June, 2010

Restrictive Covenants: Rule by the Dead Hand of the Past

by Sheldon Richman
The Conversation
June 29th, 2010

Many concerns could be raised about racially restrictive deed covenants and the State, including:
1) the risk of defining “private action” out of existence;
2) the risk of the slippery slope (what other agreements might the State decide not to enforce?); and
3) the question whether enforcement or non-enforcement becomes a matter of public policy [...]

Read: Restrictive Covenants: Rule by the Dead Hand of the Past

Shelley v. Kraemer: A Correct, but Limited Opinion

by David E. Bernstein
The Conversation
June 29th, 2010

Jason Kuznicki writes the following in support of Shelley v. Kraemer, in which the Supreme Court held that judicial enforcement of racially restrictive covenants was unconstitutional: “If we’re willing to accept that state action to enforce a contract remains state action all the same, then Shelley isn’t such a leap after all, and the supposedly [...]

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A Note on Shelley v. Kraemer

by Jason Kuznicki
The Conversation
June 28th, 2010

Commenters at The Volokh Conspiracy have been asking us for comment about the controversial case Shelley vs. Kraemer (1948).  This case concerned racially restrictive (though nominally private) contracts for property transfer.
Suppose, as happened in Buchanan v. Warley, that the U.S. Supreme Court invalidated government-crafted racial zoning laws.  And suppose [...]

Read: A Note on Shelley v. Kraemer

“You Haven’t Freed Nobody”

by Sheldon Richman
The Conversation
June 26th, 2010

David Bernstein remains unconvinced that a massive nonviolent direct-action movement could have broken the Southern white-supremacist business cartel without Title II. We’ll never know, of course. But we do know that incredible progress was being made. Yes, the national department-store chains, such as Woolworth’s, were desegregating their lunch counters under pressure from the student [...]

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Discrimination and the Growth of the Government

by Jason Kuznicki
The Conversation
June 25th, 2010

David Bernstein writes that my reaction essay showed “no noticeable qualms about the vast expansion of the antidiscrimination edifice since 1964.” As the saying goes, absence of evidence isn’t evidence of absence. I do have qualms about these laws, but I wouldn’t lay the blame for them so squarely on Title II.
I also [...]

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Reply to Richman, Miron, and Kuznicki

by David E. Bernstein
The Conversation
June 24th, 2010

Thanks to Cato for prompting this interesting discussion.
Jason Kuznicki agrees with me that Title II of the 1964 Act was appropriate from a libertarian perspective. Unlike me, however, he expresses no noticeable qualms about the vast expansion of the antidiscrimination edifice since 1964.
Perhaps he has such qualms, but chose instead to focus on Title [...]

Read: Reply to Richman, Miron, and Kuznicki

What Matters Are Consequences, Not Context

by Jeffrey Miron
Reaction Essay
June 23rd, 2010

Harvard economist Jeffrey Miron vigorously dissents from the conclusion of David Bernstein’s lead essay. “[L]ibertarians should not only oppose Title II,” he writes, “they should shout that opposition from the highest roof tops.” Miron argues that the elements of the Civil Rights Act that targeted government discrimination would have sufficed: “[A]CRA that merely targeted government discrimination would likely have changed the social norm, allowed non-discriminatory forces to emerge, and toppled the Jim Crow regime.” The primary consequences of Title II, Miron argues, were to weaken property rights and set the stage for further interventions such as smoking bans and saftey regulations, while “institutionalizing the view that blacks are too weak to overcome discrimination on their own.” Miron finds the libertarian case against Title II so strong that he is surprised to see libertarians defend it. “[I]f libertarians are supporting Title II out of political expediency, they are on a fool’s errand.”

Read: What Matters Are Consequences, Not Context

The Garden Paths of Ideology

by Jason Kuznicki
Reaction Essay
June 21st, 2010

In his reply to this month’s lead essay, Cato Unbound’s own Jason Kuznicki argues that “what we got from the 1964 CRA was on balance much, much less coercion. We also got a less racist society…I can’t say exactly why the 1964 CRA worked, but I suspect that Title II, as its most innovative feature, played a big part.” Not only did Title II work, Kuznicki finds it perfectly consistent with his own Hayekian ideological standards. Kuznicki then asks if Title II is Constitutional and expresses some doubts, but implores originalists to focus their energies elsewhere. “[A]dvocates of limited government have scant political capital, so let’s not squander it,” he concludes.

Read: The Garden Paths of Ideology