David Bernstein makes the strongest libertarian case I can imagine for Title II of the Civil Rights Act of 1964. His key point—which I fully embrace—is that the Southern states operated the equivalent of a “white supremacist cartel” in public accommodations. At the risk of making my assignment as critic more difficult for myself, I’d like to elaborate this point.
Standard libertarian criticism of Title II, which prohibits racial discrimination in public accommodations, appears to treat the targeted restaurants and hotels as purely private businesses that, however odious their racial policies, were unjustifiably imposed on by government policies that violated private property rights. But this account misses something crucial. Outwardly those businesses looked like private enterprises, but the substance was different. As Bernstein points out, the social-legal environment in the pre-1964 South, when Jim Crow reigned, was hardly what any libertarian would envision as a laissez-faire environment. Rather, the region was in the grip of a pervasive social system based on white supremacy—one enforced by formal government rules, discretionary official decision-making, and extralegal measures, ranging from social pressure all the way to violence that was countenanced and even participated in by government officials.
A racially liberal entrepreneur who sought to compete next door to a segregated restaurant in the downtown of a Southern city would have been in for a difficult time. How would the city’s zoning, licensing, and building-code authorities have reacted? How inclined would they have been to find myriad reasons why that restaurant wasn’t qualified to operate? Assuming the restaurateur overcame those obstacles, mightn’t he have had trouble buying equipment and food from suppliers once they had been visited by the local White Citizens’ Council, sometimes known as the “white-collar Klan”? The WCC might also have had something to say to prospective employees. If that form of persuasion didn’t suffice, the actual Ku Klux Klan would have been available for nocturnal assignments. Property damage and physical intimidation might have been used to persuade the agitator not to upset the town’s “way of life,” which, up until then, was perfectly satisfactory. No need to call the cops; they were probably there already.
Any libertarian would object if a municipal fire department had a policy of ignoring burning homes in the black part of town. If the municipality contracted out its firefighting services to a “private” company with the same racial policy, libertarians would similarly object on grounds of equality under the law. They would not be fooled by the mere façade of private enterprise. Form does not alter substance. But that would also be true for the white-supremacist cartels that operated public accommodations throughout the South. So libertarians should not regard those businesses as mere private enterprises.
The key to understanding this matter is what libertarian scholar Chris Matthew Sciabarra calls dialectics, or context-keeping. As he wrote in The Freeman, “Society is not some ineffable organism; it is a complex nexus of interrelated institutions and processes, of volitionally conscious, purposeful, interacting individuals—and the unintended consequences they generate.” Thus dialectics “counsels us to study the object of our inquiry from a variety of perspectives and levels of generality, so as to gain a more comprehensive picture of it. That study often requires that we grasp the object in terms of the larger system within which it is situated, as well as its development across time. (Emphasis added.)
Applying Sciabarra’s principle, we can see that racial discrimination at particular “private” Southern lunch counters and hotels before 1964 cannot be judged apart from the “larger system within which it is situated.” The full context must be kept in view.
Ironically, an example of dialectical thinking, albeit applied to bank regulation, is provided by Rep. Ron Paul, father of Rand Paul, whose rejection (before his acceptance) of Title II prompted the recent controversy. In 1999 the elder Paul opposed repeal of a key section of the New Deal-era Glass-Steagall Act, which separated commercial from investment banking. Considering Ron Paul’s commitment to a free market, his opposition to repeal of an intervention might seem illogical. Yet he opposed it because “This increased indication of the government’s eagerness to bail out highly-leveraged, risky and largely unregulated financial institutions bodes ill for the … future as far as limiting taxpayer liability is concerned.” Paul was thinking dialectically: Removing a restriction from a form of business that enjoys government privileges is not necessarily a libertarian move. Context is crucial.
By the same token, Professor Bernstein argues that imposing a restriction on a form of business that enjoys government privileges is not necessarily an unlibertarian move. Again, context is crucial.
So does this mean that Professor Bernstein is right that libertarians ought to have supported Title II in 1964? I don’t think so.
Professor Bernstein seems to reluctantly accept Title II only because a “massive federal takeover of local government to prevent violence and threats against, and extralegal harassment of, those who chose to integrate” would have been “completely impractical.” Undoubtedly so.
But why does that exhaust the options? Why assume government is the only salvation? That’s an odd position, indeed, for a libertarian. Professor Bernstein does not so much as mention another strategy for ending racial discrimination in public accommodations: direct nonviolent social action by the people affected and those in sympathy with them.
We can’t dismiss that as impractical because it had been working several years before Title II was enacted. Beginning in 1960 sit-ins and other Gandhi-style confrontations were desegregating department-store lunch counters throughout the South. No laws had to be passed or repealed. Social pressure—the public shaming of bigots—was working.
Even earlier, during the 1950s, David Beito and Linda Royster Beito report in Black Maverick, black entrepreneur T.R.M. Howard led a boycott of national gasoline companies that forced their franchisees to allow blacks to use the restrooms from which they had long been barred.
It is sometimes argued that Title II was an efficient remedy because it affected all businesses in one fell swoop. But the social movement was also efficient: whole groups of offenders would relent at one time after an intense sit-in campaign. There was no need to win over one lunch counter at a time.
Title II, in other words, was unnecessary. But worse, it was detrimental. History’s greatest victories for liberty were achieved not through lobbying, legislation, and litigation—not through legal briefs and philosophical treatises—but through the sort of direct “people’s” struggle that marked the Middle Ages and beyond. As a mentor of mine says, what is given like a gift can be more easily taken away, while what one secures for oneself by facing down power is less easily lost.
The social campaign for equality that was desegregating the South was transmogrified when it was diverted to Washington. Focus then shifted from the grassroots to a patronizing white political elite in Washington that had scurried to the front of the march and claimed leadership. Recall Hillary Clinton’s belittling of the grassroots movement when she ran against Barack Obama: “Dr. King’s dream began to be realized when President Lyndon Johnson passed the Civil Rights Act of 1964…. It took a president to get it done.”
We will never know how the original movement would have evolved—what independent mutual-aid institutions would have emerged—had that diversion not occurred.
We do know, as Professor Bernstein reminds us, that Title II became a precedent for laws forbidding all types of private “discrimination” that were in no way rooted in government-sanctioned cartels. Bernstein may see the South’s social system as providing a “limiting principle” for when antidiscrimination laws are permissible, but this overlooks the perverse dynamic of the political world. Simply put, after 1964 there just was no way that antidiscrimination laws were going to be confined to Jim Crow-type cases.
Libertarians need not shy away from the question, “Do you mean that whites should have been allowed to exclude blacks from their lunch counters?” Libertarians can answer proudly, “No. They should not have been allowed to do that. They should have been stopped—not by the State, which can’t be trusted, but by nonviolent social action on behalf of equality.”
The libertarian answer to bigotry is community organizing.