Richard Epstein on Rand Paul’s Gaffe
What would happen if we repealed Title II of the 1964 Civil Rights Act, which prohibits private businesses from discriminating by race? Richard Epstein answers, I think rightly:
Repeal would produce quite a stir. Every company from McDonald’s and Wal-Mart on down that wants to keep its customer base, its employees and its own sanity, would announce in no uncertain terms that it intended to operate its business for the benefit of all its customers exactly as it did when Title II was in effect. Some companies might create hot lines to report incidents; others would impose sanctions on deviant employees. The expense to recreate the current legal environment by private means would lead to a mad scramble. To avoid that nightmarish prospect these same companies would fiercely oppose the repeal of Title II.
Which I think is about right. Among others, the intersection of “companies who would revert to Jim Crow” and “companies who voluntarily adopted their own GLBT nondiscrimination policies” is the empty set.
Still, we keep the law on the books not so much to stop the hordes of would-be offenders (they catch a miscreant here or there, yes), but to signal our intentions and to pin the cost of that signaling on the taxpayer rather than the corporation. A price to pay, but a small one. Is it possible that there’s even a gain in efficiency here, as there’s less duplicated effort in the signaling?