Kentucky Senate candidate Rand Paul, a Republican with libertarian leanings, recently questioned the provision of the 1964 Civil Rights Act that bans discrimination in restaurants, hotels, and other businesses.  Bloggers and editorialists responded with a deluge of negative, and often unfair or inaccurate, commentary about the libertarian position on antidiscrimination laws.

The most serious charge has been that libertarian skepticism of antidiscrimination laws that apply to private entities reflects, at best, insensitivity to race discrimination.  One blogger, reflecting a significant swath of progressive sentiment, argued that no matter how committed to racial egalitarianism any individual libertarian claims to be, “Libertarianism is a racist philosophy. Libertarians are racists.”

This is a rather odd criticism. For both philosophical and utilitarian reasons, libertarians are presumptively strongly opposed to any government regulation of the private sector.  It naturally follows that libertarians presumptively oppose restrictions on private sector discrimination.  It’s hardly an indication of racial animus, or even insensitivity, for libertarians to enunciate the exact same position on antidiscrimination laws that they take in all other contexts.

The progressive libel of libertarians as racial troglodytes for their consistent defense of private-sector autonomy is ironic, given that similar illogic has so frequently been used against modern liberals.  When liberals defended Communists’ free speech and employment rights in the 1950s, their critics accused them of being Communist sympathizers, if not outright Communists.  More recently, progressives have been accused of being American-hating jihadist sympathizers when they stood up for the rights of terrorism suspects.  Critics have even charged civil libertarians with abetting racism for opposing hate speech laws.

The hate speech example is particularly telling.  Some progressives argue that if libertarians were more sensitive to the concerns of minorities, they would sacrifice their anti-statist principles to the goddess of antidiscrimination. If so, progressives should similarly sacrifice their support for freedom of speech.

Confronted with the hate speech analogy, progressives will typically reply that supporting freedom of speech is completely different from supporting the right to engage in discriminatory action.  After all, speech is just speech—sticks and stones, and whatnot—while discriminatory actions cause real distress to the victims.  And besides, they argue, the marketplace of ideas can be trusted to ensure that egalitarian views will emerge victorious.

This argument does not stand up to close scrutiny.  Hate speech can directly harm members of minority by causing psychological distress or inciting violence.  And indirect harms from hate speech can be catastrophic if advocates of racist views are able to win control of the government.  While minorities can generally find productive economic niches in even highly prejudiced but market-oriented societies, there is no safe haven for minorities if racist ideas dominate politics and lead to harsh discriminatory legislation.

Also, a free economic market protects minorities from discrimination to some degree because businesspeople have an economic incentive to hire the most productive workers and to obtain the most customers.  By contrast, individual voters and political activists have no corresponding incentive to overlook or overcome their personal prejudices.  Concern for the financial bottom line mitigates the temptation of economic entrepreneurs to discriminate; concern for the electoral bottom line, meanwhile, often leads politicians to stir up resentment against minorities.

As suggested above, supporters of antidiscrimination laws typically focus on laws banning racial discrimination.  They do so because opposition to race discrimination has great historical and emotional resonance in a nation that had institutionalized racial oppression, including chattel slavery, for hundreds of years.  However, federal antidiscrimination laws also apply to discrimination based on religion, sex, age, disability (including one’s status as a recovering drug or alcohol addict), pregnancy, marital status, veteran status, and even military recruiters.  State and local antidiscrimination laws cover everything from sexual orientation to political ideology to weight to appearance to membership in a motorcycle gang.

The proliferation of antidiscrimination laws explains why libertarians are loath to concede the principle that the government may ban private sector discrimination.  There is no natural limit to the scope of antidiscrimination laws, because the concept of antidiscrimination is almost infinitely malleable. Almost any economic behavior, and much other behavior, can be defined as discrimination. Is a school admitting students based on SAT scores? That is discrimination against individuals (or groups) who don’t do well on standardized tests! Is a store charging more for an item than some people can afford? That is discrimination against the poor! Is an employer hiring only the best qualified candidates? That is discrimination against everyone else!

The obvious retort is that antidiscrimination laws should be limited to “real” discrimination.  But there is no consensus as to what constitutes “real” discrimination, nor, not surprisingly, does there appear to be any principled definition that legislatures have followed.

One can, for example, define discrimination as treating the alike unequally, but antidiscrimination law does not always follow this definition. Federal antidiscrimination law, for example, requires employers not simply to treat disabled and non-disabled alike, but to make costly “reasonable accommodations” for the disabled.  Employers have the same legal obligation to their religious employees.

In short, to concede the general power of government to redress private discrimination through legislation would be to concede virtually unlimited power to the government.   Libertarians, however, are often willing to make certain exceptions to their opposition to antidiscrimination laws, so long as they can identify an appropriate limiting principle.

