both state and private enforcement mechanisms reinforcing it, so it became a part of a larger structure intended to deny equal protection of laws. This is why I am willing to say that the civil rights act was necessary in its day and why it helped fulfil the duty to provide this equal protection.
However, I don’t believe that equal access is a right by itself. I guess they think so in California where one cannot even discriminate against KKK members, so there is some who disagree.
I would have thought I was clear about my view.
May 22, 2010, 6:08 pmChris Travers says:
In case people don’t think there is a chilling effect issue, consider if the following could be a part of a public accommodations harassment claim:
A sign outside a pub reading:
May 22, 2010, 6:10 pmThe Clansman Scottish Pub
No Niggards Here!
(Please tip well)
Andrew J. Lazarus says:
The difference in these threads is between a proper subset of Libertarians who are making rules (and initial conditions!) for a MMRPG
and everybody else, who inform their legal analysis with history, e.g., slavery, the Civil War, the failure of Reconstruction and triumph of what even a Libertarian called the “white supremacist cartel”. While I wish the Young Libertarians success with the MMRPG, let’s not confuse it with Real Life.
May 22, 2010, 7:07 pmDilan Esper says:
In short, the government is only going to step in on behalf of despised minorities when they are not so despised anymore. Under those circumstances, the government can help accelerate positive social trends.
Professor Bernstein, you are viewing public opinion as a monolith and not taking into account the importance of going up to the federal level to impose the solution.
In a federalist, decentralized system, it is perfectly possible for (1) a lot of people to have a low intensity preference in favor of equal rights for minorities, (2) a few people who have a high intensity preference for that to not have enough political power to get it enacted, and (3) a minority with a high intensity preference against equal rights for minorities to use a combination of violence, political power, money, and cultural influence to enact their preferences.
Professor Bernstein, you are a really brilliant man– far smarter than I am (and I am not joking about this– your accomplishments in your field dwarf mine) and yet you really have a blind spot to exactly why your political theory doesn’t work in this situation.
May 22, 2010, 9:26 pmDavid Bernstein says:
Actually, I wrote, “In a federalist system, the national government could, as it did in the U.S., crack down on local governments where sentiment is more racist.”
May 22, 2010, 10:06 pmuh_clem says:
Perhaps because you steadfastly refuse to answer it? Occam’s razor and all that.
I think you may be jumping to a conclusion about multiple pseudonyms – it’s not just one person who is intrigued why you and Prof Solmin refuse to give a direct answer.
And, BTW, I’m not Wanderer – check the archives and you’ll see I’ve been posting under this name for over five years.
May 22, 2010, 10:27 pmDilan Esper says:
Actually, I wrote, “In a federalist system, the national government could, as it did in the U.S., crack down on local governments where sentiment is more racist.”
You did write that, but you ignored the private half of the equation. Because of the grip that high intensity minorities with significant cultural and economic power and willingness to use violence had on the economy, you had to use federal power to break that up, which meant you had to prohibit private as well as public discrimination by federal statute. Thus, the “libertarian” solution of respecting the right of private parties to discriminate while prohibiting public discrimination doesn’t work.
One other thing Amanda Marcotte pointed out about this. Libertarians want to shrink the public sector. In other words, not only do you want to have a strict public-private distinction where private parties are free to discriminate, but you also want to privatize more and more things and thus move them from the realm where discrimination is prohibited to the realm where it is permitted. In that respect, I hate to say it, but you guys come off looking really really bad.
May 22, 2010, 10:29 pmBored Lawyer says:
Doesn’t this point the way out of the libertarian problem with the CRA, if one views it as a problem? A libertarian might believe that the ideal situation is one where there is minimal govt. interference in the private sector.
BUT, where the govt. has in fact interefered — and in this case the interference was in a very long (300 years!), sustained and highly effective manner — then you need the govt. to fix the problem it caused, or at least to speed up the process.
May 22, 2010, 10:30 pmDavid Bernstein says:
Well, I have written just about exactly that, elsewhere. However, as Ilya points out, federalism is a double-edged sword. The political climate may lead the a tolerant federal government cracking down on discriminatory state and local governments, or a discriminatory federal government cracking down on tolerant state and local governments. There’s no inherent reason to expect one or the other. And the other point still stands: you weren’t going to get significant civil rights laws, nationally or almost anywhere in the U.S. in the 1930s, because public opinion was too racist. It’s only when racial progress was already made from outside the legal system that the law could step in to help move things along. But when the racial climate is deteriorating, the law could step in to move that along, too.
