What Matters Are Consequences, Not Context

Should libertarians support Title II of the 1964 Civil Rights Act? David Bernstein believes they should. David’s position is understandable, and his arguments are well-crafted. But libertarians should not only oppose Title II; they should shout that opposition from the highest roof tops.

The essence of Bernstein’s position is that discrimination in the pre-1964 South did not consist merely of actions by purely private actors, like employers or restaurant owners. It also consisted of an explicitly racist legal regime that mandated discrimination in education, public accommodations, transportation, and more, as well as implicit government backing for extra-legal actions taken by private citizens (who were themselves often police or other government officials) against both whites and blacks who tried to deviate from the discriminatory regime.

Bernstein then argues that the federal government had two choices for ending Jim Crow: federal laws invalidating state and local Jim Crow laws, or a federal law banning discrimination, i.e., Titles II and VII of the CRA.

The fact that Jim Crow was a government imposed and supported system is undeniable. But Bernstein’s prescription for ending Jim Crow is off the mark.

To begin, Title II is a bald-faced assault on a principle that libertarians hold dear: that private property is private. This means libertarians should be incredibly suspicious of Title II and insist on an overwhelming case before violating this principle. No such case exists.

Bernstein’s argument is also suspect because he asserts, rather than demonstrates, that restricting federal actions to overturning Jim Crow laws – roughly, the goal of Titles I and III-VI – would not have been sufficient to break Jim Crow. Yet much of the South was unenthusiastic about Jim Crow, whether for noble reasons or self-interest, so 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.

This is exactly what occurred in some instances, such as integration of state universities. Plus, as Sheldon Richman rightly emphasizes, purely private mechanisms, from boycotts to migration of blacks from the South to the North, were putting real pressure on Jim Crow independent of government efforts.

Even if these problems with Bernstein’s perspective are ignored, moreover, Title II was bad policy because it generated a range of undesired consequences that libertarians presumably abhor.

By violating the principle that private property is private, Title II created a precedent for other policies that violate property rights and have far less justification than Title II.

One example is smoking bans in restaurants. If the law views these establishments as entirely the property of their owners, it is hard to defend laws that ban smoking since non-smoking customers are not required to frequent any particular restaurant. If the law turns restaurants into “public accommodations,” however, then restaurants become places where the law can impose public health concerns and where customers have “rights,” other than just choosing not to frequent the restaurants they do not like.

Similar considerations apply to occupational health and safety regulation. So long as any workplace is the private property of the owner, it is difficult to defend rules about safety equipment, hours of work, and so on. These are concerns only for employers and their employees. Once workplaces are somehow “public,” the door is open for the state to pursue various goals that libertarians find objectionable. Mandatory maternity leave is a good example.

Most relevant to the civil rights debate, treating businesses as partially public sets the stage for government bans on private affirmative action. Yet reverse discrimination practiced by private parties is a crucial way that markets, not government, can limit the negative impact of discriminatory preferences exhibited by some restaurants owners and employers.

A different negative consequence of Title II is institutionalizing the view that blacks are too weak to overcome discrimination on their own. This is not just insulting; it is counter-factual. Private actions like boycotts and migration were undermining Jim Crow before the Civil Rights Act, and this process would have continued. In the North, where governments did not (generally) impose discrimination, blacks were succeeding on their own even more. Under the CRA and its sequelae such as affirmative action, however, many people view black success with suspicion because it might have been generated by federal law.

Title II also eliminates “transparency,” meaning the ability for everyone, black or white, to know who is racist and who is not. In response to a post on the Rand Paul Incident, one of my blog readers wrote the following:

I agree wholeheartedly that he [Paul] should have stood his ground and explained why his view is not a racist view, but that it, in fact, supports ones humanity.

The last thing that I would want to do is to spend money at an establishment that did not want me. By passing a law that eliminates transparency, I, as a black man, lose the ability to discern who wants my business and who does not. Wouldn’t it be better for people to patronize businesses that desire their business? I definitely believe so.

The commenter makes an excellent point; by requiring non-discrimination, Title II makes it easier for racist whites to take money from blacks.

Thus whether or not the CRA had the beneficial impact of breaking the discriminatory social norm that existed under Jim Crow — and any such effect is easily overstated, since norms were changing before CRA — it has other effects on social norms that are plausibly worse. Since private mechanisms, and federal actions against Jim Crow laws, would have generated the gains achieved by blacks anyway, Title II means we are stuck with the bad effects on social norms while getting only passing benefit from the (alleged) good effect.

The most stunning aspect of the Rand Paul episode is not that Paul voiced objections to the CRA, nor that he backtracked once the political firestorm erupted.

The most surprising aspect, instead, is how many libertarians have voiced support for the CRA in the aftermath. The exact reasons for libertarian support are not clear, but it seems many libertarians have concluded that, whatever they believe in their guts, opposition to the CRA is so incendiary that libertarians must find a way to make peace with it. Thus they have trotted out arguments about historical context and social norms to defend a position that seems antithetical to everything libertarians believe.

Libertarians are, of course, free to believe whatever they wish about the CRA. Perhaps many find the historical context and social norm arguments convincing, although I suspect they would be skeptical of such arguments in other contexts.

But if libertarians are supporting Title II out of political expediency, they are on a fool’s errand. Libertarians are never going to be widely popular or get elected in significant numbers; we hold far too many positions that are anathema in the political arena.

What libertarians can do is attempt to keep both sides honest. That means sticking to our principles no matter how awkward that might be.