Consistent with longstanding classical liberal suspicion of monopolies, many libertarians would allow the government to ban discrimination by such entities. Even more libertarians would endorse antidiscrimination laws applied to monopolies that were created or sustained by government edict.  For example, if the government grants labor unions the exclusive power to represent workers, there is nothing “unlibertarian” about insisting that unions represent all employees without discrimination.  The Anglo-American common law, much beloved by libertarian legal scholars, required at least some public accommodations—particularly those granted exclusive government charters or otherwise exercising monopoly prerogatives—to serve all comers.

This brings us back to the issue that got Rand Paul into hot water: Title II of the 1964 Civil Rights Act, which prohibited discrimination in public accommodations.  At least one prominent commentator, Bruce Bartlett, has suggested that libertarian opposition to Title II should serve as a reminder that the existence and persistence of Jim Crow in the South reflected libertarian sensibilities.

Bartlett’s position is incoherent philosophically, and counterfactual historically.  From a philosophical perspective, libertarianism and Jim Crow laws are completely at odds. Consistent with their classical liberal heritage, libertarians believe that the government must treat all its citizens as individuals with equal rights, and therefore may not discriminate on arbitrary grounds, like race.  The government must also apply its laws fairly and impartially, including by protecting members of unpopular minority groups from private violence.  A penumbra of this opposition to government discrimination is that the right to vote must not be denied for arbitrary reasons.  Finally, the government may not require private parties to discriminate.

Historically, many of the leading advocates of civil rights for African Americans in the late 19th and early 20th century—for example, Moorfield Storey, the first president of the NAACP—were, if not hardcore libertarians, at least classical liberal fellow travelers.  In more modern times, the few prominent libertarian commentators of the early 1960s, such as Ayn Rand and Milton Friedman, supported the provisions of the 1964 Civil Rights Act that banned discrimination by state and local government officials.   Conservatives, by contrast, typically bought into the notion of “States’ Rights.”

Rand, Friedman, and other libertarians, however, opposed on principle the application of antidiscrimination laws to private parties.  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.

First, the absence of formal discriminatory legislation did not mean that libertarian principle was being respected.  I’ve already noted that the common law rule barred discrimination in places of public accommodation.  After the Civil War, courts, both north and south, manipulated, changed, or ignored their preexisting common law to deprive African Americans the benefit of that rule. Similarly, courts that consistently invalidated minor contractual restraints on the alienation of private property nevertheless upheld ethnically restrictive covenants that at times barred most of the residents of a given city from purchasing encumbered properties.  The refusal to apply a general legal rule because the beneficiaries would be African Americans was a violation of their right to equal protection of the law.

Second, to say the least, segregation and exclusion of African Americans in public places in the South wasn’t entirely a voluntary choice of business owners.  Jim Crow segregation involved the equivalent of a white supremacist cartel.  The cartel was enforced not just by overt government regulation like segregation laws, but also by the implicit threat of private violence and extra-legal harassment of anyone who challenged the racist status quo.  This violence and extra-legal harassment was often undertaken with the approval of local officials; the latter, in fact, were often the perpetrators.

To break the southern Jim Crow cartel there were two options: (1) a federal law invalidating Jim Crow laws, along with a massive federal takeover of local government to prevent violence and threats against, and extralegal harassment of, those who chose to integrate; or (2) a federal law banning discrimination by private parties, so that threats of violence and harassment would generally be met with an appeal to the potential victim’s obligation to obey federal law.  The former option was arguably more appealing from a libertarian perspective, but it was completely impractical.  Not surprisingly, many prominent libertarians who have commented on the issue recently have stated that they would have voted for the 1964 Civil Rights Act, including its public accommodations provisions.

Critics of the libertarian position on antidiscrimination laws argue that to avoid being deemed reactionary or irrelevant, libertarians must more generally abandon their opposition to private sector antidiscrimination laws.  One major underlying reason for this insistence is the belief that antidiscrimination laws somehow magically transform members of despised minority groups into full equal citizens in the eyes of the majority.  Even a generally sober commentator like George Will believes that Title II “not only got African-Americans into public accommodations, [but] changed the thinking of the white portion of the country as well.”

Antidiscrimination laws can plausibly accelerate trends toward greater tolerance of minorities.  These laws can also force a local majority, such as southern whites in the 1960s, to heed the values of a national majority, such as non-southern whites, who by 1964 had turned strongly against racial segregation.

But antidiscrimination laws are unlikely to provide much protection to a minority group when the majority of the voting population is hostile to that group.  America’s landmark civil rights legislation was enacted and implemented in the 1960s, when racial attitudes of whites had already liberalized substantially; in the 1930s, when white public opinion was solidly hostile to African-Americans, President Roosevelt refused to support even anti-lynching legislation.

Antidiscrimination laws, in other words, typically follow, rather than cause, the liberalization of attitudes toward minority groups. Contrary to conventional wisdom, the effect of antidiscrimination laws on public attitudes is rarely dramatic.  Even the 1964 Civil Rights Act did not noticeably accelerate the pace of liberalization of whites’ racial attitudes.

