Bernstein on Discrimination and Liberty
If you’re not reading Cato Unbound — also known as my real job — you should be. Here’s David Bernstein, offering some new thinking on the old debate between property rights and nondiscrimination:
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.
Because I’m commenting on the panel, I don’t want to say too much. So I’ll just reiterate that anyone advocating “states’ rights” is presumptively no friend of liberty. Federalism, perhaps. States, though, do not have rights. They have power, and for that power ever to be just it must be applied impartially.
I’ll have a lot more to say about civil rights, and about Title II in particular, on Monday. And I’ll save my criticisms of Bernstein for later. (I do have a few…)
> States, though, do not have rights. They have power, and
> for that power ever to be just it must be applied impartially.
Thank you, I’m going to steal this shamelessly. Well phrased.Report
In defense of the Devil:
Any support I have for the “State’s Rights” position is not because I think that Mississippi *SHOULD* be able to ban gay marriage if it is so inclined to do so.
It is because I think that Iowa *SHOULD* be able to allow gay marriage if it is so inclined to do so.
It seems more likely, to me, that if these things are decided on a (trumpet fanfare) NATIONAL LEVEL that the decision will be for nobody to be allowed to enter into a same-sex union (civil or otherwise).
The dilemma isn’t one of “Gay Marriage or State’s Rights where same-sex couples can’t get married in pockets” from my perspective. It’s “No Gay Marriage or State’s Rights where same-sex couples can get married in pockets.”
My support for “State’s Rights” is usually of that form. It’s not because I think that States actually have rights. Of course they don’t. Only The Individual has rights. It’s because I know that the majority doesn’t give a crap about the rights of the individual. They care about exercising power and have no problem with doing so.
“State’s Rights” provides a hard line saying where various majorities have an end to their jurisdiction.Report
@Jaybird, All ‘principles’ depend on the moral ground of the actors. “States Rights” as a defense for the individual against the usurpations of the central regime is a beautiful things. “States Rights” utilized to deprive being of freedom is the devil’s work. The institution of “States Rights,” like the institution of the central gummint is a function of the morals/ethics “of the people.” If “the people” are a bunch of whining, lazy, thieving, immoral *ssholes, it’s really, really difficult to have a republic…the best form of gummint for human beings.Report
@Bob Cheeks,
” If “the people” are a bunch of whining, lazy, thieving, immoral *ssholes…”
You mean, if they’re people?Report
@JosephFM, Dude, you’re getting philosophical on me…being then dwells in the tension of existence between immanence and transcendence. Whatever they are, that’ not where they ‘dwell,’ now is it?Report
I’m strongly in favor of state’s rights. Mostly for the reason J has outlined above. Fundamentally, it’s a question of sovereignty. In order for Alabama or Afghanistan to stay out of my business, I must reciprocate. I don’t like what goes on in Darfur. That does not require that I advocate military adventurism or the folly of nation building.Report
@Cascadian,
I’m not terribly interested in vindicating state sovereignty, and I am especially uninterested in it when it comes in the context Bernstein mentions — the power of state officials to exercise racial discrimination.
As to discrimination by sexual orientation, I don’t find that privileging the state or the federal government advances the debate normatively at all. It might settle the issue politically, but that’s less interesting to me.Report
@Jason Kuznicki, Politicians who favor States’ Rights as a way of criticizing federal action they disapprove of rarely have problems with things like a constitutional amendment to outlaw same-sex marriage. As you say, it’s a tactical stand, not a principled one.Report
@Cascadian,
Doesn’t Alabama affect you? I mean they have two senators, several conrgess-critters and some electoral votes. Unless you would like to break up the union, I suspect I don’t entirely get your leave Alabama alone position.
I care about what happens in Alabama because it is part of my country. Afghanistan really isn’t.Report
@ThatPirateGuy, Alabama affects me a great deal. That’s why I favor a significantly weaker federal government. Breaking up the union would not be my first choice. However, I think nullification and secession are options.Report
From Bernstein: 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.
umm, no. It doesn’t follow AT ALL. Bernstein’s core problem is that he refuses to articulate his core principles about libertarianism, so that he can then erect and slay a whole series of strawmen. The reason that he won’t state what libertarianism is, is that the outcome is unpalatable to about 99% of all Americans. In a society as complex and interconnected as ours is, we are collectively incapable of refraining from punching each other in the nose all the time.
