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Two Rand Paul Afterthoughts

May 26th, 2010 · 30 Comments

Jacob Sullum has a piece at Reason that is, in part, a response to my Newsweek article on Rand Paul and the Civil Rights Act:

Paul’s more sophisticated critics argued not that he was racist but that he was unrealistic. Given the social environment created by centuries of government-backed slavery and oppression, they said, segregation in the South would not have been eliminated simply by withdrawing state support for it. Even if every racist law and government policy were abolished, racist business practices would have lingered as long as there was a demand for them or as long as owners were willing to pay an economic price for their own bigotry.

I think a point made by Richard Epstein bears repeating here: It was not merely “owners… willing to pay an economic price for their own bigotry” locking in segregation, even in the absence of Jim Crow laws. Rather, as Epstein observes:

“In 1964, every major public accommodation that operated a nationwide business was in favor of being forced to admit minorities.” National chains, he explained, feared desegregating in the South without the backing of the federal government because they feared boycotts, retribution and outright violence.

The CRA, in effect, gave cover to owners who reasonably feared local authorities would be unable or frankly unwilling to protect them from racist vigilantism. Also, while Jacob’s point about the long-term consequences of blurring public and private with the notion of “public accommodations” is well taken I wonder whether that might have been limited if folks making the property rights argument had been more willing to recognize justifications for specific, historically-grounded exceptions to the principle rather than framing it as demanding either a wholesale acceptance or rejection. A lot of people, quite understandably, concluded that if a libertarian view of property absolutely precluded any effort to remedy moral horror, that was pretty decisive evidence against the view generally.

Finally, while I think most of the libertarians I’ve talked to have more or less agreed with the position I staked out in the Newsweek piece—though there’s obvious sample bias there!—I’ve also had a few exchanges with dissenters. One interesting argument that occurred to me is that, compared with other mechanisms for attempting restitution for a long history of state crimes, the CRA has the morally attractive feature of putting the “burden” of the remedy on those who particularly deserve to bear it. Here’s how I put it in one such exchange:

It may help to think of it in terms of alternative remedies. The state has systematically enslaved and oppressed an entire group of people for generations; merely stopping seems to fall far short of adequate restitution. What should have been done, then? One obvious possibility is a massive system of reparations in the form of direct cash payments. But that approach has many obvious drawbacks. First, it would likely have been politically impossible. Second, to the extent that the real and pervasive injury involved the destruction of social and human capital and the ordering of institutions to exclude African Americans, it’s not clear how far this would have gone toward genuinely improving the position of the formerly disfavored class. Third, the level of redistribution involved in anything approaching an adequate compensation package would have entailed massive economic dislocation. Fourth, the burden would fall equally on those complicit in the crimes of the past and those who’d worked against them. Whereas the CRA, rather neatly, imposes a “cost” precisely on those likely to have been complicit in the previous wrongs: Property owners who supported segregation out of conviction rather than fear, and so probably bore substantial blame for the perpetuation of the Jim Crow regime. If we think it’s sometimes appropriate to attempt to correct injuries inflicted by the state itself—which even in the straightforward case of monetary compensation will involve taking the property of taxpayers—the CRA approach strikes me as a pretty decent mechanism, all things considered.


Addendum: I should note I’ve seen a few people pick up variants on Chuck Lane’s argument against the property-rights position, which I think is pretty shabby:

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.

I’ve seen arguments along similar lines appealing to public provision of various municipal services, upon which the government may place all sorts of strings. The trouble is, this line of argument clearly proves far too much. Suppose a private home owner is holding a (more or less) open house party, but turning away members of certain racial groups at the door. The enforcement mechanism is, of course, precisely the same: There’s nothing peculiar to “public accommodations” on this score. If we take his argument seriously, there is simply no private sphere, because any choice a property owner might make is ultimately backed by state power. As is my right to be protected from assault by people who might be offended by my political or religious views, or my sexual practices, or my annoying smirk. All our rights are ultimately enforced and protected by a system of law. To say that this entitles the state to decide which particular exercises of that freedom it deigns worthy of protection is just to say you don’t think there are any real rights. It is an argument I find it impossible to believe Lane would accept in other contexts.

And frankly, I rather doubt Lane really grounds his position on that argument in this context either. Suppose that a store set up a system whereby customers had to be individually buzzed in by a guard manning a closed-circuit camera. Would Lane say that this method of maintaining segregation would have to be permitted, so long as the owner is not relying on the power of police to exclude trespassers? My suspicion is that he wouldn’t. And that’s fine! Because there’s a much more straightforward argument—the restitutionist argument—underlying the intuition that the CRA was legitimate. But going that route involves acknowledging that there are conflicting valid claims here, and that the liberty interest burdened by antidiscrimination law (here limited to businesses as opposed to private homes and associations) is genuine, even if on balance plainly outweighed by the moral imperative to seek a remedy for centuries of state-backed racial oppression.