Given their strong anti-statist presumptions, libertarians will generally remain presumptively opposed to the panoply of modern private sector antidiscrimination laws.  (This includes, by the way, libertarian opposition to conservative attempts to ban private sector affirmative action preferences.) Many libertarians, however, would likely support antidiscrimination laws if they evolved into default rules that parties could contract around if desired.  For example, an antidiscrimination law could replace the common law “at will” employment with a default rule that no employer may discriminate based on a variety of criteria.  If an employer nevertheless wished to retain the right to discriminate on one of the prohibited bases, it would have to acknowledge that desire to potential employees, and, therefore, inevitably to the public at large.  The subject of default rules, however, requires significantly more attention than this essay can give it.

Beyond that, my own view is that the basic federal laws banning discrimination in employment, housing, and public accommodations, as originally conceived in 1964—before the courts and civil rights bureaucracies devised problematic doctrines like “disparate impact” liability—were relatively benign.  If everyone from farmers to military contractors to ACORN is able to successfully lobby the government to protect their interests, I don’t find it especially troubling that members of minority groups, who have more legitimate grievances than most legislative supplicants, also use legislation to protect their interests.

That doesn’t mean that libertarians have some obligation to support basic private sector antidiscrimination legislation; rather, I think that from both a moral and tactical perspective, opposition to such legislation should be rather low on the libertarian priority list.  Indeed, I would be troubled if there was a sudden popular move to repeal antidiscrimination legislation, if it were unaccompanied by broader libertarian political trends, because it would suggest that opposition to such laws came arose from hostility to minority groups, not from opposition to Big Government.

I think, however, libertarians can and should insist that a line be drawn at the point where such laws infringe on the constitutional rights to freedom of speech, freedom of religion, expressive association, and other civil liberties.  The drafters of the 1964 Civil Rights Act were reasonably sensitive to such concerns, and limited the scope of the Act accordingly.  For example, religious organizations, small businesses, and private clubs were exempted from provisions of the Act.  In the decades since, though, civil liberties have increasingly come to be seen by antidiscrimination activists as inconvenient and unnecessary obstacles to a discrimination-free world.

The result has been, for example, attempts to force private Christian schools to hire unmarried pregnant teachers, to suppress campus speech that allegedly creates a “hostile environment,” to force private membership organizations to enact politically correct membership policies, to force individuals to live with gay roommates, and to prosecute neighborhood associations for objecting to the placement of halfway houses in their neighborhoods.  (These and many more examples are documented in my book You Can’t Say That! The Growing Threat to Civil Liberties from Antidscrimination Laws (Cato Institute 2003).)

Americans can’t rely on the courts to protect them from antidiscrimination laws that infringe on constitutional rights.  In the 1980s, a series of Supreme Court rulings suggested that the government’s purported “compelling interest” in “eradicating” even trivial forms of discrimination justified running roughshod over the First Amendment.  The Supreme Court seems to have backed away from this position, but the prevailing sentiment among the younger generation of legal scholars is that the Court’s earlier stance was correct.  Few law professors, for example, were willing to defend the Boy Scouts’ right to establish its own membership policies when the Scouts defended that right before the Supreme Court in Boy Scouts of America v. Dale.

Marc Stern of the American Jewish Congress, frustrated with the refusal of his liberal colleagues to accept religious exemptions to civil rights laws, has noted that antidiscrimination principle “is taking on a quasi-religious status. Maybe for some people questioning civil rights [legislation] is like questioning God.”  If so, it’s not surprising that the libertarian position on antidiscrimination laws attracts such fierce criticism.

The laudable goal of the ever-broadening antidiscrimination edifice is to achieve a fairer, more just society.  Laudable goals, however, don’t justify giving the government excessive authority, or disguising the implications of doing so.  I’m reminded of the “Sexual Harassment Panda” episode of South Park.  Kyle’s father explains that antidiscrimination law tells us what we can say and do in the workplace and elsewhere. Kyle responds, “But isn’t that fascism?”  His father retorts, “No, because we don’t call it fascism.”

—

David E. Bernstein is the Foundation Professor at the George Mason University School of Law.

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.

—

Sheldon Richman is the editor of The Freeman. He blogs at Free Association.

First, I’d like to thank David Bernstein for writing the lead essay this month. I think there are three distinct questions before us:

1. Did Title II of the 1964 Civil Rights Act help produce a better society?
2. Is Title II acceptable by my ideological standards?
3. Is Title II constitutional?

One might say “yes” or “no” to each without influencing how one answered the others. Different results would imply different things about one’s ideology, constitutional theory, and interpretation of American history. I’ll give my answers one at a time.

Did Title II help produce a better society?

Yes.

In the last fifty years, violent, organized racism has shriveled to the political fringe. Blacks’ incomes, while they still lag behind whites’, have soared, and whites’ incomes haven’t suffered. Interracial marriage is legal and increasingly common. And, of course, we now have a black president. The steady collapse of racism is the domestic story of the last fifty years.

Which, though, was the cart, and which was the horse? Did legislation shape public opinion, or vice versa? This relationship is hard to untangle, because the law really can affect individual dispositions, and individual dispositions really can affect the law.