May 22, 2010, 10:53 pmDilan Esper says:
The political climate may lead the a tolerant federal government cracking down on discriminatory state and local governments, or a discriminatory federal government cracking down on tolerant state and local governments. There’s no inherent reason to expect one or the other.
That’s a really weird thing to say. There’s no inherent reason to think the private sector will produce a result with a lot of prejudice, bigotry, and discrimination, or that it will produce a result with only a little of it. All power, whether private or governmental, can be used for good or ill, and there are no guarantees in this life that you will get good results from either institution. The only thing you can do is use moral suasion and political and culutral power to push things in the more moral direction.
And the other point still stands: you weren’t going to get significant civil rights laws, nationally or almost anywhere in the U.S. in the 1930s, because public opinion was too racist.
This seems to me to be completely irrelevant. (It’s also a little oversold– progress was slow, but there were steps being taken by the government even in the 1930′s. The name “Marian Anderson” comes to mind for some reason.) The reason why libertarian arguments are wrong and appear to be racially insensitive is not because the “big government” approach could always solve the civil rights problem, but rather because it DID largely solve it at the time it was implemented and there is no proof that libertarianism could have EVER done so. And further, because the libertarian approach overvalues the right to engage in bigoted discrimination in economic transactions and undervalues the interests of blacks in being free from private discrimination. A correct calculus of morals and values understands that the former isn’t really as important as the latter, and libertarians deserve the criticism they get for not considering the interests of blacks to be important enough.
Look, at bottom I think your problem, and the libertarian problem more generally, is one that all ideologues have. There is no perfect theory of everything. There just isn’t. The world is way too contingent, and complex, to be described perfectly by any particular theory. And when a theory doesn’t adequately explain things, the tendency of ideologues is often to just say “No True Scotsman” and argue that if the theory was just implemented properly, everything would be alright.
Libertarianism may explain a lot of phenomena in the world for you, but it just doesn’t address this particular issue very satisfactorily, because you can’t really break the entrenched discrimination of the American South without violating a couple of principles that libertarians find really important. And this is pretty obvious to most people, which is why (1) you don’t see many politicians opposing the CRA anymore, and (2) people get really suspicious about the racial bona fides of libertarians who continue to argue there was something wrong with it.
May 22, 2010, 11:22 pmMark Field says:
Seems like an obvious point, but you’re the first to have made it in any of these threads.
May 22, 2010, 11:36 pmDesiderius says:
Mark Field,
“Seems like an obvious point, but you’re the first to have made it in any of these threads.”
It unfortunately also begs the question of whether the 300 years indicates something essential about government, with the recent departure being the exception, or vice versa. Awfully strange that those arguing the possibility of the former are so often labeled in these comments the utopians, with the latter evidently the realists.
May 23, 2010, 1:02 amDavid M. Nieporent says:
Do you think that a victim of Saddam Hussein would care how logical and unmalicious were the anti-war protesters’ motives for taking objectively pro-Saddam positions?
Do you think that a crime victim would care how logical and unmalicious were the ACLU’s motives for taking objectively pro-criminal positions?
Gee, this is fun and easy. When motives don’t matter, smears flow right off the tongue.
The answer is, I would hope that a victim of racial discrimination is rational enough to differentiate between the person who discriminated against him and the person who merely advocated for a rule allowing discrimination. Just as I would hope that a member of a racial minority would be rational enough to differentiate between the person who made racist comments and the person who defended free speech, even though that defense permitted the racist comments to be made.
May 23, 2010, 5:28 amLargo says:
Ach, that’s brilliant!
May 23, 2010, 7:50 amDavid Bernstein says:
Wow, let’s weight Marian Anderson on one side, and the fact that the federal government intentionally put several million black workers out of work via (especially) the AAA and the FLSA on the other. Now that’s progress!
May 23, 2010, 9:04 amDavid Bernstein says:
Actually, the private sector will, in fact, almost certainly mitigate societal prejudice, for obvious economic reasons, though the degree of mitigation will vary. The government may mitigate, or may make things worse. Behind the veil of ignorance, a sensible Jew like myself, asked to choose between a generally statist society, or a generally libertarian one, with no knowledge of the specifics, should certainly choose the latter.
May 23, 2010, 9:07 amMark Field says:
Without trying to get into a detailed accounting of government benefits and flaws over the last 300 years, isn’t it enough to say that this particular law (the CRA, I mean) is a good one?
