Sheldon Richman responds to my Cato Unbound essay here, criticizing my position as being insufficiently libertarian, although he otherwise shares many of my underlying premises.
And Jason Kuznicki responds to my essay here, supporting Title II from a Hayekian perspective, while, unlike me, expressing no noticeable qualms about the vast expansion of the antidiscrimination edifice since 1964.
In other words, I am in the unusual position of being a moderate!
I should note that when I originally posted a link to my essay, some of our liberal VC commenters responded that they were unconvinced. So let me note that my assignment was to write an essay about “how libertarians should approach antidiscrimination laws.” In other words, my primary target audience was readers who already share the basic libertarian premise of a strong presumption against government interference in private market arrangements.
I was aware that other readers would be interested in the essay as well, and tried to correct some errors and misconceptions I’ve seen in left-wing blog posts about libertarianism and antidiscrimination laws. I explained what the general libertarianism position is, how it’s been misconstrued, and why the libertarian position is not any more dogmatic than, say, the liberal position on free speech.
That said, I wouldn’t expect any statist-leaning liberal to be persuaded by my essay that the libertarian position is correct. Strong opposition to any and all forms of (at least politically incorrect) discrimination is a defining aspect of modern American liberalism, and liberals do not share libertarians’ strong presumption against government action to right perceived social wrongs. If I were to try to persuade liberals to be more libertarian, pretty much the last place I’d start would be with antidiscrimination laws, given their centrality to modern liberals’ self-conception. (And, moreover, I point out in [...]
I’ve written an essay for Cato Unbound, which the editors have titled “Context Matters: A Better Libertarian Approach to Antidiscrimination Law.” Over the next few days, Sheldon Richman of the Foundation for Economic Education, Jason Kuznicki of Cato, and Jeff Miron of Harvard will write comments, and then we’ll have some back and forth. Should be fun, and hopefully enlightening. [...]
All the discussion of Title II of the 1964 Civil Rights Act has obscured the fact that public accommodations laws, especially at the state and local level, have expanded way, way, beyond their original purpose of ensuring that previously excluded minorities are served in restaurants, hotels, and the like. This has happened more via aggressive judicial interpretation of the language of these laws than from the laws themselves, which were phrased to not infringe unduly on private behavior.
For example, the Boy Scouts of America v. Dale case involved the courts of New Jersey declaring that the membership policies of the Boy Scouts violated the state’s ban on discrimination in places of public accommodation. This even though the membership policies of the Boy Scouts are clearly not a “place,” the Boy Scouts of America is not an “accommodation” in the the usual sense of the word, and the membership policies of private organizations are not “public.” (Chapters 7 & 8 of my You Can’t Say That! book deal with the use and abuse of public accommodations laws. Since the book is now available used on Amazon for literally a penny, interested readers have little excuse not to buy it.)
Besides that, the decline of the principle that a business owner has at least some right to exclude what he deems undesireables has led to some very bizarre cases, none more so than the one described below, which a VC commenter alerted me to.
Here’s the story, from a VC post from 2006:
There is a German restaurant called the Alpine Village Inn, in Torrance California. A group of four neo-Nazis went there to eat, each wearing a lapel pin with a swastika on it. The management asked them to take off the lapel pins. They refused. The management asked them
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
I want to analyze two positions that I’ve seen liberals take on the role of government in promoting civil rights and antidiscrimination norms.
One position is as follows:
We liberals believe in government activism to solve important social problems, and the 1964 Civil Rights Act was an important example of where this philosophy had extremely good consequences. Therefore, when it comes to the “Second Reconstruction,” liberalism proved its worth over the competing ideologies of conservatism, which focused myopically on state sovereignty, and libertarianism, which had no clue how to deal with the legacy of Jim Crow oppression.
Obviously, not everyone is going to agree with this formulation, but it’s not unreasonable.
A second position is as follows:
We liberals believe in government activism to solve important social problems, and the 1964 Civil Rights Act was an important example of where this philosophy had extremely good consequences. Therefore, activist government is generally good for minorities, and the competing ideologies of conservatism and libertarianism are hostile to the rights and interests of minorities, because those ideologies are hostile to activist government.
This doesn’t follow at all. As a matter of American history, activist government was often used to oppress minority groups. As a matter of world history, the record of “activist government” with regard to minorities is even worse. And as a matter of political theory, it’s not at all clear why one would expect public policy in a democracy to necessarily be helpful to minority groups.
I’ve never seen a formal academic model of this, but it seems fairly obviously to me that if a minority group is thoroughly despised by the majority, activist government will almost certainly reinforce societal discrimination. On the other hand, if the minority group has a reasonable and growing level of sympathy/empathy from the majority, [...]