Still, there are good reasons to think that the law was the driving factor here, and that something about this law in particular was important.

I say this because previous efforts to end racial inequality had mostly failed. The Civil War Amendments hadn’t done it, as slavery was replaced by coercive racial peonage. Military occupation of the South failed, as racist whites retook state governments once the troops went home. The Ku Klux Klan Act failed, the victim of an intimidated court system often larded with Klansmen.

Yes, Buchanan vs. Warley and Brown vs. Board of Education were both legal victories, and there were others here and there, but in 1964 the overall edifice of segregation remained all too strong. And then, something really, really big happened.

Yet at the time, Title II seemed potentially very invasive. What if it produced a lot of hassle, but no equality? As Barry Goldwater wrote, the 1964 Civil Rights Act would

require the creation of a federal police force of mammoth proportions. It also bids fair to result in the development of an ‘informer’ psychology in great areas of our national life — neighbors spying on neighbors, workers spying on workers, businessmen spying on businessmen, where those who would harass their fellow citizens for selfish and narrow purposes will have ample inducement to do so. These, the federal police force and an ‘informer’ psychology, are the hallmarks of a police state…

Goldwater’s reasons were noble, and they may have been convincing at the time, but clearly they were misplaced. An informer psychology? Neighbors spying on neighbors? We already had that. Its name was Jim Crow.

We’ll get to Goldwater’s constitutional qualms below, but with the benefit of hindsight, what we got from the 1964 CRA was on balance much, much less coercion. We also got a less racist society, and for that I’m profoundly thankful. The growth of the federal police state was negligible, at least from this particular measure. 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.

Is Title II acceptable by my ideological standards?

Yes.

I’ve been strongly influenced by Friedrich Hayek. By Hayek’s standards, as set forth particularly in Law, Legislation, and Liberty and The Constitution of Liberty, Title II passes every test. Some of these are obvious, but let’s walk through them anyway.[1]

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. No one is allowed to discriminate racially in business, whether black, white, or other, and no one shall experience disfavor because of race.

Imagine that one day blacks, Latinos, Asians, or another minority became the most numerous or politically powerful group in America. Whites, then, would be thankful for the protections of Title II, which would prevent racist cartel behavior from re-emerging. Although this was not the intent of the legislators who passed it, we can see in this possibility one of the hallmarks of Hayekian law: It serves well in a wide range of different settings.

Title II is also simple to state in principle and easily understood. Yes, there are vexing borderline cases, but these are both rare and relatively unimportant. Racial nondiscrimination has become one of the understood, very predictable ground rules for doing business in the United States, and everyone now formulates their expectations accordingly. Property rights in our economic order encompass many other potential courses of action, but not this one. I’m fine with that.

Yes, Hayek does warn us against sweeping social experiments, but by now it should be clear that even if Title II had been a sweeping social experiment, well, somehow we came out okay. It’s an abuse of Hayekian reasoning to raise such concerns now of all times.

What’s more, repealing Title II would be an experiment of exactly the kind Hayek warns against. I think Title II has good effects, but even if I thought it had modestly bad ones, Hayek would urge me to consider letting it stand.

Is Title II Constitutional?

Maybe.

This is the toughest question for me. Logically, it could be that Title II is both good for the country and ideologically kosher, but that it fails constitutionally. This could indicate a defect in our constitution, although I am very reluctant to say so.

But first, let’s note that mainstream jurisprudence is perfectly fine with Title II, justifying it by way of the Commerce Clause. No amount of theorizing appears likely to change matters, whatever we may think of mainstream analysis.

And Title II may yet be constitutionally justified. One argument that I favor runs as follows.

Start with Max Weber’s definition of the state: A state is a monopoly on the legitimate use of violence. Libertarians, including Hayek, have worked within this definition. And — with apologies for anachronism — the American founders believed something similar.

There are, however, many ways of making violence legitimate. Sometimes we legitimize violence with votes, written law, uniforms, oaths, special buildings and ceremonies, and other formal methods. But other times, we may legitimize violence simply by letting it happen — and by making certain that the state always, always looks the other way.

The latter type of violence pervaded the South. I do not mean to grant this violence legitimacy by my standards, but clearly the great majority of southern whites did think it was legitimate, and they held all the political power. As Frederick Douglass once wrote, “What is a State, in the absence of the people who compose it? Land, air and water. That is all.”

The concerted (or coerced) action of all people in a region is state action. At the very least, systematically tolerated, well-organized, unpunished violence is a proper matter for the state to act on, and for federal legislation under the Fourteenth Amendment.

As we’ve noted, many previous attempts to stop this violence had failed. But prohibiting private, racially discriminatory business conduct appears to have worked as a means to the end. The state now consistently treats racist violence as illegitimate.

The cure was radical, but so was the disease. I’m not a constitutional lawyer, and I know that this reasoning might not hold up in court. But it seems no weaker than invoking the Commerce Clause. It also clearly separates this form of federal intervention from interventions elsewhere. The federal government went after businesses here not because it can go after businesses everywhere, but because here, businesses were locked in a system of violence.