May 23, 2010, 10:48 amDavid M. Nieporent says:
Enough for whom? Although liberals argue that the CRA needs to be evaluated in context, they at the same time want to justify it out of context. That is, although they ‘explain’ that the situation in 1964 made the CRA essential, they don’t seem to consider whether the situation in 2010 is anything like the situation in 1964.
May 23, 2010, 11:31 amMark Field says:
I’ll tell you what: since government intervened for the benefit of whites for 350 years, you can come back in 2414 and ask me if we still need the CRA.
May 23, 2010, 11:57 amDavid M. Nieporent says:
Very glib, but non-responsive.
May 23, 2010, 12:01 pmMark Field says:
No, it pretty much IS the point. You’re awfully quick to eliminate a statute which is very limited in scope, is clearly constitutional, and which has had immense benefit, in return for the doubtful promise that we’re now a color-blind society and the dubious benefit that racists can now discriminate. Do you really not understand how insensitive, at best, your comment is? Gee, a whole 46 years of mandated equality; that 350 years of slavery and segregation is all better.
May 23, 2010, 1:06 pmMichael Ejercito says:
So would a civil rights act that took away the state enforcement mechanisms be sufficient?
Just like the ACLU’s approach overvalued the right to free speech and undervalued the interests of Holocaust survivors in not having people “learn” that the Holocaust never happened.
What you fail to point out is that private-sector discrimination is decentralized.
Everyone would be free to discriminate against anyone else for whatever reason that they see fit. Everyone is a potential target of discrimination.
By contrast, discrimination by the state will be targeted at specific groups consistently.
A white supremacist cartel that relied on state power.
Libertarians oppose the use of state power to discriminate on the basis of race.
Jeff Jacoby supports freedom of speech, and even opposed Austria’s imprisonment of David Irving for Holocaust denial . Jacoby’s support of the right to deny the Holocaust must surely further Holocaust denial, National Socialist ideals, and invidious treatment of Jews. Do victims of the Holocaust and anti-Judaism care about how logical and unmalicious Jacoby’s motives are?
Do you think Jeff Jacoby is a Nazi nithing or a Holocaust denier?
Remember that he wrote “ How Does a Holocaust Happen? “, “ A Suspension of Barbarity “, “ A Factory for Death “, and “ The Silence of God “.
May 23, 2010, 1:10 pmMichael Ejercito says:
What proportion of the American population was alive during the Jim Crow era?
And where would private segregation take place if portions of the CRA banning private discrimination were repealed? While I have no doubt that whites-only (and blacks-only) lunch counters will reappear in Chicago, Illinois within minutes of the repeal of those sections of the CRA, would the same thing happen in Los Angeles’s Hollywood or Manhattan’s Greenwich Village?
Libertarians are arguing that private individuals should have the same right to discriminate on the basis of race as they have the right to deny the Holocaust. This does not mean that they support racial discrimination or Holocaust denial.
May 23, 2010, 1:17 pmDavid M. Nieporent says:
I’ll see your 350 years of slavery and segregation, and raise you 2,000 years of persecution, pogroms, and, you know, genocide.
(I’ll pass on the “clearly constitutional” and the “very limited in scope” points.)
May 23, 2010, 1:20 pmCC says:
Since the “private sector” in a capitalist system needs plenty of public sector propping up (e.g., law), this can’t be right. Capitalism is well known for its destruction of traditional ways of life, which destruction is wholly facilitated by government (e.g., corporation law, monetary specie, etc). Without public sector creation and enforcement of these facilities there would be no mitigation of societal prejudice against inefficient but traditional societal arrangements (including race prejudice).
May 23, 2010, 1:22 pmA Female says:
I’ll see your 350 years of slavery and segregation, and raise you 2,000 years of persecution, pogroms, and, you know, genocide.
(I’ll pass on the “clearly constitutional” and the “very limited in scope” points.)
I’ll go easy on you and raise you 10,000 years of sex-based discrimination. Revenge is so fun and really gets things done! Forget civil rights, right guys?
May 23, 2010, 1:34 pmMichael Ejercito says:
This does beg one question.
If there was 10,000 years of sex discrimination aimed at one sex, and this discrimination was everywhere , what did the people of that sex do that was so wrong to provoke ten thousand years of worldwide discrimination?
May 23, 2010, 1:44 pmA Female says:
I think it mostly has to do with being the weaker, easily dominated subset, just as blacks and Jews were. I don’t think Europeans looked at Africans and thought “how horribly ugly and inhuman they are”. Instead they thought “look at those strong people with no advanced weaponry or defenses”. Discrimination and prejudice built on top of that perceived weakness.
