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…)