Just how many industries, farms and offices emit zero pollution and send zero waste to the landfill? None. If we’re not going to live with a regulatory environment, then Bernstein either needs to admit that his philosophy leads directly to a tremendous increase in externalities, or the tort system needs to be revised so that I, for example, can sue him for emitting harmful pollutants into the water, soil and atmosphere.Report
@Francis,
I’m not sure I follow what the tort system has to do with the issue at hand. It strikes me as being a different area of law, and one not so productively discussed at the moment.
Instead, here’s a libertarian core principle that might help you understand where we’re coming from on race: Nearly all libertarians are individualists. For us, the individual human being has a worth and a dignity that must not be compromised in the name of any collective. Especially not an unchosen one, like a race.
Individuals are to be considered first and foremost, and collective entities — states, churches, nations, races, even genders — we consider either less morally significant or not morally significant at all. Collectives, insofar as they are morally justified, are voluntary. Such voluntary groups are the reason we enter into society, and judging someone based on involuntary group membership is grossly unfair.
The question arises: If someone acts in this particular unfair way, what are the legitimate remedies? This is a difficult question for libertarians, in part because, as Bernstein notes, there is perhaps no end to it. But Bernstein and I would both agree that racial nondiscrimination laws make sense, given where we’ve been as a country and where we have yet to go. I’ll have more to say about this in the coming discussion.Report
@Jason Kuznicki, Rights without remedies aren’t rights, they’re wishful thinking.
A philosophy based on the supremacy of the individual (as opposed to family, clan, tribe, etc.) works for me, and I think that’s largely what the Founding Fathers, including version 2 that passed the 14th Amendment, were trying to do.
In order to give effect to that system of governance, we need one branch of government (the judiciary) to hold that in certain disputes between an individual and the executive branch of government, a particular individual is entitled to the remedy he seeks because his rights (to due process, whatever “due” means, and equal protection, whatever that means) are being infringed.
That’s the easy version of libertarianism, and where the fusion between liberalism and libertarianism (if one exists) is to be found.
The harder version of libertarianism holds that an individual is free to do what he wants so long as he doesn’t interfere with the freedom of another. This approach presents multiple problems. First, there’s no such thing in this world. Virtually every economic activity, when aggregated, harms another. Second, it allows for private discrimination. As this is nowadays considered socially unacceptable, hard libertarians find all sorts of (to me unconvincing) reasons why judicial remedies should exist to curb this practice. To me, though, the exceptions swallow the rule; once you go down the road of allowing the government to interfere with an individual’s freedom (to discriminate), there’s no particular stopping point on a government’s power to interfere with an individual’s freedom (to pollute, to sell useless medications, to sell rotten meat, to maintain a dangerous workplace, to fail to pay a living wage).
One common pushback by libertarians to this line of argument is that the free market coupled with the tort system provides an adequate, indeed a preferred, alternative to government regulation. But in our world, this would require providing disadvantaged people with meaningful access to the judicial system. Somehow, I never read about libertarians proposing that the government should pay for the costs incurred by private plaintiffs suing those who have harmed them. (What is the libertarian solution to Gulf Coast shrimpers hurt by the dead zones created by agricultural discharges feeding into the Mississippi River? What is the appropriate remedy to the indisputable harm caused by farmers to fishermen?)Report
@Jason Kuznicki,
The point he was making, regarding the tort system, is that if we do not have a regulatory system to prevent people/institutions from causing damage then we need an adequate system (ie. the tort system) for getting those institutions to compensate those they have damaged.
I think too many self-called “libertarians” have a history of attacking both these systems. They attack regulation for the standard reasons but also attack the tort system by propagating the myth of an “epidemic” of “frivolous” lawsuits and by supporting arbitrary caps on the amount of damages an injured party can collect.Report
@angullimala, I can’t see any principled form of libertarianism that would allow for a wholesale attack on the tort system. Do you have an example of someone making such an argument in the guise of libertarianism? Most such arguments seem to be made by “pro-business” conservatives who might steal libertarian rhetoric from time to time, but shouldn’t be confused with libertarians. Libertarians might occasionally call for reform of the system to make it less expensive to use, since they want people to use it more, but that’s another matter.Report