Thursday, July 27, 2017

Fighting Anti-Private Discrimination Laws: The Role of Principles in the Fight for Freedom

Thanks to Anoop Verma’s Facebook group “For the New Intellectuals,” I came across a 2010 article concerning a subject I’ve written substantially about—the ongoing controversy surrounding anti-discrimination laws targeted at the private sector.

Then-U.S. Senate candidate Rand Paul’s remarks relating to Title II of the 1964 Civil Rights Act six years ago was the subject of a column by Cathy Young titled Racism, Civil Rights, and Libertarianism. Paul “opined that privately owned establishments should be able to decide whom to serve without government interference,” but after a firestorm of criticism “Paul quickly clarified that he would neither advocate nor support a repeal of the Civil Rights Act clause banning discrimination by private businesses.”

But “libertarian TV journalist John Stossel fanned the flames on Fox News by not only defending Paul's initial remarks but explicitly suggesting that that portion of the law should be repealed,” Young reported.

Young defended Stossel against Leftist attacks. Stossel's viewpoint “is neither inherently racist (he has stressed that he would never patronize a restaurant that excluded blacks) nor "repugnant," Young writes. “It is an intellectually consistent and legitimate, if moot, argument.”

It is on this last point, that Stossel’s argument is “moot,” that Young goes wrong, in my view. Young continues:

But while the libertarian argument against anti-discrimination laws is certainly not racist, it sometimes seems uncomfortably naive (in 1964 or today) about the social realities of Jim Crow. As some strong champions of free markets, such as legal scholar Richard Epstein, have pointed out, racial segregation and discrimination by private businesses in the South was not simply the result of owners' personal choices but of powerful societal pressure as well as coercion by state governments. Businesses that refused to discriminate were targeted for officially sanctioned or condoned harassment and intimidation.

Would "whites only" business practices have crumbled fast, as some libertarians believe, if the federal government had limited itself to dismantling the public foundations of segregation? Or was bigotry too pervasive, too deeply entrenched in minds and morals? The latter seems more likely. Moreover, for generations this private bigotry had been not only enabled but fostered by public policy, from slavery onward. Writing in The New Republic, John McWhorter, an insightful, iconoclastic black commentator, defends Paul's and Stossel's right to express their unorthodox views but also asserts that "the social rejection of racism was driven in large part by the head start, authority, finality, and even the drama of the legal banning of segregation."

Most likely, over the long haul, overt discrimination against blacks in the private sector would have become socially unacceptable and mostly extinct. But could American society have afforded to wait?

Young answers “no”:

To answer "yes" is to underestimate the urgency of the issue, the evil of Jim Crow. Segregation was not merely an inconvenience or a violation of abstract principle but the systematic degradation of American citizens who were black.

It's fine to discuss the intellectual merits of free-market and free-association arguments against the ban on private discrimination. But the reminder that 50 years ago, such obscene practices were not only condoned but socially approved in large parts of this country should shock our conscience as Americans. A dispassionate or glib attitude on the subject is not a good way to win people over.

There are two crucial points I want to challenge Young on.


It’s entirely possible that the targeting of private discrimination in the 1964 Civil Rights Act sped up the crumbling of private discrimination against blacks. But there is also evidence that the dismantling of the public (legal) foundations of segregation is all that was needed.

One example is the breakdown of Major League Baseball’s “color line,” which was accomplished by just four men; Jackie Robinson and Brooklyn Dodgers GM Branch Rickey, and Larry Doby and Cleveland Indians Owner Bill Veeck. Baseball was free of legally mandated Jim Crow segregation laws, and this freedom was all these four courageous individuals needed. From 1947 on, baseball progressively integrated despite major cultural bigotry. No forced integration laws were needed.

Rosa Parks offers another angle on the racial progress without violating freedom of association—the legal front. Her defiance challenged a segregation law, and she won. Her Supreme Court victory helped ignite the mid-Twentieth Century Civil Rights Movement, which gained steady public support leading up to the 1964 Civil Rights Act. Her case sought to demolish a forced segregation law, not erect forced integration laws. And that was on the heels of Brown vs. Board of Education, which overturned segregation in the government schools without forcing integration on private schools.

I would argue that the social trend toward racial justice was well under way before 1964. Furthermore, this social progress made possible the Civil Rights Act of 1964, not the other way around. Politics never leads. Politics follows because it is a reflection of social trends. The 1964 Civil Rights Act could not have even been proposed, let alone passed, without major social support. And pass it did, by huge margins: 61% of Democrats and 80% of Republicans voted for the legislation—and some who opposed it, such as Barry Goldwater, voted against it on the same liberty principle upheld by Stossel, not pro segregation grounds. Can anyone seriously claim that that level of congressional support for desegregation and racial justice could have been achieved without popular support?