But I still LOLed–what indeed did those women do? Nag their men too much and not put out? Sheesh.
May 23, 2010, 1:57 pmBar says:
The Bible tells us so.
May 23, 2010, 2:06 pmMichael Ejercito says:
But then why were they weaker and easily dominated worldwide ?
While the Chinese are a despised group in Malaysia (Malaysian attitudes towards Chinese are eerily similar to attitudes found in Jim Crow era America), they are certainly not a despised group in China. And yet women experience discrimination against them all the time, everywhere .
May 23, 2010, 2:07 pmA Female says:
Because women are always, on average, physically weaker than men. Your comparison is not really accurate because discrimination against women is not necessarily due to them being despised. Besides, both sexes experience discrimination between each other all the time, especially in the United States where it’s practically encouraged. There are huge historical and biological factors not being discussed here, but are you seriously asking why the physically weaker sex of an animal group is treated differently? It seems evident.
May 23, 2010, 2:23 pmMark Field says:
So your solution would be to repeal the laws which ban such conduct? Okaaaay.
Look, parchment barriers may not be much, but they’re more than nothing. I mean, c’mon — should we repeal the BoR too?
May 23, 2010, 2:31 pmMichael Ejercito says:
Libertarians want to laws that punish victimless crimes like sodomy and Holocaust denial.
May 23, 2010, 3:01 pmDesiderius says:
Mark Field,
“Without trying to get into a detailed accounting of government benefits and flaws over the last 300 years, isn’t it enough to say that this particular law (the CRA, I mean) is a good one?”
Sure, but the general principle – the government broke it, therefore only government can fix it – does not necessarily follow, which was the point you claimed to be obvious.
In this case, the coercive power of the national state (buoyed by a significant tailwind provided by effective Comintern propaganda – effective due to the kernel of truth it contained; hard to lead the free world when one keeps a class of people unfree*) was required to break the coercive power, governmental and cultural, of a sub-region of that state.
Hard cases make bad law. In other instances of government failure, cultural or economic forces may be more effective in countering the bad effects or even rendering the failure obsolete than further governmental action, given the unintended consequences that often accompany such action.
* – one cannot count in general on such circumstances keeping the national government’s actions so benign.
May 23, 2010, 5:19 pmChris Travers says:
It might be sufficient today. I don’t think it was sufficient in 1964. However, we should be cautious about change just because it seems like a good idea. Incremental baby steps beats innovative change any day.
May 23, 2010, 5:47 pmMark Field says:
Bored Lawyer can speak for himself, but I didn’t read his post as saying that “only” government could fix the problem, merely that it was proper and appropriate for government to do so under the circumstances.
I agree with this.
May 23, 2010, 5:56 pmChris Travers says:
I don’t think that’s sufficient justification. I’m not at all quick to discard the possibility that the law might still be necessary, but today we have a different issue, which is that some people think these laws should be extended in scope to cover other identifiable groups.
For example, while there was a historical effort to keep gays in the closet if you will, there wasn’t a historical effort to keep them as a socio-economic underclass the way there was with blacks. Consequently I get VERY nervous about demands for anti-discrimination laws on the basis of sexual orientation. Gays, to be far, look to this and ask why they aren’t as well protected as blacks, and it seems unfair to them. While I see nothing wrong with homosexuality, I don’t want to see antidiscrimination laws enacted on that basis.
Some states, such as California, go even further, banning discrimination on the basis of political affiliation (so one cannot discriminate against Neo-Nazis in public accommodations). But these groups have a point: how is it equal protection under the laws to ban public accommodation harassment on the basis of race, but not on any other basis? Doesn’t it lead people with minority religions or political views possibly out in the cold?
I think the solution is to recognize that EVENTUALLY the civil rights act has to go, rather than that it has to be expanded to cover every level of public discrimination that society decides isn’t ok. At some point, freedom of association in business must be restored, but ideally we would see the CRA as a success which allows its gradual repeal.
May 23, 2010, 5:58 pmMark Field says:
I was talking only about the CRA. While my response was snarky, I do get annoyed at how easily some dismiss the extent of the wrong done and demand and end to the remedy.
May 23, 2010, 6:10 pmChris Travers says:
I don’t think the extent of the wrong done necessarily addresses the required remedy today, esp, when that remedy is a law enacted forty-six years ago. If that were the only issue I’d say “scrap the CRA entirely.” I, for one, think we shouldn’t sacrifice Constitutional liberties solely for the sake of atoning for historical wrongs.