Stepping back a bit, it is bizarre and embarrassing to me that this should be the hill that anyone wants to die on in the name of originalism. Why don’t originalists work first in the most fruitful areas, and leave the doubtful ones for later? Originalism is an explanatory theory like any other, and in some places it will be more powerful than others. Originalists should play to their strengths, not to their contrarian impulses.

Consider:

• Eminent domain seizes millions of dollars of private property every year so that the state can sell it to other private owners. This is unwarranted by the text of the Constitution, and it is contrary to the explicit will of the framers in the debates of their day.
• Thousands upon thousands sit in prison for nonviolent drug crimes. The Fourth Amendment’s protections against search and seizure, and the general guarantees of limited government power, have been shredded to put them there.
• The president claims the authority to assassinate U.S. citizens anywhere in the world merely by issuing a directive — a step even George III didn’t take. The previous president brags openly about having used the very same torture methods that we rightly denounced the Soviet Union for.

We fought a revolution for much less than what we’re suffering today. And we’re worried about Title II?

I am reminded that by the letter of the law, the Air Force is also unconstitutional. The Constitution says not a word about it. But arguing about that only makes you look silly. Arguing about Title II makes you look evil, and it ruins your chances to achieve originalist goals everywhere else.

Originalists, I consider you my ideological neighbors, so I implore you, please stop. Such complaints are more suited to overcaffeinated undergrads who have just discovered the garden paths of ideology. Students both need and deserve arguments like these, and they are helpful in their place. But advocates of limited government have scant political capital, so let’s not squander it.

—

Jason Kuznicki is a research fellow at the Cato Institute and managing editor of Cato Unbound.

Note

[1] Yes, Hayek might just be the squishiest of libertarian thinkers. But this is because many of Hayek’s policy proposals don’t sit well with his general principles. Policies like military conscription and housing subsidies — which Hayek allowed — flunk his very own tests. Not so with racial nondiscrimination, I argue.

Should libertarians support Title II of the 1964 Civil Rights Act? David Bernstein believes they should. David’s position is understandable, and his arguments are well-crafted. But libertarians should not only oppose Title II; they should shout that opposition from the highest roof tops.

The essence of Bernstein’s position is that discrimination in the pre-1964 South did not consist merely of actions by purely private actors, like employers or restaurant owners. It also consisted of an explicitly racist legal regime that mandated discrimination in education, public accommodations, transportation, and more, as well as implicit government backing for extra-legal actions taken by private citizens (who were themselves often police or other government officials) against both whites and blacks who tried to deviate from the discriminatory regime.

Bernstein then argues that the federal government had two choices for ending Jim Crow: federal laws invalidating state and local Jim Crow laws, or a federal law banning discrimination, i.e., Titles II and VII of the CRA.

The fact that Jim Crow was a government imposed and supported system is undeniable. But Bernstein’s prescription for ending Jim Crow is off the mark.

To begin, Title II is a bald-faced assault on a principle that libertarians hold dear: that private property is private. This means libertarians should be incredibly suspicious of Title II and insist on an overwhelming case before violating this principle. No such case exists.

Bernstein’s argument is also suspect because he asserts, rather than demonstrates, that restricting federal actions to overturning Jim Crow laws – roughly, the goal of Titles I and III-VI – would not have been sufficient to break Jim Crow. Yet much of the South was unenthusiastic about Jim Crow, whether for noble reasons or self-interest, so 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.

This is exactly what occurred in some instances, such as integration of state universities. Plus, as Sheldon Richman rightly emphasizes, purely private mechanisms, from boycotts to migration of blacks from the South to the North, were putting real pressure on Jim Crow independent of government efforts.

Even if these problems with Bernstein’s perspective are ignored, moreover, Title II was bad policy because it generated a range of undesired consequences that libertarians presumably abhor.

By violating the principle that private property is private, Title II created a precedent for other policies that violate property rights and have far less justification than Title II.

One example is smoking bans in restaurants. If the law views these establishments as entirely the property of their owners, it is hard to defend laws that ban smoking since non-smoking customers are not required to frequent any particular restaurant. If the law turns restaurants into “public accommodations,” however, then restaurants become places where the law can impose public health concerns and where customers have “rights,” other than just choosing not to frequent the restaurants they do not like.

Similar considerations apply to occupational health and safety regulation. So long as any workplace is the private property of the owner, it is difficult to defend rules about safety equipment, hours of work, and so on. These are concerns only for employers and their employees. Once workplaces are somehow “public,” the door is open for the state to pursue various goals that libertarians find objectionable. Mandatory maternity leave is a good example.

Most relevant to the civil rights debate, treating businesses as partially public sets the stage for government bans on private affirmative action. Yet reverse discrimination practiced by private parties is a crucial way that markets, not government, can limit the negative impact of discriminatory preferences exhibited by some restaurants owners and employers.

