There is no such thing as "private" discrimination with respect to a public accommodation. Like any other claimed property right, it could not exist without government support.
Suppose an African American customer sits down at a "whites only" restaurant and asks for dinner. The owner tells him to leave. The customer refuses and stays put. What are the owner's options at that point? He can forcibly remove the customer himself, but, as Paul concedes, that could expose the restaurateur to criminal or civil liability. So he'll have to call the cops. When they arrive, he'll have to explain his whites-only policy and ask them to remove the unwanted black man because he's violating it. But they can only do that on the basis of some law, presumably trespassing. In other words, the business owner's discriminatory edict is meaningless unless some public authority enforces it.
Conversely, it is precisely because of this nexus between private discrimination and public enforcement that the larger community, through the political and judicial process, acquires a valid interest in legislating against discrimination. The public is entitled to say whether their tax money should pay for arresting black trespassers on whites-only property.
Friday, May 21, 2010
Discrimination Requires Government Intervention
In a previous post I wrestled with how someone who supports a small government should feel about Civil Rights Act of 1964, which bans discrimination, even by a private company. In a nation of free people, should they be free to be racially discriminatory to their employees or customers? Later I tackled the issue again trying to show that perhaps laws would not be needed, because discrimination is unprofitable. Yesterday loyal reader (and commenter) Aaron Keck (aka Amike), posted an interesting link that was just too good to leave in the comments: Here's the question I need answered, which set of laws (to allow discrimination or not) will result in the most good for America in the long run? Banning discrimination in the 1960's decreased the amount of discrimination. But did it also leave the door open for the federal government to intervene in other ways?
Subscribe to:
Post Comments (Atom)
I don't think there's any question the Civil Rights Act made the country a better place; I also don't think there's any question that it definitely opened the door for increased federal intervention--though the article is right to point out that institutionalized discrimination required more government than integration, albeit on the state level. (And if you really want to point fingers as far as that goes, I wouldn't start with the CRA--I'd start with J. Edgar Hoover, Joe McCarthy, and all the other Cold War hawks that Eisenhower warned about. First things first--nothing says "big government" like secret surveillance and massive military buildups.)
ReplyDeleteAnd it's important to recognize that supporting the CRA doesn't necessarily lead one to reject the notion of private property/association rights. They're not absolute--no right is--but they're still there. A business owner may not refuse to serve somebody for being black, but she MAY refuse to serve somebody for being unruly, and if gov't tried to ban THAT form of "discrimination" too, that would constitute an illegitimate intrusion (on top of being a stupid idea).
So, in short, there IS a property right and a right of association, and there IS a degree to which government may not violate them--but it is ALSO the case that those rights don’t exist in the absence of government (which implies that the public/private distinction is always blurrier than we think it is), and it is also the case that government DOES have the authority (maybe even the duty) to restrict the exercise of those rights in certain (though not all) circumstances. (That's a confusing sentence, but I'm pretty sure it's all correct.)
So it's not about "more government bad, less government good"--it's about WHEN government is good. Nor is any of this a matter of absolutes: we're not choosing between "government ALWAYS has the authority to tell business owners what to do" and "government NEVER has that authority." Rather, it's a question of WHEN government has that authority, and why.
And since we’re talking about the CRA--to answer those questions, I’d start with the two definitions of justice in MLK’s "Letter From Birmingham Jail." (I could say more, but it’s 1:40 AM and I’m tired...)
Well said, Amike.
ReplyDeleteHarrison you and I have talked about this for hours, so you know everything I think about it. I'm wondering now if your post title is a question or a statement. If it's a statement, I'm doing a little dance. :)
Related.
ReplyDeleteAmike,
ReplyDeleteI agree, in many ways conservatives are a bigger threat to a flourishing society. Here's a question for the history books: who did more damage, extreme conservationism (think Hitler) or extreme liberalism (think Stalin).
Great point about degrees, though you must admit momentum matters. That said, though I agree it's not a about "more government bad, less government good", I think in most cases I generally prefer less government.
Justin,
Dance on sir. I'm definitely doubting my original assumption that banning discrimination leads to a more disruptive government.
As for that link I honestly don't know much about Rand Paul, but I disagree with the authors main point. I honestly believe freedom (by my definition) is freedom from force. In a free society, the only entity that has the right to force people to do things is the government.
Aaaaa!! Terms, terms! Hitler was not a "conservative," Stalin was not a "liberal"...
ReplyDeleteAnd it's not necessarily conservatives or right-wingers either. Have you read "Hellfire Nation," by James Morone? Long book, but well worth it--among other things, he argues that historically, expanded federal government power has come as a consequence of witchhunts and other moral crusades (which aren't necessarily right- or left-wing).
Re your last point: it may be the case that the government is the only entity with the RIGHT to coerce people, but it's hardly the only entity with the POWER. What kind of free society is it if government is limited but every other agent of power has free rein?