The bigger issue is whether scrapping the CRA would result in a general increase in personal freedom for everybody or whether it would result in renewed discrimination. I like to think the former, but I can’t be entirely sure. At any rate I’m not sure enough to advocate a rapid change. This really should be THE issue involving the continued existance of the CRA.
May 23, 2010, 7:21 pmMichael Ejercito says:
It depends on the provisions of the CRA being discussed.
Discrimination by the government should still be prohibited.
May 23, 2010, 8:27 pmDilan Esper says:
Wow, let’s weight Marian Anderson on one side, and the fact that the federal government intentionally put several million black workers out of work via (especially) the AAA and the FLSA on the other. Now that’s progress!
This is epistemic closure, Professor Bernstein.
Was the New Deal exclusionary in several ways? Sure. But does anyone other than extremist libertarians believe that the New Deal, rather than the Great Depression, was responsible for African American unemployment in the 1930′s? No way.
Further, the New Deal programs, especially Social Security and the Wagner Act, were eventually expanded to include blacks and helped lift millions of blacks out of poverty. Further, to the extent that the BSCP was a key prime mover of the civil rights revolution, you could argue that the Civil Rights movement would have never been able to mobilize the way it did in the 1950′s and 1960′s and change the country without the Wagner Act.
Professor, seriously, you need to understand the difference between actual history and the historical excuse-making that ideologues use in order to provide talking point answers to obvious gaping holes in their beliefs.
May 24, 2010, 12:40 amDilan Esper says:
Actually, the private sector will, in fact, almost certainly mitigate societal prejudice, for obvious economic reasons, though the degree of mitigation will vary. The government may mitigate, or may make things worse.
You can believe this as a matter of religious faith, but if you care about empirical evidence, there have been plenty of societies more laissez-faire approaches to government and little government interference with private preferences where, in fact, discrimination and prejudice flourished. The fact that libertarians don’t believe that this can happen under their theories is one more piece of evidence that libertarianism is based on some pretty shaky premises.
There are more things in heaven and earth than are dreamt of in your philosophy, Professor.
May 24, 2010, 12:44 amDesiderius says:
“There are more things in heaven and earth than are dreamt of in your philosophy, Professor.”
And yours, dear Dilan. And mine. You seem oddly unaware, for one so smug, that you are participating in a debate that has gone on for thousands of years – see, for instance I Samuel and the writer’s ambivalence (at best) over the determination of the Hebrews to have a King (like other nations!) to rule over them.
Discrimination and prejudice are the human condition. It has been in those rare oases of freedom where they have been overcome by people with better things to do.
May 24, 2010, 8:13 amDavid M. Nieporent says:
There’s some sort of irony in juxtaposing those two paragraphs, but I can’t tell if it’s intentional.
Less jerking with that knee, please. Nothing you said contradicted what DB wrote.
He did not say that the market would instantaneously eliminate prejudice. What he said was that even if society is prejudiced, there are market incentives in the private sector working to mitigate the effects thereof. OTOH, in the public sector, it doesn’t work that way; the incentives are to reinforce that prejudice.
May 24, 2010, 12:36 pmMichael Ejercito says:
Thomas Sowell pointed out that Broadway theaters were hiring black entertainers in the 1920′s. As Ilya Somin pointed out in this blog, being black was disqualification for entry into the United States Marine Corps in that time period.
The libertarian position is that the government’s role in controlling private behavior is to only control or prohibit private behavior that infringes on people’s rights. And doing business with a particular person is not an inherent right.
They also believe that the government should treat people equally under the law.
Thus, their position implies that the government should not prohibit private discrimination or Holocaust denial.
May 24, 2010, 1:38 pmChris Travers says:
I think it should suffice to say that the interplay between private sector discrimination and social prejudice more complex than both sides want to accept. The question isn’t what other societies do, it’s what the effect to this society today would be. I don’t think we can know that 100% in advance, except by at least temporarily loostening the roles a bit and seeing what happens.
May 24, 2010, 2:11 pmDilan Esper says:
Discrimination and prejudice are the human condition. It has been in those rare oases of freedom where they have been overcome by people with better things to do.
That might be so, but that is not the same thing as saying “governmental sanctions to induce humans to engage in less invidious discrimination can’t work” or, even worse, “the free market will somehow solve the problem of this human condition better than any governmental intervention possibly could”.