A different negative consequence of Title II is institutionalizing the view that blacks are too weak to overcome discrimination on their own. This is not just insulting; it is counter-factual. Private actions like boycotts and migration were undermining Jim Crow before the Civil Rights Act, and this process would have continued. In the North, where governments did not (generally) impose discrimination, blacks were succeeding on their own even more. Under the CRA and its sequelae such as affirmative action, however, many people view black success with suspicion because it might have been generated by federal law.

Title II also eliminates “transparency,” meaning the ability for everyone, black or white, to know who is racist and who is not. In response to a post on the Rand Paul Incident, one of my blog readers wrote the following:

I agree wholeheartedly that he [Paul] should have stood his ground and explained why his view is not a racist view, but that it, in fact, supports ones humanity.

The last thing that I would want to do is to spend money at an establishment that did not want me. By passing a law that eliminates transparency, I, as a black man, lose the ability to discern who wants my business and who does not. Wouldn’t it be better for people to patronize businesses that desire their business? I definitely believe so.

The commenter makes an excellent point; by requiring non-discrimination, Title II makes it easier for racist whites to take money from blacks.

Thus whether or not the CRA had the beneficial impact of breaking the discriminatory social norm that existed under Jim Crow — and any such effect is easily overstated, since norms were changing before CRA — it has other effects on social norms that are plausibly worse. Since private mechanisms, and federal actions against Jim Crow laws, would have generated the gains achieved by blacks anyway, Title II means we are stuck with the bad effects on social norms while getting only passing benefit from the (alleged) good effect.

The most stunning aspect of the Rand Paul episode is not that Paul voiced objections to the CRA, nor that he backtracked once the political firestorm erupted.

The most surprising aspect, instead, is how many libertarians have voiced support for the CRA in the aftermath. The exact reasons for libertarian support are not clear, but it seems many libertarians have concluded that, whatever they believe in their guts, opposition to the CRA is so incendiary that libertarians must find a way to make peace with it. Thus they have trotted out arguments about historical context and social norms to defend a position that seems antithetical to everything libertarians believe.

Libertarians are, of course, free to believe whatever they wish about the CRA. Perhaps many find the historical context and social norm arguments convincing, although I suspect they would be skeptical of such arguments in other contexts.

But if libertarians are supporting Title II out of political expediency, they are on a fool’s errand. Libertarians are never going to be widely popular or get elected in significant numbers; we hold far too many positions that are anathema in the political arena.

What libertarians can do is attempt to keep both sides honest. That means sticking to our principles no matter how awkward that might be.

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.

David Bernstein writes that my reaction essay showed “no noticeable qualms about the vast expansion of the antidiscrimination edifice since 1964.” As the saying goes, absence of evidence isn’t evidence of absence. I do have qualms about these laws, but I wouldn’t lay the blame for them so squarely on Title II.

I also didn’t bring up any other antidiscrimination laws because (1) they weren’t properly speaking the subject of this issue and (2) they are relatively easy for me to argue against, on all possible grounds. As I argued earlier, we can evaluate a law on the basis of its observed effects, its coherence with our ideology, or its constitutional standing.

Most other nondiscrimination laws are a lot more dubious constitutionally. Race is mentioned by name in the U.S. Constitution, and it is impossible to understand the legislative history of the Fourteenth Amendment without recognizing that it was intended to combat racial inequality.

In this context, the federal government is clearly empowered to act against racial discrimination in many areas. We can argue about which areas are proper, of course, and to some extent that’s what we’re doing here. But no other form of discrimination gets similar constitutional treatment or should be understood to occupy a similar place.

Second, these other antidiscrimination laws’ effects on society are surely not as beneficial as racial nondiscrimination, which helped to right the greatest wrong in our country’s history. If you’re not already convinced of the beneficial effects of racial antidiscrimination law, this claim obviously won’t be convincing either. But to my mind, the federal government tried very hard beginning with the end of the Civil War to get us to something like what we have today. Every other effort failed. This one worked. It takes a remarkable confidence in a counterfactual scenario to say that even this last, apparently successful effort was in vain.

Finally, other forms of antidiscrimination law are also much harder to square with my ideology, which privileges simple, easy-to-understand laws, laws well supported by social norms and community understandings. “Don’t consider a person’s race in hiring” is easy to understand. “Be careful not to appear to discriminate against motorcycle gang members” is just… puzzling. Do I ask if you’re a member? Do I not ask? How many gang members, roughly, is enough for me to hire to be above all possible suspicion? Are there hiring practices that would have the effect of discriminating against gang members, practices I might want to discuss with my HR director? As the owner of a business, I’d want answers to these imponderables. With race, these aren’t imponderables. There’s a meaningful difference here.

Likewise, with discrimination against gays and lesbians, I am a skeptic that the law has much of a constructive role to play. The Human Rights Campaign monitors the GLBT policies of America’s largest companies, and the last twenty years have seen these wealthy, powerful corporations scramble to provide equality. Privately! This, to my mind, is wonderful.