There is a reason why the Civil Rights Act passed in 1964 rather than earlier: It could never have passed until the culture was ready for it. Desegregation and black voting rights in the South were just as big an issue 20 years earlier. But FDR wouldn't enforce either because that would have threatened his 1944 reelection [Easterly, p.94]. It took two more decades of social activism before politicians deemed it safe to legislate an end to legally imposed segregation and, a year later, pass the Voting Rights Act.

To me, the history of the fight for black political equality proves that rights-violating mandates against private discrimination were not needed. We wouldn’t have even needed the 1964 Civil Rights Act if not for the corrupt 1896 Supreme Court Ruling Plessy v. Ferguson, which set back racial integration for 60 years. Once legal coercion supporting segregation was removed—including the covert kind like police neglect that allowed lynchings and other criminal attacks on blacks to run rampant, “officially sanctioned or condoned harassment and intimidation” of private businesses that “refused to discriminate,” and artificial legal barriers to voting—a now-freer American society in general would have rapidly broken down racial barriers, and any remaining pockets of bigotry and discrimination would have succumbed to enormous social and economic pressure to dissolve, or been marginalized into irrelevance. That the 1964 Civil Rights Act passed at all is proof that the rights of association-violating Title II of that Act—the Injunctive Relief Against Discrimination in Places of Public Accommodation—wasn’t needed.

Progress on both the social and legal fronts was on the move. Full restoration of freedom, including government protection of rights to public protest and boycott, are all that were needed to ignite rapid progress. This is not to deny the “social realities of Jim Crow” or the extent to which  bigotry was “pervasive [and] deeply entrenched in minds and morals” of the culture. But neither should we underestimate the winning power of the convergence of reason, courage, freedom, and principled action.

Which leads to my second, even more important, point:

If Young is going to accuse opponents of anti-private discrimination laws of “a dispassionate or glib attitude,” then the same could be said of her dismissal of the power of principles. She writes:

Yes, post-1964 civil rights law has generated real problems. Legally mandated colorblindness has evolved into legally mandated race preferences to remedy discrimination. Anti-discrimination law has expanded to more and more protected categories, to the point where a gym can be held liable for dismissing a fat fitness trainer.

Curbing these excesses is a worthy goal. But calling for a repeal of the ban on discrimination in the private sector is both utopian and reckless. . .

The expansion of anti-private discrimination law “to more and more protected categories” is a concrete demonstration of the power of principles in action. There is simply no way anyone can argue that government must legally “protect” us from discrimination—i.e., force others to associate with us against their will—based on race but not based on gender, religion, physical or mental capacities, sexual orientation, economic status, or any other category some activist group chooses to come up with. And since discrimination is almost impossible to prove without the ability to read minds—overt discrimination like “No Blacks Allowed” signs is virtually extinct—the only way to “prove” discrimination is through circumstantial evidence like statistics, which leads directly to “legally mandated race preferences” and other types of quotas, like the Title IX gender quotas that are killing men's college sports programs..

Young seems glib about the ease of “curbing these abuses.” But on what grounds can one fight these abuses? There is no way to fight the “abuses” without taking the moral high ground. On what basis does Young claim that blacks are a “protected” group but fat people are not? There is no way to take the moral high ground without zeroing in on the moral principle the “abuses” violate—the right to freedom of association. There is no way to uphold freedom of association while making exceptions based on your own personal preferences. Rights are moral principles, and moral principles, by definition, are inviolable. Once you accept that government may violate freedom of association in one category, however noble the cause, the principle is rendered moot and the rights violations inevitably multiply like malignant cancer cells, even infecting an employer's’ ability to hire. There’s no logical way that you can assert that a black man has the right to force a white merchant to serve him while denying the right of a same-sex couple to force a Christian-owned banquet hall to cater a gay wedding. Either political rights are inalienable, or they are not. Sooner or later, those seeking to “curb” the “excesses” of anti-discrimination laws will have to confront that fact, or the cause is hopeless.

It’s understandable that the black oppressed minority (and many of their supporters) would jump at the chance to take the shortcut of law to end private racial segregation. They waited a long time for justice. But even if we concede that Title II was instrumental in speeding up the progress toward racial equality before the law—indeed, even if we concede that it was a worthwhile temporary measure—we’re still left with the very serious erosion of our inalienable right to freedom of association that is the legacy of Title II. The erosion of our associational liberties cannot be addressed and corrected without overturning all anti-private discrimination laws, especially including Title II of the Civil Rights Act of 1964. And that cannot be accomplished without fighting for the essential principles of individual rights that underpin liberty.

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