Tuesday, June 7, 2011

Title 2: Government vs. Private Action

Inspired by a recent correspondence on this blog, I'll return to a subject that I began to address in 2010; Title II of the 1964 Civil Rights Act. A further reason to return to this subject is the entrance into the 2012 GOP presidential primary race of Ron Paul, father of Kentucky's US Senator Randal Paul. Senator Paul, you may recall, set off a firestorm with his opposition to Title II, which opens with:

SEC. 201. (a) All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, and privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.

The issue of Title II is likely to be raised again once the presidential contest gets going in earnest. The Left will undoubtedly attempt to cash in with a smear campaign. If so, bring it on. As I’ve said, it is an issue best engaged in at a later time. But it is an issue that must be engaged in by the Right – if by “Right” one means laissez-faire – sooner or later.

This post will center around a comment made relating to a video of an O'Reilly Factor segment, O'Reilly takes apart Stossel's Civil Rights Act comments.
Christopher Howard posted:

“I notice how Stossel continued to pretend that Jim Crow racism was only about the government and not about corporate and private entities (Woolworths, bus companies, restaurants), as well as by individuals. It wasn't the government who murdered Emmett Till. It was endemic to the very fabric of society, with pillars of the community attending lynchings.”

There is a huge difference between government and private action; i.e., between political and economic power. It is the difference between a gun and an argument. Government is legalized physical force. Jim Crow has no coercive power except when it is enforced by governmental coercion. Private economic power (Woolworths, bus companies, restaurants, to use Howard's examples) relates to the sphere of productive endeavors. Economic power is necessarily very delimited to the individual's (or his company's) affairs, and have no power beyond it. As another correspondent observes, "a business that decides to discriminate would fail, [while] businesses who do not discriminate would be successful. Not only would they have a wider customer base, but they would draw customers who are offended by such discrimination." Government power has unlimited scope, as it can compel any number of private actions to conform to its dictates. A business owner can refuse to serve blacks, but it cannot compel other businesses to do the same, nor forbid the establishment of competing non-discriminatory businesses. Only the power of law - governmental action - can do that.

Without the power of laws, private segregation is not a violation of anyone’s rights. Individual rights, properly understood, stands on the principle of the non-initiation of physical force. The basic right – the right to life – is essentially the right to act according to your own judgement in pursuit of your own self-interest. The only means of violating another’s right to life – the right to freedom of action – is to initiate force. (Force initiation includes indirect coercion, such as fraud and breech of contract, whereby the victim is separated physically from his property under false pretenses – which is basically no different from armed robbery.) Without force, racial discrimination in private establishments of “public accommodation” is simply some ignorant person exercising the same rights as everyone else on his own property, albeit in an abhorrent way. It can certainly be offensive or hurtful. Offensive and hurtful people are, unfortunately, part of the social fabric. The freedom to act does not guarantee rational action, but that you can act free from physical compulsion. As long as all people are free to act, however, irrational people will inevitably be subject to isolation and reduced to harmlessness.

Everyone agrees that the private initiation of force – armed robbery, fraud, murder, breaking and entering, etc. - is wrong, whatever the reason, and should be punishable by law. But there is a gimmick available to enable men to make an end run around the moral law that private citizens must abide – employ the mechanism of government’s legal monopoly on physical force in order to act as criminal, and get away with it – i.e., through legislative law-making powers. Only a government constitutionally constrained by the principle of individual rights can block that end run.

Jim Crow laws empowered private segregaters by legally shielding them from the powerful tool of economic competition, public protest, and social ostracism. Remove governmental enforcement of segregation, and the private segregaters lose their protection and fall like dominoes. No business can thrive or grow or stay large for long by chasing customers or talented potential employees away – especially when people sympathetic to the victims of the store’s policy would also stay away. The few bigots that may remain become pitiful, harmless pariahs of society. But they have as much right to exclude a customer as any customer has to bypass his business. Remove force, and racism becomes an inconsequential absurdity, unable to squelch the forces of enlightenment from flourishing around it.

The only moral way to fight private segregation is through the powerful tools of the First Amendment - boycotts, publicity campaigns, non-violent non-obstructive public protests, and old-fashioned logical persuasion – as well as economic competition. Jackie Robinson and the Dodger organization broke the color barrier without threatening our freedom - i.e., without governmental coercion - and we’re all better off for his heroism. Segregation was soon swept away throughout baseball, even though bigotry lingered in the hearts of many baseball professionals long after the color barrier was broken. That is the way free people fight private injustice. Attacking the rights to hold and live by one’s own ideas, freedom of association and disassociation, and property rights is the road to tyranny. Those rights must be protected for all people, or all lose them.

