The Garden Paths of Ideology

First, I’d like to thank David Bernstein for writing the lead essay this month. I think there are three distinct questions before us:

  1. Did Title II of the 1964 Civil Rights Act help produce a better society?
  2. Is Title II acceptable by my ideological standards?
  3. Is Title II constitutional?

One might say “yes” or “no” to each without influencing how one answered the others. Different results would imply different things about one’s ideology, constitutional theory, and interpretation of American history. I’ll give my answers one at a time.

Did Title II help produce a better society?

Yes.

In the last fifty years, violent, organized racism has shriveled to the political fringe. Blacks’ incomes, while they still lag behind whites’, have soared, and whites’ incomes haven’t suffered. Interracial marriage is legal and increasingly common. And, of course, we now have a black president. The steady collapse of racism is the domestic story of the last fifty years.

Which, though, was the cart, and which was the horse? Did legislation shape public opinion, or vice versa? This relationship is hard to untangle, because the law really can affect individual dispositions, and individual dispositions really can affect the law.

Still, there are good reasons to think that the law was the driving factor here, and that something about this law in particular was important.

I say this because previous efforts to end racial inequality had mostly failed. The Civil War Amendments hadn’t done it, as slavery was replaced by coercive racial peonage. Military occupation of the South failed, as racist whites retook state governments once the troops went home. The Ku Klux Klan Act failed, the victim of an intimidated court system often larded with Klansmen.

Yes, Buchanan vs. Warley and Brown vs. Board of Education were both legal victories, and there were others here and there, but in 1964 the overall edifice of segregation remained all too strong. And then, something really, really big happened.

Yet at the time, Title II seemed potentially very invasive. What if it produced a lot of hassle, but no equality? As Barry Goldwater wrote, the 1964 Civil Rights Act would

require the creation of a federal police force of mammoth proportions. It also bids fair to result in the development of an ‘informer’ psychology in great areas of our national life — neighbors spying on neighbors, workers spying on workers, businessmen spying on businessmen, where those who would harass their fellow citizens for selfish and narrow purposes will have ample inducement to do so. These, the federal police force and an ‘informer’ psychology, are the hallmarks of a police state…

Goldwater’s reasons were noble, and they may have been convincing at the time, but clearly they were misplaced. An informer psychology? Neighbors spying on neighbors? We already had that. Its name was Jim Crow.

We’ll get to Goldwater’s constitutional qualms below, but with the benefit of hindsight, what we got from the 1964 CRA was on balance much, much less coercion. We also got a less racist society, and for that I’m profoundly thankful. The growth of the federal police state was negligible, at least from this particular measure. 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.

Is Title II acceptable by my ideological standards?

Yes.

I’ve been strongly influenced by Friedrich Hayek. By Hayek’s standards, as set forth particularly in Law, Legislation, and Liberty and The Constitution of Liberty, Title II passes every test. Some of these are obvious, but let’s walk through them anyway.[1]

Title II was publicly enacted according to constitutional forms. It was prospective in its application. It treated everyone alike rather than singling out some for special status. No one is allowed to discriminate racially in business, whether black, white, or other, and no one shall experience disfavor because of race.

Imagine that one day blacks, Latinos, Asians, or another minority became the most numerous or politically powerful group in America. Whites, then, would be thankful for the protections of Title II, which would prevent racist cartel behavior from re-emerging. Although this was not the intent of the legislators who passed it, we can see in this possibility one of the hallmarks of Hayekian law: It serves well in a wide range of different settings.

Title II is also simple to state in principle and easily understood. Yes, there are vexing borderline cases, but these are both rare and relatively unimportant. Racial nondiscrimination has become one of the understood, very predictable ground rules for doing business in the United States, and everyone now formulates their expectations accordingly. Property rights in our economic order encompass many other potential courses of action, but not this one. I’m fine with that.

Yes, Hayek does warn us against sweeping social experiments, but by now it should be clear that even if Title II had been a sweeping social experiment, well, somehow we came out okay. It’s an abuse of Hayekian reasoning to raise such concerns now of all times.

What’s more, repealing Title II would be an experiment of exactly the kind Hayek warns against. I think Title II has good effects, but even if I thought it had modestly bad ones, Hayek would urge me to consider letting it stand.

Is Title II Constitutional?

Maybe.

This is the toughest question for me. Logically, it could be that Title II is both good for the country and ideologically kosher, but that it fails constitutionally. This could indicate a defect in our constitution, although I am very reluctant to say so.

But first, let’s note that mainstream jurisprudence is perfectly fine with Title II, justifying it by way of the Commerce Clause. No amount of theorizing appears likely to change matters, whatever we may think of mainstream analysis.

And Title II may yet be constitutionally justified. One argument that I favor runs as follows.