Let’s say a liberal and a libertarian are having drinks at a bar, and discussing public policy. The liberal asks the libertarian what he thinks of anti-discrimination laws that apply to private parties. The libertarian says that he wants to put the issue of race to one side, because of its special history in the U.S., but is happy to discuss his views on antidiscrimination laws that apply to groups aside from racial minorities. [Update: Some liberal commenters object to this exclusion. But given that the liberal position on affirmative action preferences for racial minorities is typically based on the same premise, that the history of race in the U.S. is a special case that could warrant a deviation from otherwise sound principles, I doubt they really want to emphasize this objection.] The liberal agrees.
The libertarian then says that he opposes antidiscrimination laws that apply to private parties. First off, he explains, he has a generally extremely strong presumption against the government exercising authority over private activities, for both philosophical and practical reasons. Second, he adds, he believes that the government does not have a sufficiently compelling interest in banning discrimination against various groups to overcome that presumption. Third, even if he was tempted to think that if the government had such an interest with regard to some of the groups at issue, the way government works means that more and more groups will demand protection, and the laws will expand to more and more contexts where discrimination might take place, until the net social costs of enforcing discrimination laws will dwarf their benefits. Finally, he adds, he thinks that moral suasion, education, boycotts, and the like, are the best way to deal with most types of discrimination.
The liberal, not used to hearing the libertarian position on such [...]
One thing that’s been especially appalling about the Rand Paul controversy is how quick many liberal commentators (including people who frequent the comments section on this blog), have been to accuse not just Paul of racism, but also anyone who takes the libertarian position on antidiscrimination laws, i.e.., that the government itself may not discriminate, but the government should tolerate private discrimination. Admittedly, someone who takes the libertarian position on this but no other issues, as many did in the South in the early ’60s, is suspect. But if someone takes a consistent libertarian position on public policy controversies, i.e., that the government should limit itself to banning force and fraud and otherwise not interfere with private behavior, it’s hardly an indication of racial animus to take the exact same position with regard to discrimination. (And, needless to say(?), in 2010 antidiscrimination laws do not primarily deal with race in any event [think age, sex, disability, sexual orientation, religion, and so on]. Moreover, the libertarian position is actually helpful to advocates of affirmative action in the private sector, which is the most “live” current issue in antidiscrimination law with regard to race).
That, however, is not why the liberal charge of racism is so appalling. Rather, [as some VC commenters have pointed out], it’s because this is the exact same kind of dishonest, malicious rhetoric that liberals face from conservatives when they take principled positions on issues of importance to them. Consider the liberal defense of Communists’ free speech and employment rights in the 1950s; their critics accused them of being Communist sympathizers, if not outright Communists. When the ACLU defended the Nazis’ right march in Skokie in the 1970s, their critics accused them of giving aid and comfort to Naziism. When liberals defend the right to abortion, they are [...]
Read David Bernstein’s excellent blog post. Unfortunately, because the title of David’s post referred to Bruce Bartlett and not Rand Paul, some seeking a “libertarian” take on this issue may overlook his analysis. To David’s libertarian analysis I would add the following considerations pertaining to the original meaning of the Constitution:
(1) The problem of Jim Crow in the South was a direct product of slavery–indeed it was a deliberate and concerted effort by Southerners to reimpose slavery in everything but name. Slavery was a private as well as a public institution, which is why the Thirteenth Amendment was not limited to state action. As such, even private conduct that amounted to “badges and incidents” of slavery should have been reachable by Section 2 of the Thirteenth Amendment, which empowered Congress to make laws to put that provision into effect. It was under Section 2 that Republicans in Congress passed the first Civil Rights Act of 1866, and the Freedman’s Bureau Act. Whether or not these acts were truly within the original meaning of the Thirteenth Amendment is, of course, a matter of dispute. I think the better analysis of the Thirteenth Amendment was explained by Justice Harlan in his dissenting opinions in the Civil Rights Cases and Plessy v. Ferguson. The opposing view that limited the reach of the Thirteenth Amendment was articulated by President Andrew Johnson — a “War Democrat” — when he vetoed the Civil Rights Act in his highly racist veto message. Because Johnson’s reading of the Thirteenth Amendment has largely prevailed among legal scholars of all stripes, Section 2 of the Thirteenth Amendment is generally overlooked in debates concerning the scope of Congressional power over “private” conduct.
(2) As David mentioned, the South systematically denied free blacks, and whites who wished to deal with [...]
Bruce Bartlett, an economist whose work I’ve enjoyed reading over the years, and author of a book on the history of the Democratic Party and race, uses the occasion of Rand Paul’s controversial remarks about the Civil Rights Act of 1964 to launch a weirdly ahistorical attack on libertarianism:
As we know from history, the free market did not lead to a breakdown of segregation. Indeed, it got much worse, not just because it was enforced by law but because it was mandated by self-reinforcing societal pressure. Any store owner in the South who chose to serve blacks would certainly have lost far more business among whites than he gained. There is no reason to believe that this system wouldn’t have perpetuated itself absent outside pressure for change.