This, though, is also where I’d suggest that discrimination against GLBT people works differently from racial discrimination. Nearly all non-heterosexuals can “pass” — that is, they can appear normal when they need to. They can build trust, and then, if appropriate, they can divulge their group membership. That’s an act that changes minds in a way few others can. Most people who are in a racial minority, however, can’t pass. This makes a big difference, and there are many others besides.

Indeed, we could go on talking about these differences for a long, long time. Doing so would give ample reason for doubt about other nondiscrimination laws while keeping racial nondiscrimination in place. And there seems to me even less reason to worry about whether racial antidiscrimination laws have encouraged, for example, smoking bans.

The nanny state would have existed with or without Title II, and so it seems incorrect to me to find the first step of the slippery slope here of all places. Why not start with the New Deal? Or with eugenics and anti-miscegenation laws? Or with Prohibition? The nanny state has always been with us, hasn’t it? Why blame this one law in particular? The genie is out of the bottle, as it surely would have been in any case.

So what can we do? Well, we can try to draw the borders right at the forms of discrimination that the Constitution really does empower the government to stop — discrimination by race, perpetrated by common carriers, directed by the local governments, or (I’d argue) directed by agents acting in all respects as a government, through their systematically unpunished use of coercion.

This gets us a long, long way, but it still doesn’t get us near smoking bans or motorcycle gang antidiscrimination laws. Which is to say, we end up in pretty much the right place.

A Side Note on Hayek

Bernstein also suggests that hate speech laws would be Hayekian, too, but here I disagree. Hayek stressed repeatedly the importance of being able to communicate even highly unpleasant ideas, and being able to live even lifestyles that the majority considers morally repulsive. He very clearly limits the proper scope of legislation to actions directed toward others. Mere words don’t make the grade.

But the reason I brought up Hayek is merely to make Title II a bit more thinkable to libertarians. Other ways exist. We could, for example, invoke Robert Nozick’s theory of property acquisition — which requires compensation to those who are wronged. Who better to extract compensation from than those who racially discriminate?

We need to think along these lines not because it will make libertarians popular. There’s something deeply embarrassing, to be honest, about having this sort of cogitation in public. But we need to do it anyway, because the world has moved on, and because it certainly appears that one thing our intellectual ancestors insisted on has been falsified.

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.

Commenters at The Volokh Conspiracy have been asking us for comment about the controversial case Shelley vs. Kraemer (1948).  This case concerned racially restrictive (though nominally private) contracts for property transfer.

Suppose, as happened in Buchanan v. Warley, that the U.S. Supreme Court invalidated government-crafted racial zoning laws.  And suppose that in response, white property owners all agreed never to sell the properties in their racially segregated neighborhood to anyone but whites.  And they made private contracts to that effect.

Doesn’t this prove, the critics ask, that private means were more than adequate to keep discrimination in business?

I don’t think it proves nearly so much.  Indeed, I’d turn the question around somewhat, and I’d ask the following:  By what power does the federal government enforce a racially restrictive contract? It may well be that owners can write such covenants, and that they can voluntarily comply with them, but that the state might find itself powerless to enforce them.  This would be a happy outcome and would square the circle of state and private discrimination, at least in this area.

As I wrote in my paper “Never a Neutral State:  American Race Relations and Government Power”:

[I]t cannot be said that a restrictive covenant is a purely private act.  Although the freedom of contract has long and correctly been thought central to economic liberty, this freedom is self-evidently neither absolute nor strictly private; a contract is, after all, a formal demand for state action in certain circumstances.  Contracts to commit murder, or to engage in fraud, have never been valid, and this is obviously in keeping with a view of justice centered on individual rights:  Although, as the legal dictum has it, ‘agreements must be kept,’ this has never been an absolute injunction.  Not only would we find at the heart of these contracts an action inimical to the liberties of others, but we would also find it hypocritical that the state could be called to enforce a contract of this type while still justifying its own existence on the basis that it vindicates the rights of its citizens.

As these extreme examples show, limits on the power of government are also limits on what the government can be asked to do by private individuals, and thus even in contracts, some limits to state authority may apply.  A government… that is forbidden from applying the laws unequally based on race might also be forbidden from enforcing racially restrictive covenants.

This reasoning is not without its dangers, in that it implies some redrawing of what we usually think of as the public-private divide.  But it’s more or less what the Supreme Court concluded in Shelley:

These are not cases, as has been suggested, in which the States have merely abstained from action, leaving private individuals free to impose such discriminations as they see fit.  Rather, these are cases in which the States have made available to such individuals the full coercive power of government to deny petitioners, on the grounds of race or color, the enjoyment of property rights…

If we’re willing to accept that state action to enforce a contract remains state action all the same, then Shelley isn’t such a leap after all, and the supposedly “private” discrimination of the racial covenant was no such thing.  It was a state-enforced discriminatory action, and thus clearly impermissible.

Jason Kuznicki writes the following in support of Shelley v. Kraemer, in which the Supreme Court held that judicial enforcement of racially restrictive covenants was unconstitutional: “If we’re willing to accept that state action to enforce a contract remains state action all the same, then Shelley isn’t such a leap after all, and the supposedly “private” discrimination of the racial covenant was no such thing.  It was a state-enforced discriminatory action, and thus clearly impermissible.”

