Reply to Richman, Miron, and Kuznicki

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 II. I guess we’ll find out. But I’m troubled by his “Hayekian” defense of Title II, to wit: “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.”

These standards could be used to justify not just Title II, but a law that, for example, states that “henceforth all employers must treat all employees fairly and without discrimination based on the employees’ membership in any identifiable group.” They could also be used to justify draconian hate speech laws of the sort that are increasingly common in other Western democracies.

Kuznicki argues that to the extent libertarians had potentially valid objections to Title II, their concerns have, in restrospect, turned out to be mistaken. But surely libertarians can’t replace their strong presumption against government intervention in the private sector with a “well, let’s try it, and see how it turns out,” mentality. For every successful government experiment like Title II, there are going to be dozens of disasters. And Kuznicki fails to address at least one significant cost of the success of Title II: in many states, public accommodations laws have spread from their original, limited scope to regulating the membership policies of private organizations, with potentially ruinous results for civil society.

In short, I think Kuznicki would do better to ground his defense of Title II in the historical context I set forth in my essay, rather than in his understanding of Hayek.

Sheldon Richman writes that “David Bernstein makes the strongest libertarian case I can imagine for Title II of the Civil Rights Act of 1964,” and I appreciate the compliment. Richman then goes on not only to agree with me that “the Southern states operated the equivalent of a ‘white supremacist cartel’ in public accommodations,” but to elaborate on the point in great detail.

Richman nevertheless argues that Title II was a bad idea. He suggests that private nonviolent action would have been effective at breaking the South’s racist cartel. Instead, the passage of the 1964 Civil Rights Act led to the transformation of a largely grass-roots social movement into a political movement that became a typical special interest lobbying force.

I’m dubious about the first point. Non-violent resistance had, indeed, led to the desegregation of lunch counters, especially in chains that worried about northern public opinion, and in big cities. But it’s also true that around the same time, “freedom riders” were being severely beaten and abused in small towns across the South, with the connivance or participation of local officials, for daring to try to desegregate interstate buses. And I’d suggest that what happened to the freedom riders was more indicative of the challenges faced by social activists than were the successes achieved by the sit-ins. After all, only about 20% of white southerners supported desegregation in 1964, and a century of evidence suggests that they were willing to use violence and intimidation to maintain Jim Crow.

In any event, libertarianism is a philosophy about the role of government in society, but I don’t think libertarians need to be committed to pure political pacifism. If state and local governments are participating in and nurturing a racist cartel, it seems perfectly “libertarian” to resort to the next level of government, in this case the federal government, to resolve the problem. Admittedly, lodging authority with the federal government potentially creates its own problems. But I think it’s even more problematic to expect social activists to risk life and limb to overturn an unjust system.

One question Richman doesn’t raise, but I’ll raise here: to what extent would the Voting Rights Act, passed in 1965, have broken the southern racist cartel without the additional interventions of the 1964 Act?

Jeffrey Miron’s response proceeds from libertarian theory, and never advances beyond that. He acknowledges that libertarians like myself have raised issues of historical context, but then proceeds to completely ignore such context. Instead, he treats the issue of discrimination in places of public accommodation as a purely private property right, ignoring the laws, violence, and harassment that underlay Jim Crow. Moreover, as I pointed out in my essay, Anglo-American common law held for centuries that many places of public accommodation must serve all comers. The idea that any public accommodation, including even common carriers like trains, could be allowed, much less forced, to discriminate based on race was a post-Civil War innovation motivated not by respect for property rights, but by racist hostility to the freedmen.

Congress originally required nondiscrimination in places of public accommodation not in 1964, but in the 1875 Civil Rights Act. The goal was to guarantee full citizenship to the freedmen, who were being deprived of their common-law right of equal access to public accommodations. The authors of the law were Congressional radical Republicans, whose views were far closer to libertarianism than anything we have seen from Congress since.

The Supreme Court invalidated the law because the Court found that the law was beyond Congress’s remedial powers under the Thirteenth and Fourteenth Amendment. What the Court did not suggest, however, was that the law in any way interfered with property rights. In fact, the Court noted, apparently approvingly, that “innkeepers and public carriers, by the laws of all the States, so far as we are aware, are bound, to the extent of their facilities, to furnish proper accommodation to all unobjectionable persons who in good faith apply for them.” To the extent that a property rights argument arose in this litigation at all, it was made by African American litigants who claimed that Congress was vindicating their common law rights.

In short, while requiring nondiscrimination in places of public accommodation may, in some circumstances, violate certain theoretical libertarian notions of property rights, property rights as they actually existed in the Anglo-American tradition did not include the right of owners of hotels, restaurants, trains, steamboats, and the like to exclude whomever they pleased. To the contrary, the public was thought to have its own right of access to such facilities.

These rules coexisted for centuries without smoking bans, health and safety regulations, and other violations of property rights that Miron seems to think were prompted by Title II. I would say that the correlation between Title II and other forms of property regulation is tenuous at best; to the extent it exists, though, it’s because supporters of such regulation have gotten away with characterizing Title II as a run-of-the-mill regulation of property, when it is to a large extent a vindication of the original common law property system that was distorted by racist judges and legislators.

One legitimate concern, raised also by Jason Kuznicki, is that the Supreme Court’s approval of the 1964 Civil Rights Act as a regulation of interstate commerce was the final nail in the coffin of the idea that Congress’s powers are limited and enumerated. The Court’s commerce clause ruling was a travesty, though it followed logically from equally atrocious rulings in the late 1930s and early 1940s.

The government instead should have argued the Court’s earlier 1883 decision was incorrect. Rather, Justice John Marshall Harlan’s dissent was correct in arguing that Congress had the power to protect African Americans from discrimination under either Section 2 of the Thirteenth Amendment, or Section 5 of the Fourteenth Amendment, as Randy Barnett explains here. Not only would this have been a better constitutional argument, but it would have provided a limiting principle: Congress can regulate private property to redress African Americans’ constitutional grievances created by, or under color of, state law.

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.

  • 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.”

The Conversation