One of the most common rationales for anti-discrimination law is that it is needed to protect unpopular minority groups against exclusion from jobs and other opportunities. This conventional wisdom has a significant weakness: If the group in question really is unpopular with the majority, a democratic government is highly unlikely to enact antidiscrimination laws protecting it. In order for such laws to be adopted, the majority of voters probably already has to believe that discrimination against that group is wrong. But if that is the view of majority opinion, then it is improbable that a legal ban on discrimination will greatly improve the status of the group. Most businesses and employers would likely adopt a nondiscrimination policy of their own accord, either because their owners agree with the majority view, or because competitive pressures force them to hire productive minority workers and serve paying minority customers even if they are personally hostile to the group in question. Or at least they will do so in the absence of the kind of government and private violence that constrained integration in the pre-1964 South.
Some, like George Will in his recent criticism of Rand Paul, argue that the Civil Rights Act of 1964 was an exception to this, and that it actually changed white public opinion, rather than followed it:
The simple fact is that in 1964, we, as a nation, repealed one widely-exercised right – the right of private property owners to serve on public accommodations whom they want – and replaced it with another right, that is the right of the entire American public to use public accommodations,” Will said.
“We were correct to do so and in the process, we refuted an old notion: that you cannot – and this may offend some libertarians – the notion was you cannot legislate morality. Yes you can,” Will said. “We did.”
“We not only got African-Americans into public accommodations, we changed the thinking of the white portion of the country as well,” he explained.
I. The Civil Rights Act Followed Majority White Public Opinion.
The truth is almost the reverse of Will’s statement. The Civil Rights Act was enacted in 1964 because “the thinking of the white portion of the country” had already changed over the previous 20-30 years. As Howard Schuman and his coauthors document in their comprehensive book Racial Attitudes in America, there was an enormous liberalization in white opinion on race from the 1940s to the 1960s. By 1963, one year before the enactment of the Civil Rights Act, 85% of whites polled in a National Opinion Research Center survey endorsed the view that “Negroes should have as good a chance to get any kind of job” and rejected the position that “white people should have the first chance at any kind of job” (endorsed by only 15%). This contrasts with 55% who said that “white people should have the first chance” on the same question in 1942 and 51% who said so in 1944.
Similarly, 73% of whites questioned in a 1963 NORC poll embraced the view that “Negroes should have the right to use the same parks, restaurants, and hotels, as white people.” The same 1963 study also showed that 79% of whites rejected the idea that transportation in streetcars and buses should be segregated, compared to 54% who had endorsed it in 1942 (both the 1942 and 1963 questions used the same wording). The 1963 figures probably overstate the actual degree of white support for integration and equal opportunity. But it’s hard to avoid the conclusion that white opinion had moved strongly in an integrationist direction relative to previous years, and that discrimination against blacks in employment and public accommodations was opposed by a majority of white voters by 1964.
Schuman and his coauthors show that white racial attitudes continued to move in a more liberal direction after 1964. But the enactment of the Civil Rights Act does not seem to have accelerated the pace of change.
None of this means that the Civil Rights Act was insignificant. Although national white opinion was generally favorable to integration by 1964, southern whites were still much more hostile. Moreover, southern businesses that wanted to employ black workers on an equal basis with whites and/or serve black customers in an integrated setting were often prevented from doing so by state law and government and private violence. On these fronts, the Act really did make a major positive difference. The South probably would not have desegregated anywhere near as fast without it.
II. Activist Government and Unpopular Minorities.
Nonetheless, the relationship between white public opinion and the Civil Rights Act does reinforce the point that a democratic government is unlikely to enact strong antidiscrimination laws to protect a group unless and until the majority of voters comes to oppose discrimination against it. It also underscores David Bernstein’s point that activist government is not in the interest of genuinely unpopular minority groups, as blacks were prior to the 1950s and Jews for much of American and European history.
When blacks were still despised by a majority of whites, both state and federal governments enacted numerous laws that not only permitted anti-black discrimination, but actually required it.
One might say that such laws don’t really make much difference, since the private sector would discriminate against unpopular minorities on its own. However, majority opinion is rarely monolithic. Jim Crow laws were enacted in large part because some whites were still willing to hire blacks on an equal basis with whites and run integrated public accommodations – either because they were more tolerant than the majority, or because they prioritized profit above prejudice. For example, nineteenth century southern streetcar companies preferred to operate integrated facilities and opposed Jim Crow laws, because they feared that segregation would reduce their profits. Similarly, as Robert Higgs documents, post-Reconstruction southern landowners found that they could not get away with paying black sharecroppers much lower wages than white ones without supportive government intervention that prevented them from competing up the wages of the blacks.
Given a high level of societal prejudice against a group, activist government often ensures that the level of exclusion and discrimination against the group is much greater than it would be otherwise. Bernstein and I discuss this point in detail in this article (esp. pp. 602-12).
In sum, antidiscrimination law can impose majority opposition to discrimination on a recalcitrant region such as the South in the 1960s. But it is unlikely to provide much protection for genuinely unpopular groups (“unpopular” in the sense that the majority of the voting population is hostile to them). Indeed, activist government is more likely to worsen the condition of such groups than improve it.