 

What Matters is Consequences, not Context

By Jeffrey Miron

June 23, 2010

Reaction Essay

 

Should libertarians support Title II of the 1964 Civil Rights Act? David Bernstein believes they should. David’s position is understandable, and his arguments are well-crafted. But libertarians should not only oppose Title II; they should shout that opposition from the highest roof tops.

The essence of Bernstein’s position is that discrimination in the pre-1964 South did not consist merely of actions by purely private actors, like employers or restaurant owners. It also consisted of an explicitly racist legal regime that mandated discrimination in education, public accommodations, transportation, and more, as well as implicit government backing for extra-legal actions taken by private citizens (who were themselves often police or other government officials) against both whites and blacks who tried to deviate from the discriminatory regime.

Bernstein then argues that the federal government had two choices for ending Jim Crow: federal laws invalidating state and local Jim Crow laws, or a federal law banning discrimination, i.e., Titles II and VII of the CRA.

The fact that Jim Crow was a government imposed and supported system is undeniable. But Bernstein’s prescription for ending Jim Crow is off the mark.

To begin, Title II is a bald-faced assault on a principle that libertarians hold dear: that private property is private. This means libertarians should be incredibly suspicious of Title II and insist on an overwhelmingly case before violating this principle. No such case exists.

Bernstein’s argument is also suspect because he asserts, rather than demonstrates, that restricting federal actions to overturning Jim Crow laws – roughly, the goal of Titles I and III-VI – would not have been sufficient to break Jim Crow. Yet much of the South was unenthusiastic about Jim Crow, whether for noble reasons or self-interest, so 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.

This is exactly what occurred in some instances, such as integration of state universities. Plus, as Sheldon Richman rightly emphasizes, purely private mechanisms, from boycotts to migration of blacks from the South to the North, were putting real pressure on Jim Crow independent of government efforts.

Even if these problems with Bernstein’s perspective are ignored, moreover, Title II was bad policy because it generated a range of undesired consequences that libertarians presumably abhor.

By violating the principle that private property is private, Title II created a precedent for other policies that violate property rights and have far less justification than Title II.

One example is smoking bans in restaurants. If the law views these establishments as entirely the property of their owners, it is hard to defend laws that ban smoking since non-smoking customers are not required to frequent any particular restaurant. If the law turns restaurants into “public accommodations,” however, then restaurants become places where the law can impose public health concerns and where customers have “rights,” other than just choosing not to frequent the restaurants they do not like.

Similar considerations apply to occupational health and safety regulation. So long as any workplace is the private property of the owner, it is difficult to defend rules about safety equipment, hours of work, and so on. These are concerns only for employers and their employees. Once workplaces are somehow “public,” the door is open for the state to pursue various goals that libertarians find objectionable. Mandatory maternity leave is a good example.

Most relevant to the civil rights debate, treating businesses as partially public sets the stage for government bans on private affirmative action. Yet reverse discrimination practiced by private parties is a crucial way that markets, not government, can limit the negative impact of discriminatory preferences exhibited by some restaurants owners and employers.

A different negative consequence of Title II is institutionalizing the view that blacks are too weak to overcome discrimination on their own. This is not just insulting; it is counter-factual. Private actions like boycotts and migration were undermining Jim Crow before the Civil Rights Act, and this process would have continued. In the North, where governments did not (generally) impose discrimination, blacks were succeeding on their own even more. Under the CRA and its sequelae such as affirmative action, however, many people view black success with suspicion ‘because it might have been generated by federal law.

Title II also eliminates “transparency,” meaning the ability for everyone, black or white, to know who is racist and who is not. In response to a post on the Rand Paul Incident, one of my blog readers wrote the following:

I agree wholeheartedly that he [Paul] should have stood his ground and explained why his view is not a racist view, but that it, in fact, supports ones humanity.

The last thing that I would want to do is to spend money at an establishment that did not want me. By passing a law that eliminates transparency, I, as a black man, lose the ability to discern who wants my business and who does not. Wouldn’t it be better for people to patronize businesses that desire their business? I definitely believe so.

The commenter makes an excellent point; by requiring non-discrimination, Title II makes it easier for racist whites to take money from blacks.

Thus whether or not the CRA had the beneficial impact of breaking the discriminatory social norm that existed under Jim Crow– and any such effect is easily overstated, since norms were changing before CRA – it has other effects on social norms that are plausibly worse. Since private mechanisms, and federal actions against Jim Crow laws, would have generated the gains achieved by blacks anyway, Title II means we are stuck with the bad effects on social norms while getting only passing benefit from the (alleged) good effect.

The most stunning aspect of the Rand Paul episode is not that Paul voiced objections to the CRA, nor that he backtracked once the political firestorm erupted.

The most surprising aspect, instead, is how many libertarians have voiced support for the CRA in the aftermath. The exact reasons for libertarian support are not clear, but it seems many libertarians have concluded that, whatever they believe in their guts, opposition to the CRA is so incendiary that libertarians must find a way to make peace with it. Thus they have trotted out arguments about historical context and social norms to defend a position that seems antithetical to everything libertarians believe.

Libertarians are, of course, free to believe whatever they wish about the CRA. Perhaps many find the historical context and social norm arguments convincing, although I suspect they would be skeptical of such arguments in other contexts.

But if libertarians are supporting Title II out of political expediency, they are on a fool’s errand. Libertarians are never going to be widely popular or get elected in significant numbers; we hold far too many positions that are anathema in the political arena.

What libertarians can do is attempt to keep both sides honest. That means sticking to our principles no matter how awkward that might be.

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.

  • The Garden Paths of Ideology by Jason Kuznicki

    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.

The Conversation