June 2010

In a conversation last month with the Louisville Courier editorial board, Dr. Rand Paul, now the Kentucky Republican nominee  for Senate, was asked if he would have voted for the 1964 Civil Rights Act. Paul’s reply articulated a fairly typical libertarian and conservative view:

I like the Civil Rights Act, in the sense that it ended discrimination in all public domains, and I’m all in favor of that. I don’t like the idea of telling private business owners… I abhor racism. I think it’s a terrible business decision to exclude anybody from your restaurant. But, at the same time, I do believe in private ownership. But I think there should be absolutely no discrimination in anything that gets any public funding.

Later, TV pundit Rachel Maddow pressured to Paul to clarify his views on her MSNBC show, asking, “Do you think that a private business has a right to say that ‘We don’t serve black people?’” Paul again stressed his strong opposition to discrimination while noting that anti-discrimination laws often conflict with important liberties. “Should we limit speech from people we find abhorrent?” Paul asked. “Should we limit racists from speaking?” He continued:

I don’t want to be associated with those people, but I also don’t want to limit their speech in any way in the sense that we tolerate boorish and uncivilized behavior because that’s one of the things that freedom requires is that we allow people to be boorish and uncivilized, but that doesn’t mean we approve of it.

Maddow pressed further, asking, “How about desegregating lunch counters?” “Does the owner of the restaurant own his restaurant? Or does the government own his restaurant?” Paul asked in turn. “These are important philosophical debates but not a very practical discussion…”

Practical or not, these important philosophical debates are the topic of this month’s Cato Unbound. Was Rand Paul right? Did Title II of the 1964 Civil Rights Act, which deals with private rather than public discrimination, unjustifiably restrict rights to private property and free association? Or are these restrictions justifiable in light of  hundreds of years of slavery and oppressive legal racial discrimination?

In the discussion following Dr. Paul’s seemingly ill-fated tangle with Maddow it emerged that even libertarians, who might have been expected to share Paul’s view, disagree about these important questions. So this month Cato Unbound has brought together a panel of libertarians to hash it out. We’ll talk about the Civil Rights Act, but we’ll focus on the general problem of realizing ideals of equal liberty when legal and social inequality have long been the historical norm.

Starting us off is a lead essay from David E. Bernstein, author of Only One Place of Redress: African-Americans, Labor Regulations, and the Courts from Reconstruction to the New Deal. Then we’ll have replies from Sheldon Richman, editor of The Freeman; Cato Unbound’s own Jason Kuznicki; and Harvard economist Jeffrey Miron, author of Libertarianism, from A to Z.

Note on this month’s banner image

The photograph depicts Joseph McNeil, Franklin McCain, Billy Smith, and Clarence Henderson at a whites-only lunch counter, on February 2, 1960, during the second day of peaceful protest at a Woolworth’s in Greensboro, North Carolina.

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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.”