Start with Max Weber’s definition of the state: A state is a monopoly on the legitimate use of violence. Libertarians, including Hayek, have worked within this definition. And — with apologies for anachronism — the American founders believed something similar.

There are, however, many ways of making violence legitimate. Sometimes we legitimize violence with votes, written law, uniforms, oaths, special buildings and ceremonies, and other formal methods. But other times, we may legitimize violence simply by letting it happen — and by making certain that the state always, always looks the other way.

The latter type of violence pervaded the South. I do not mean to grant this violence legitimacy by my standards, but clearly the great majority of southern whites did think it was legitimate, and they held all the political power. As Frederick Douglass once wrote, “What is a State, in the absence of the people who compose it? Land, air and water. That is all.”

The concerted (or coerced) action of all people in a region is state action. At the very least, systematically tolerated, well-organized, unpunished violence is a proper matter for the state to act on, and for federal legislation under the Fourteenth Amendment.

As we’ve noted, many previous attempts to stop this violence had failed. But prohibiting private, racially discriminatory business conduct appears to have worked as a means to the end. The state now consistently treats racist violence as illegitimate.

The cure was radical, but so was the disease. I’m not a constitutional lawyer, and I know that this reasoning might not hold up in court. But it seems no weaker than invoking the Commerce Clause. It also clearly separates this form of federal intervention from interventions elsewhere. The federal government went after businesses here not because it can go after businesses everywhere, but because here, businesses were locked in a system of violence.

Stepping back a bit, it is bizarre and embarrassing to me that this should be the hill that anyone wants to die on in the name of originalism. Why don’t originalists work first in the most fruitful areas, and leave the doubtful ones for later? Originalism is an explanatory theory like any other, and in some places it will be more powerful than others. Originalists should play to their strengths, not to their contrarian impulses.

Consider:

  • Eminent domain seizes millions of dollars of private property every year so that the state can sell it to other private owners. This is unwarranted by the text of the Constitution, and it is contrary to the explicit will of the framers in the debates of their day.
  • Thousands upon thousands sit in prison for nonviolent drug crimes. The Fourth Amendment’s protections against search and seizure, and the general guarantees of limited government power, have been shredded to put them there.
  • The president claims the authority to assassinate U.S. citizens anywhere in the world merely by issuing a directive — a step even George III didn’t take. The previous president brags openly about having used the very same torture methods that we rightly denounced the Soviet Union for.

We fought a revolution for much less than what we’re suffering today. And we’re worried about Title II?

I am reminded that by the letter of the law, the Air Force is also unconstitutional. The Constitution says not a word about it. But arguing about that only makes you look silly. Arguing about Title II makes you look evil, and it ruins your chances to achieve originalist goals everywhere else.

Originalists, I consider you my ideological neighbors, so I implore you, please stop. Such complaints are more suited to overcaffeinated undergrads who have just discovered the garden paths of ideology. Students both need and deserve arguments like these, and they are helpful in their place. But advocates of limited government have scant political capital, so let’s not squander it.

Jason Kuznicki is a research fellow at the Cato Institute and managing editor of Cato Unbound.

Note

[1] Yes, Hayek might just be the squishiest of libertarian thinkers. But this is because many of Hayek’s policy proposals don’t sit well with his general principles. Policies like military conscription and housing subsidies — which Hayek allowed — flunk his very own tests. Not so with racial nondiscrimination, I argue.

Also from This Issue

Lead Essay

  • Context Matters: A Better Libertarian Approach to Antidiscrimination Law by David E. Bernstein

    In this month’s lead essay George Mason University professor of law David E. Bernstein argues that libertarian opposition to antidiscrimination law generally makes sense because the current notion of legally impermissible discrimination is so expansive. He writes: “To concede the general power of government to redress private discrimination through legislation would be to concede virtually unlimited power to the government.” However, Bernstein argues that libertarians can accept antidiscrimination law as long as it conforms to an appropriate limiting principle and goes on to argue that Title II of the Civil Rights Act fits the bill. “Many libertarians today, including me, think our predecessors were wrong in their blanket opposition to such laws, in part because they neglected some of the legal and historical context.”

Response Essays

  • Context-Keeping and Community Organizing by Sheldon Richman

    In his reply essay, The Freeman’s Sheldon Richman drives home David Bernstein’s point “that the Southern states operated the equivalent of a ‘white supremacist cartel’ in public accommodations,” but suggests that “direct nonviolent social action” would have been superior to a legal remedy. “Social pressure – the public shaming of bigots – was working,” Richman argues. Title II was not only unnecessary, Richman says, but it shifted the focus from local nonviolent action to Washington, D.C., and laid the groundwork for further clearly unjustified legal limits on private discrimination.

  • What Matters Are Consequences, Not Context by Jeffrey Miron

    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 safety 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.”

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