Although I agree liberal and conservative have been used to the point where they have no real clear definition. There's this from the always reliable Wikipedia: Nazism was a far right form of politics.
ReplyDeleteWhat other agents of power do you mean?
"Liberal," "conservative," "left," "right," and just about every other word that has more than 200 years of usage in political discourse. ("Freedom.") I'm teaching a class this fall called "Left, Right, and Center"--it's gonna be a MESS. :)
ReplyDeleteOther agents of power: the most obvious is the bully or the gunman who threatens you with physical harm unless you do this or give him that--but then it gets deeper from there. Economic monopolies/oligarchies have the power to determine what you can buy, where you can buy it and how much you're going to pay; cultural and social elites (think media execs, on-air personalities, celebrities, religious leaders, teachers, politicians, etc) have the power to shape our worldviews, the way we think, who we decide to care about and who we reject as not worth caring about; our bosses at work have the power to determine what we can and cannot do at any given moment of the workday, how much we're going to be paid, how long we're going to work and under what conditions; and our neighbors and peers (often in cahoots with cultural elites) have the power to determine what we like, what we dislike, whom we associate with and whom we shun, what we're proud of and what we're ashamed of, what we display about ourselves and what we hide. Of course there's an aspect of individual choice in all of that--but then again, there's an aspect of individual choice whenever government issues orders too. From the perspective of choice, "Work in a sweatshop or starve to death" isn't any different from "pay your taxes or go to prison." Technically, you have that choice--the government's not physically holding you down, forcing a pen in your hand and moving it around on the tax form. If you're 'free' in the former case, then you're 'free' in the latter too.
Of course, all of this means that we're never going to be rid of power. (Glenn Beck can SAY, "I'm an idiot, don't listen to me"--and to his credit, he does say that--but as long as he has that huge microphone, he's going to have a disproportionate amount of power over public opinion.) So if we're worried about power, if we're worried about freedom and individual choice, there are two things we need to do as a society:
1) Work to ensure that power (in a general sense) is not concentrated in too few hands. That means a) making sure that economic, cultural, and political power aren't all in the same hands, or that the three powers aren't always working in cahoots (the point of the original article) and b) making sure that the three powers are all divided and distributed among many people, so that no one person or small group can seize ALL the economic/cultural/political power in society. (James Madison, Federalist 10.) On the flip side, it also means c) making sure that people aren't entirely EXCLUDED from power either. That's oppression, which is precisely what we're trying to avoid.
2) Accepting that there WILL be concentrations of power, we also need to focus on educating people to values and virtue, so that WHEN they assume their disproportionate power, they won't abuse it or use it for purely selfish ends.
...and all of this needs to be done not only with respect to government, but also with respect to culture and the economy, the other two sources of power. (This is all basically the Federalist Papers, by the way, taken to its logical conclusion: Madison says all this with respect to government; my point is that if you stop there, you're not really solving the problem--in fact you might be making it worse, by weakening an important check/balance on economic and cultural power.)
Holy hell, that was long. Sorry.
ReplyDeleteBut interesting as always. I think you should add that second part to the name of your class: "Left, Right, and Center, it's a mess". Ha ha ha.
ReplyDeleteOh, that's totally going to be the point of the whole first week. I always like to open the semester with a lecture about how the class shouldn't even exist. (I've got my "American Political Thought is an oxymoron" lecture down to a science.)
ReplyDeleteI tend to agree with where Rand Paul was headed with his argument. I disagree with Amike in one critical point: the nexus aurgument.
ReplyDeleteGovernment is formed to secure our rights, including rights of speech and association. If I open my business to the public on my own property, and someone of a classification I do not like comes onto my property to patronize my business, I have an absolute right to refuse to do business with them.
The difference I have with Amike is that I think that the police can by law be forbidden from evicting someone for my discriminatory reasons. In other words, the law would be blind to my discrimination, neither aiding nor hindering. They should, however, defend the patron from violence to their person or property.
I don't think I would get far today as this kind of business owner, either with patrons or with employees.
For the record: I believe that racial discrimination is an evil in this world. More important to me, I believe that government-sponsored reverse discrimination is an even greater evil. I am something of a Bastiat follower in this.
FS,
ReplyDeleteThanks for the comment. It seems like you and I mostly agree, though I'm less certain than I used to be.
Oh, and nice 19th century French economist reference.
I had a timely encounter with a new (to me) blog referencing this particular concept.
ReplyDeletehttp://strikinglyunattractiveyetwitty.blogspot.com/2010/05/collective-rights.html
I have yet to read a Bastiat essay that strikes me wrong. First heard his name when Bob Novak recounted how Reagan surprised him in an interview naming Bastiat, Hayek, Mises, and others as his most influential authors. Well worth exploring. Start with Wikipedia and work your way out.