Now let's take a look at another heroic American. Rosa Parks challenged segregation sanctioned and enforced by law in Montgomery, Alabama, in 1955. After she refused to heed an order issued by the driver of the bus she was a passenger on, "The bus driver then proceeded to call the police, who subsequently arrested Rosa." Why shouldn't the police be involved in this private dispute? After all, do I not argue that a business owner or his representatives have a right to segregate? Rosa refused to comply with the rules established by the property owner, so the police were abliged to protect the owners' rights by escorting her off of the bus. After all, she was on private property, right? Well, not quite: "It is important to note here that in 1900, the city of Montgomery, Alabama had passed a city ordinance that allowed drivers to segregate their passengers by race. If necessary, they could assign specific seats." It is also important to note that the city of Montgomery had only one bus line - the city-owned one. No other bus lines were permitted. In other words, there was no chance for economic competition by non-segregated lines. It is also important to note that the city-owned monopoly was contractually operated by a private bus company that had already eliminated segregation on its own in response to public pressure (a boycott by blacks and their sympathizers). The Associated Press, via The Montgomery Advertiser, said in reporting on the ensuing court challenge seeking "an injunction to stop the city and state from enforcing ... anti-race mixing laws":

Montgomery City Lines, Inc., a privately owned carrier which operates the city's only bus service, has already abandoned segregation for its part. Its drivers have been ordered to refrain from separating white and Negro passengers.

The City of Montgomery has asked Circuit Judge Walter B. Jones in circuit court for an injunction to compel the bus company to rescind the integration order.

So here we have a private company - whether on principle, economic necessity, or both - taking voluntary action to end an injustice, and the government whose constitutionally mandated job it is to protect its right to do so acting to legally force it to act against its own rational judgement.

Here is proof that public pressure and non-violent, non-rights violating private action can score significant victories. We have further proof of how injustice is essentially powerless against concerted moral action, until and unless it is backed by force, i.e., law. To top it off, we further see here that private cultural trends against segregation and racism drives legal changes, not the other way around. Remember that we are dealing here with the seminal private action that ignited the mid twentieth century civil rights movement - a movement that led to the enactment of the 1964 Civil Rights Act. I made these significant points in my opening essay on the subject.

As for the reference to murderers and mobs, it is the government’s job to protect us from them, and prosecute the thugs - not dictate how we live our lives. It's not the government that murders the store clerk in any convenience store robbery, either. But if the government "looks the other way" and allows violent predators to flourish without consequence, then predation will become "endemic to the very fabric of society". A civil society requires objective laws, objectively and equally applied, that protect individual rights of all. That is the answer – the only answer - to injustice.

No, there is no need "to pretend that Jim Crow racism was only about the government and not about corporate and private entities". But neither can you pretend that the seeming power of Jim Crow racism was anything but an extension of government power. In this fundamental respect, Jim Crow racism was "only about the government and not about corporate and private entities". Jim Crow laws applied not only to public facilities, but to the private sector as well. Legally enforced private segregation in transportation, housing and other private businesses abounded.

This is not to say that private parties didn't act to segregate independent of direct government action. It is to say that the overturning of state sanctioned and enforced segregation was all that would have been needed to wipe away any meaningful remnants of racial segregation. Immorality and irrationality cannot win over reason and morality in a fully free society where all rights are equally protected. "Morality ends where a gun begins", and so does reason. Take away the gun, and reason and morality win in the long run.

Never underestimate the power of law to affect private behavior. Jim Crow laws morally empowered those in the private sector who favored segregation, and morally disarmed their opponents. Indeed, in Brown v. Board of Education, the case that overturned the Plessy decision, the US Supreme Court agreed, saying "The impact of segregation is greater when it has the sanction of law." I would argue much greater. It's noteworthy that in that case, the court did not overturn private, voluntary segregation. Decision-making in private businesses not directly subject to legally enforced segregation had to be influenced by the legal atmosphere. We saw a similar effect in regards to the financial crisis, where - after decades of adherence to sound market-derived lending standards established home mortgages as one of the safest loans around - political "affordable housing" policies led to quick-buck artists gaining the upper hand within many private mortgage lending firms. It was only after the government explicitly sanctioned lower lending standards and then rigged the system in favor of them that the financial crisis exploded. Prior to that, quick-buck artists were an inconsequential piece of the mortgage loan business. (See my links to this subject under the left sidebar heading "Of Special Interest", and also Thomas Sowell, Housing Boom and Bust, pp 101-121.)

In summary, the crucial distinction between government and private action must be understood. Segregation and bigotry are evils that were empowered by government force. The cultural tide was turning against both for years and decades prior to the enactment of the 1964 Civil Rights Act. It is that social pressure that made the passage of the Act possible. Once all vestiges of legalized segregation – force - were removed, that pressure would have finished the job in the private sector without Title 2. As I stated in my post of 8/10/10, “That the 1964 Civil Rights Act passed with overwhelming bipartisan congressional– which necessarily means popular – support (Republican – 80%, Democrat 64%) is my proof of that.”


mike250 said...

I think one problem that also presents itself here is that people cannot differentiate between the immoral and the illegal. all violations of rights are deeply immoral but not all immoral actions are violations of rights.

so while private segregation is immoral it certainly should not be illegal because nobody has a right to trade with those who don't want to trade with him.

Mike Zemack said...

This is very true. The proper purpose of law is to protect our rights, including the right to live by our own moral code – a right that is conditional on the obligation to respect the rights of others to do the same. Title 2 and all such laws that seek to legislate private morality fails on both counts.