May 24, 2010, 2:38 pmDilan Esper says:
Thomas Sowell pointed out that Broadway theaters were hiring black entertainers in the 1920’s.
More proof that Thomas Sowell is a hack.
Seriously, I didn’t grow up in these times, but my parents did. And even in the more racially-progressive West Coast cities, there were very few jobs in white-dominated society for black folks. As I noted before, if you were black, you didn’t get a job as a waiter in a nice restaurant. You didn’t get a job working as a manager or customer service representative at a hotel. You didn’t get a job in a leadership position in corporate America. These things simply didn’t happen.
You were either stuck serving poor folks in the black community (and making commensurately lower wages than whites) or you worked as a busboy or a bellhop or a domestic servant or a sleeping car porter or some other low-status menial job– or you didn’t work at all. It was hard for blacks to even get athletic scholarships to go to top colleges or work in the major professional sports leagues (and of course, the failing Negro leagues paid terribly).
This was the reality of the segregation that you apparently endorse, Michael. It wasn’t pretty, and it was very bad for black people, whose welfare is apparently less important to you than your ideological premises.
Thomas Sowell is to black folks what Norman Finklestein is to Jews.
May 24, 2010, 2:46 pmDavid M. Nieporent says:
Well, who can argue with that robust evidence?
My parents visited Denmark; do you want to hear my review of Copenhagen’s street performers?
May 24, 2010, 2:54 pmMichael Ejercito says:
Freedom is important.
Guess why the ACLU defended the march on Skokie. Were their ideological premises more important than keeping people from agreeing with National Socialism or denying the Holocaust?
However, it is the same thing as saying that the government should not regulate private conduct that does not violate individual rights.
Jeff Jacoby opposes laws against Holocaust denial . Does that mean he supports an ideological premise more than the interests of people who want to learn the truth about the Holocaust?
Other people oppose laws against burning American flags? Does that mean they support an ideological premise over decency and respect for America?
You claim that it is a noble goal for the government to guarantee racial equality. But other people believe it is a noble goal for the government to enforce respect for the American flag, enforce recognition of the Holocaust, or enforce opposition to National Socialism or Communism. Why is your goal more noble than their goals? Why can we not outlaw flag burning or Holocaust denial? Why can we not deny the right of Nazis and Communists to have public marches?
May 24, 2010, 3:05 pmDilan Esper says:
Michael:
Free speech is a more important principle than the right to refuse to do business with black people because one is prejudiced against them.
You don’t get this, and seem to think that the ACLU defending Nazis is a free pass for your beliefs.
May 24, 2010, 4:23 pmDilan Esper says:
Well, who can argue with that robust evidence?
It happens that the world my parents observed has also been well documented, David.
May 24, 2010, 4:23 pmMichael Ejercito says:
Who were these minorities that were subject to official discrimination that enjoyed higher affluence than the discriminators?
And who determines which principles are more important?
May 24, 2010, 7:43 pmDilan Esper says:
And who determines which principles are more important?
You might want to take a course in moral philosophy. But I will give you this hint– in non-repugnant ethical systems, the interests of blacks in being able to fully participate in the economic system far outweigh the interests of bigots in being able to discriminate based on their prejudices in economic transactions. In ethics, that’s as close to a no-brainer as there is.
May 24, 2010, 7:56 pmElliot says:
“I was talking only about the CRA. While my response was snarky, I do get annoyed at how easily some dismiss the extent of the wrong done and demand and end to the remedy.”
OK. Wrongs were done 300 years ago. Wrongs have been done for the last 10,000 years. So what? What deos that have to do with us today?
May 24, 2010, 9:06 pmMichael Ejercito says:
So you support removal of laws and regulations that prevent black people from going into business?
May 24, 2010, 9:55 pmDesiderius says:
Dilan,
“the free market will somehow solve the problem of this human condition better than any governmental intervention possibly could”
There are other things afoot than markets and governments.
May 24, 2010, 10:33 pmLargo says:
You really don’t do your case well by overstating it, Dilan.
Edit: The correction is appropriate even if it is the case that the evidence in its totality is cause for proof.
May 25, 2010, 3:01 amChris Travers says:
But what of the chilling effect from hostile public accomodations suits? Why is it effectively prohibited to put up a sign saying “No Niggards Welcome (please tip well)” because one would have to fear lawsuits even though a literal reading of the sign is entirely unobjectionable?
I’m wondering if the ACLU ever defends this sort of commercial speech against hostile accommodations harassment suits. I wish they did (I’m generally a fan of the ACLU) but this is an area that gets very little attention. I’m glad to see EV spending a lot of time and effort on this area. I just with the ACLU would join him.