I agree with Kuznicki that judicial enforcement of restrictive covenants constitutes “state action,” and is therefore subject to the restrictions of the Fourteenth Amendment.  The problem, however, is that the Court failed to explain why this particular form of state action is a denial of “equal protection of the law,” which was the basis for holding it unconstitutional.  The answer cannot be that enforcing a private party’s discriminatory preferences is unconstitutional.  Even today, there is no doubt that if a white bigot called the police to throw a black person out of his house, and the police complied, this would be state action, but not a violation of equal protection of the laws.  Moreover, no court is going to hold that the judiciary is engaging is unconstitutional state action when it enforces a wide range of other contracts and other legal documents that include discriminatory provisions, such as a provision in a will that disinherits an heir if he marries a Catholic.

One can argue, therefore, that Shelley is a perfect legal realist case: the Court wanted to favor civil rights, pure and simple, and it just made up a rationale that it refused to follow in other contexts. In fact, however, while hardly a model of clarity, the Court does provide two plausible, even persuasive, justifications for its ruling in Shelley.

First, the state action involved in Shelley was of a different magnitude than it would be in a normal action for enforcement of a contract.  In Shelley, neither the buyer nor the seller wanted the property’s restrictive covenant enforced.  Rather, it was a third party, a neighbor, who brought the force of the state in.   Thus, the courts were being asked to enforce a discriminatory provision in a deed against the wishes of both the owner and purchaser of the subject property.  This sort of scenario provides more room for “public policy” considerations to come into play than if a party to the transaction at issue was trying to enforce a relevant contractual provision.

Second, while state enforcement of racial covenants may seem racially neutral, the Court pointed out that it knew of “no case in which a court, state or federal, has been called upon to enforce a covenant excluding members of the white majority from ownership or occupancy of real property on grounds of race or color.”  In other words, enforcement of restrictive covenants only operated in one direction, and that was to exclude African Americans from housing opportunities.  The Court was too deferential to the state courts to say so, but state courts typically refused to enforce all sorts of other, more minor, restrictions on alienability of property.  This suggests that enforcement of restrictive covenants may indeed have been not just state action, but discriminatory state action.

This argument receives further support from the fact that just about all states, including the ones involved in Shelley, had official or unofficial policies supporting residential segregation.  It’s therefore difficult to see the states’ judiciaries’ actions as completely sui generis contract enforcement, as opposed to being part and parcel of an official or semi-official government policy favoring racial segregation and exclusion.

Unfortunately, the Court muddied these arguments at the end of its opinion, by suggesting that even if blacks and whites were equally excluded from housing opportunities by restrictive covenants, enforcing such covenants would still be unconstitutional, because “equal protection of the laws is not achieved through indiscriminate imposition of inequalities.”

However, we need not accept all of the Court’s reasoning to agree that the Court was correct to hold that in historical context, and given the background common law rule disfavoring restraints on alienation, enforcing restrictive covenants was unconstitutional.  And we should also be able to agree that in other contexts, it’s perfectly constitutionally acceptable for courts to enforce contracts with provisions we find troubling, so long as courts do so even-handedly, enforcing a contractual provision favoring blacks over whites, or Muslims over Christians, or gays over straights, as quickly as the reverse.

Many concerns could be raised about racially restrictive deed covenants and the State, including:

1) the risk of defining “private action” out of existence;

2) the risk of the slippery slope (what other agreements might the State decide not to enforce?); and

3) the question whether enforcement or non-enforcement becomes a matter of public policy only because a coercive “public” agency – the State – has claimed a monopoly on enforcement. In contrast, in the private competitive legal system envisioned by Gustave de Molinari, the market (not to mention direct social action) could punish firms that honored racially restrictive covenants. But I’ll leave those considerations aside and confine my comment to but one area.

I should think that in a fully free society restrictive covenants in deeds would be unenforceable because they are feudal in nature and thus violate fundamental libertarian principles. A restrictive covenant constitutes a prohibition that “runs with the land” in perpetuity, permitting rule by the dead hand of the past. Under the covenant the buyer is said to be obligated not only to abide by the restriction himself, say, by never selling to a black person; he is also supposed to pass the restriction along in any resale. Why should that be enforceable? It has the appearance of a naked promise to perform or not perform some action in the future. How is it different from promising to marry someone and then changing your mind? If the restriction is violated, who has been wronged or deprived of just property? The former owner? How so? What if he dies? What about the owners of neighboring homes? Should they have legal recourse when they had no legal relationship with the buyer who violated the covenant?

I acknowledge that in throwing out the bathwater of racially restrictive covenants, I may also be throwing out some desirable babies. But my hunch is that the constructive things we might get from covenants could be achieved other ways. The virtue of my approach to invalidating racially restrictive covenants is that we would both strike another blow against racism and rid ourselves of the last vestiges of feudalism.