You Haven’t Freed Nobody”

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 sit-in movement in part because of sympathy boycotts in the North. But this only goes to show the power of the movement. We don’t know how things would have played out had Title II not been passed. But it is reasonable to believe progress would have continued precisely because of sympathy outside the South. (My original reply noted the successful boycott of the gas-station chains in the 1950s.)

Professor Bernstein points out that the freedom-rider movement, which aimed at ensuring desegregation of interstate bus facilities, met with white violence. True enough. But each incident only brought out more freedom riders, black and white. This movement was not to be stopped. Professor Bernstein writes, “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.” I really don’t understand this final statement. Social activists—increasing in number all the time—were risking life and limb, and were succeeding. The whole world was watching.

I will agree that as long as government was taxing people (allegedly) to provide for their protection, it should have protected them from violence. And since the violence was condoned (if not actually abetted) by state and local authorities in the South, the federal government should have provided protection. That, however, is different from Title II.

My earlier reply lamented the turn from direct social activism to lobbying and legislation because it constituted 1) preemption by a patronizing white political establishment and 2) reinforcement of the idea that the State can right all wrongs. As to the first, some civil-rights activists expressed the same view. Freedom Rider C. T. Vivian said, “What these liberal white fellows were saying [to the social movement] is that the non-liberals down here are gonna kill you … and we won’t be able to help you…. And without our help, why, you could never make it, because you must have us talking to white people. And we were saying, that’s your importance, all right, but you haven’t freed nobody.”

Professor Bernstein writes in his rebuttal, “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.”

The correlation doesn’t seem tenuous to me. Most people—given their attitude toward the State—do not make the distinctions libertarians make. It was inevitable that Title II would be just the beginning of the social engineering Professor Bernstein properly abhors. Sure, supporters “got away with characterizing Title II as a run-of-the-mill regulation of property.” But who was in any position to prevent that? For most people, toothpaste is toothpaste—and it was out of the tube.

Professor Bernstein raises a good question when he asks, “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?” It seems to me it would have helped. The threat to vote out a mayor or sheriff certainly couldn’t have hurt. One of the earliest triumphs of the lunch counter sit-in movement was in Nashville, a city in which blacks could vote.

Also from this issue

Lead Essay

  • 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

  • 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.

  • 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.

  • 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.”