May 25, 2010, 1:22 pmDilan Esper says:
But what of the chilling effect from hostile public accomodations suits? Why is it effectively prohibited to put up a sign saying “No Niggards Welcome (please tip well)” because one would have to fear lawsuits even though a literal reading of the sign is entirely unobjectionable? I’m wondering if the ACLU ever defends this sort of commercial speech against hostile accommodations harassment suits. I wish they did (I’m generally a fan of the ACLU) but this is an area that gets very little attention. I’m glad to see EV spending a lot of time and effort on this area. I just with the ACLU would join him.
My first ACLU case was defending the right of a firefighter to read Playboy at work against a claim that it constituted hostile environment harassment, so I would suspect the answer is “yes”.
That said, there’s a difference, from a First Amendment persepctive, between a sign that expresses a prejudice against a racial group and a sign that actually implements one’s refusal to do business with them. There were cases involving want ads that made this distinction.
May 25, 2010, 2:27 pmChris Travers says:
But here the question would be whether the sign said I wouldn’t do business with stingy people (what it says), but it could be easily taken to say that there might possibly be a racist pun there suggesting that African Americans were unwelcome. Certainly a reasonable person might be able to read the sign as suggesting that it was refusing to do business with African Americans even though such a reading would be at least incorrect from a literal perspective. The racist reading would be strengthened if one read “Clansman” as a reference to “Klansman.”
The question is really: How many potentially racist puns can be in an advertising campaign before it becomes actionable?
I’m glad to hear the ACLU does take such cases though.
May 25, 2010, 3:10 pmDilan Esper says:
Chris:
A statement indicating one’s refusal to do business with persons of a particular race or gender is taken as evidence of discrimination. It doesn’t prove it, and a defendant can rebut the inference of discrimination with evidence that he or she does not, in fact, discriminate.
In general, statements in want ads have been taken as establishing discrimination, because the context of want ads is such that one would not normally put a statement in a want ad indicating one’s preference not to do business with those of a certain race or gender if one was not intending to actually discriminate.
One thing to bear in mind about such things, though. It’s not as though “No ________’s allowed” is very high value speech, even in terms of expressing bigotry. There are all sorts of ways to express that one does not hold a particular racial group in high esteem that nonetheless would not be taken by a reasonable person as a statement that one is discriminating in one’s business transactions. So, I don’t see the huge injury that is done in telling bigots to find a manner to express their prejudice that would not be taken in such a way.
May 25, 2010, 3:19 pmChris Travers says:
Sure. But, my question was about chilling effect. “No Irish Need Apply” is very different from “Niggards will not be served, so please tip well” in the sense that the first is clearly bigoted, while the second literally is against stingy tipping, even though a reasonable person could read it as a bigoted statement by confusing the first word.
Furthermore if a black man sues a restaurant for public accommodations harassment saying he was referred to as a “nigger” is it a defence for the owner to say “no, he never leaves a tip, so I called him a ‘niggard?’”
May 25, 2010, 3:45 pmDilan Esper says:
Chris:
In your “niggards” hypothetical, as I said, the sign would be taken as some evidence of discriminatory intent, but the store owner could show that in fact he did not engage in any racial discrimination.
Again, though, if the jury doesn’t believe the store owner, I won’t be shedding any tears. It’s really stupid and juvenile to play with racial fire in that manner.
May 25, 2010, 4:32 pmChris Travers says:
So you’re for the chilling effect then?
May 25, 2010, 4:36 pmDilan Esper says:
So you’re for the chilling effect then?
As many courts have noted, whether “chill” arguments are compelling depends very much on the value of what is being chilled. This is why nude dancing bans aren’t struck down on the grounds that artistic striptease will be chilled, whereas defamation and emotional distress suits are greatly restricted because they might chill political expression.
If a store owner is chilled out of a juvenile joke that is offensive to a lot of blacks, screw him. That’s very low value speech that is being chilled.
May 25, 2010, 6:06 pmChris Travers says:
Burning the flag is offensive to a lot of folks too, and many see this as juvenile and low value too. I honestly cannot find a principled way to differentiate this, except to say that speech must rise to the level of conduct to be regulated as conduct.
I think juvenile jokes MUST be protected unless they are functionally equivalent to illegal conduct, or are specifically slanderous, libelous, etc.
Also I thought “value” in free speech law had to do with expressiveness, not whether people see it as juvenile or productive.