In short, the libertarian philosophy of Rand Paul and the Supreme Court of the 1880s and 1890s gave us almost 100 years of segregation, white supremacy, lynchings, chain gangs, the KKK, and discrimination of African Americans for no other reason except their skin color. The gains made by the former slaves in the years after the Civil War were completely reversed once the Supreme Court effectively prevented the federal government from protecting them. Thus we have a perfect test of the libertarian philosophy and an indisputable conclusion: it didn’t work. Freedom did not lead to a decline in racism; it only got worse.
Many of the specific factual claims Bartlett makes above are false, but instead of nitpicking those (e.g., African-Americans’ standard of living kept rising after Reconstruction) let’s start with first principles. The basic libertarian position on civil rights is as follows: (1) Private discrimination should, in general, be legal (this includes affirmative action preferences, btw). Many libertarians would make exceptions for cases of monopoly power, and most would [...]
I interviewed Brown University history professor James T. Patterson about his book examining the tragic rise of illegitimacy rates, and the American political elite’s refusal to address the problem for decades. MP3, 50 minutes. During the course of our discussion, I mentioned my own writing about successful early intervention programs for at-risk children; that writing is contained in this Barry Law Review article, text at notes 214-28. (A much more detailed analysis is contained in my book Guns: Who Should Have Them?). [...]
One of the fun, albeit somewhat disheartening, things about having written a book about the encroachment of antidiscrimination laws on all aspects of civil society is watching hypotheticals your critics dismissed as “absurd” or “ridiculous hyperbole” turn into real cases. For example, while the Boy Scouts of America were sued for refusing to allow homosexual scoutmasters, what if a gay group was sued for discriminating against bisexuals? Shouldn’t organizations for gays and lesbians have the right to determine their membership policies? Come on, Professor Bernstein, enough with the ridiculous hyperbole! [...]
Over at The Faculty Lounge, there are some pictures of sit-ins from the early 1960s. Regarding a 1963 sit-in in Jackson, Mississippi, TFL writes: “By one account, members of the all-White Jackson police force stood guard outside, while several FBI agents (the guys in back wearing shades) ‘observed’ from inside. That White guy at the counter, that’s Tougaloo professor and community activist Hunter Gray (John R. Salter) who helped organize the Jackson sit-ins. And that’s blood on his shirt. All of the protesters had been covered in slop, and some were beaten with brass knuckles and broken bottles.”
The non-violent Civil Rights protesters allowed themselves to be beaten in public while the media watched; the images helped win sympathy for the Civil Rights Movement in the North, and proved to be crucial in developing the political will for the passage of the Civil Rights Act of 1964.
In a limited sense, the media’s presence provided some protection for the protesters; there was never a case in which a civil rights protester was murdered in front of media cameras. At night, when everyone had gone home, things were very different. As Salter later explained:
I was beaten and arrested many times and hospitalized twice. This happened to many, many people in the movement. No one knows what kind of massive racist retaliation would have been directed against grassroots black people had the black community not had a healthy measure of firearms within it.
When the campus of Tougaloo College was fired on by KKK-type racial night-riders, my home was shot up and a bullet missed my infant daughter by inches. We received no help from the Justice Department and we guarded our campus — faculty and students together — on that and subsequent occasions. We let this be known. The
“In the urban industrial society of today a general right to bear efficient arms so as to be enabled to resist oppression by the government would mean that gangs could exercise an extra-legal rule which would defeat the whole Bill of Rights.” Roscoe Pound, The Development of Constitutional Guarantees of Liberty 91 (1957).
Although Pound prided himself on being in touch with current realities, he was already being be proven wrong by the facts on the ground. The possession of efficient arms by civil rights workers (including Condoleezza Rice’s father, a Methodist minister) and of groups like the Deacons for Defense was essential to the success of the Second Reconstruction. A key reason why the Second Reconstruction succeeded and the First Reconstruction failed was that the second time, the defenders of the Constitution had sufficient arms to resist attacks by the Ku Klux Klan and other state-supported terrorist organizations.
Arms possession by the civil rights advocates in the late 1950s and 1960s did not lead to lawless gang rule. It led to the restoration of the rule of law in the South, to the long-delayed enforcement of the Fourteenth and Fifteenth Amendments.
Although Pound was sometimes cited by opponents of the Standard Model of the Second Amendment, Pound’s point was not really that the Standard Model is wrong as a matter of original intent/meaning, but simply that the Second Amendment is no longer a good idea as a matter of public policy. Pound’s view that the Second Amendment could be ignored if modern persons thought it was no longer a good idea is consistent with his general view that legislation which once would have been clearly unconstitutional could be considered constitutional in modern times, based on perceptions of changed social needs. See generally Roscoe Pound, “Mechanical Jurisprudence,” 8 Colum. L. [...]