May 25, 2010, 6:37 pmChris Travers says:
(note I wouldn’t cry for the guy who gets judged against him in this way, but I would protest loudly the general loss of free speech for myself and others.)
May 25, 2010, 6:46 pmDilan Esper says:
Burning the flag is offensive to a lot of folks too, and many see this as juvenile and low value too.
The difference is direct ban vs. chill. I don’t think you can pass a law that says “no business can display any bad pun using the word ‘niggardly’”. But I do think that a law that prohibits other conduct, but which might chill such puns, isn’t unconstitutional because of the chill.
May 25, 2010, 9:07 pmInsider says:
An issue I take with a few common libertarian ‘conclusions,’ that are reached is that they seem to forget the axiomatic importance of ‘rights’ through the filter of a social contract.
By this I refer to the insistence of natural, ‘inalienable’ rights, and from this, they derive limits on those rights based upon how they come into conflict with the rights of another.
First and foremost, the negative rights that libertarians begin with can only exist in pure form within the state of nature. People soon realize that it is more efficient to give up some part of these in exchange for these rights being ‘enforced,’ to a degree. As soon as government is created, there can be no such thing as a ‘pure’ negative right.
This formation of the social contract burdens government with the task of enforcing these agreed upon rights. The main primaries being, in the United States of America, the right to life, liberty, and the pursuit of happiness—far more broad than simply ‘the pursuit of property.’ Derivative rights follow in the constitution, and Government attempts to legislate in a manner that will ensure proper enforcement of these rights for all citizens. This means striking a balance so that no man has a ‘more equal’ share of enforced rights versus anyone else.
And obviously, we need some sort of calculus for doing so.
Oftentimes it seems that libertarians give heavy focus to the individual’s sphere of freedom, but never the same amount to the sphere of influence. More on this later…
The further away, in terms of actual owned property, we get from one’s own body, the less damaging abridgment of one’s property rights is to the person.
For example, if I slashed the tires to your car, the injurious effects to you are nowhere near the same as if I slashed your wrist.
The average libertarian wants to equivocate these two damages, when it is obvious that they are not equivalent.
Now, we focus on the pertinent issue of private business discrimination. It is necessary now to talk about one’s sphere of influence and one’s sphere of ‘freedom,’ defined of course as the available actions one could take. The act of you sitting at your house carries with it a small sphere of influence, and consequently, the sphere of freedom is larger.
In private business transactions, one’s sphere of influence is much larger—business decisions of a certain type can directly have the effect of diminishing the rights of other citizens—and consequently, one’s sphere of freedom must be limited.
Discrimination based on passive, unchangeable characteristics, is an active attempt on the part of the business owner to deprive a certain group of their rights. Even assuming that it was not ‘meant’ to be this way, there is no way for it not to have such an effect.
By example: if a black man finds himself at a job, paid in currency, he will not be able to enjoy the fruits of his labor. Even if one lone business refuses him service based on the color of his skin, his right to the pursuit of property has been diminished.
His labor is valued at the currency he received, yet he cannot enjoy that full value because of the arbitrary action by the business owner.
Some libertarians have attempted to dodge such a question by assuming a ‘barter’ economy—ridiculous of course, but a necessary indulgence—for even then, the black man would have to make more products than a white man would for a similar exchange, thus depriving him of the fruit of his labor still.
Now we must return to the question of how the private business owner will be harmed if we abridge his right for the sake of preserving the minority’s right to pursue property.
The private business doesn’t stand to lose revenue—so the business owner’s livelihood itself is not affected, whereas in the alternative scenario, the black man’s livelihood is. The rights affected of the business owner are too distant from his person and his inalienable rights to outweigh the rights gained by the minority individual/group.
Where libertarians like to dodge, of course, is by conflating a private business with a ‘private home.’ They are not the same thing, and libertarians would do well to learn about different types of property and the different uses of them.
Some examples also mix up the notions of ‘free speech,’ and ‘property rights.’ Business transactions open otherwise to the general public have far greater influence than a person espousing racist beliefs. So accordingly, we can abridge the former more than we can the latter.
And while it’s true that there are always market incentives to ‘suppress’ or ‘mitigate’ racism, there’s no telling how long it will take for them to play out. Much the same as in recessions, sometimes the ‘long-run’ can be quite long indeed, and the government can do well by ‘speeding up’ the process.
So, does the government have the authority? I’d say that even following libertarian thoughts from their origin can lead one to the conclusion that they do.
May 27, 2010, 9:52 am