So why the more convoluted argument, when a more straightforward (and, to my mind, more compelling) one is readily available? Maybe it’s just a desire not to cede any ground to bigots, but I think what’s at work here is another kind of moral utopianism. It’s not enough to say that the CRA was a moral triumph on balance—Lane wants to be able to think of it as an unalloyed good involving no genuine trade-offs. So we get this strained effort to show that any apparent right or liberty burdened by the law is merely illusory. There is, perhaps ironically, a related psychological phenomenon called the Just World Hypothesis, which has itself played a role in many cases of group oppression. Briefly, the idea is that we like to believe we live in a basically fair universe, and in particular that our own society is just. So when we see that some particular group is badly treated, we (perversely) cast about for reasons that they must deserve it in order to preserve our picture of a just world. Lane’s yearning to see moral perfection in an ultimately just law is not so obviously repugnant, but in a world where we routinely have only a choice between greater and lesser evils, it’s almost always a moral mistake to try to define the lesser ones away.

Tags: Libertarian Theory


       

 

30 responses so far ↓

  • 1 Matt D // May 26, 2010 at 11:56 am

    This bit of Sullum’s piece jumped out at me:

    But before concluding that new infringements on liberty were necessary to remove the stain left by past infringements, consider some unforeseen consequences of the federal ban on private discrimination. The precedent has encouraged an assault on freedom of association, as illustrated by demands that private organizations such as the Boy Scouts, Christian student groups, and online dating services adopt gay-friendly policies.

    Oh, the horror!

    Seriously though–I’m somewhat inclined to agree with Sullum re. the Scouts and such, but I find it bewildering that with the scales weighted thus, he’d conclude that preserving segregation was the lesser evil.

    A lot of people, quite understandably, concluded that if a libertarian view of property absolutely precluded any effort to remedy moral horror, that was pretty decisive evidence against the view generally.

    I made a similar point a long time ago at Radley’s in regard to animal cruelty: if your moral intuition and your political philosophy are at odds, you might want to consider whether the latter is deficient in some way. It’s not to say your philosophy is totally bogus–just that it might need some refinement.

  • 2 mike farmer // May 26, 2010 at 12:17 pm

    I agree it was necessary, yet it’s now 2010, and going forward it seems prudent to judge any new powers related to property rights, or any basic rights for that matter, given to government with appropriate scepticism. It’s a good opportunity to debate basic rights in light of 21st century society — focusing solely on the old debate, which is settled. is distracting. Although Rand Paul is not necessarily a philosophical libertarian, he can bring a fresh new perspective which is sorely needed, and this controversy is a good impetus to reexamine where we’re at with protection of individual rights. A more approriate debate for the present is the mandate to buy health insurance. I’ll take the stand of saying — No, it’s a violation — I’m not in the “Party of No”, just the “Individual of No.”

  • 3 DivisionByZero // May 26, 2010 at 3:03 pm

    Maybe I’m just cynical but I think the problem most people have with the CRA and other “progressive” legislation is not that complicated. It’s not rooted in bigotry but rather a profound sense of injustice. Poor whites (for the most part) and even the “pull yourselves up by the bootstraps” white middle class feel that progressive legislation provides an unfair advantage to non-whites. It’s misguided but it is what it is and it is the reason that poor whites align with Republicans despite the fact it is not in their economic interest to do so. A lot of this libertarian rationalization for opposing the CRA is really just that, rationalization. It’s a seemingly intellectually legitimate reason to oppose it that isn’t based on bigotry but it’s not the real reason for opposition. It all goes back to a basic sense of unfairness.

  • 4 Daniel Buck // May 26, 2010 at 4:22 pm

    Um, sorry DivisionByZero, but the yawing logic lost me. The Democratic party was the party of segregation, not the Republican Party. Only after the passage of the 1964 Civil Rights Act did southern white voters — of all income levels I do believe — move in a R-ward direction. And I do not believe the “unfairness” of it all , as if making all citizens equal under the law is unfair, was the motivating factor. Just a guess.

    Second, are you saying that the libertarian argument against civil rights laws — to the extent there is one these days — is based on unfairness to whites? So the libertarian party has no intellectual basis (Cato,, call home); it’s the party of what, resentment, a cracker version of Le Pen?

    Third, segregation wasn’t just Lester Maddox denying service to blacks at his chicken bistro. It was a denial of the right to vote, to buy property, to marry, to stay in a hotel, to walk down the frigging street, to do just about anything any free person would wish to do.

    In reality, segregation infringed on everyone’s rights, because whites’ interactoions with blacks were similarily proscribed. A discussion for another day.

    Best,
    Dan

  • 5 DivisionByZero // May 26, 2010 at 6:25 pm

    Hi Dan,

    I am sorry if I wasn’t clear but you missed me on all points. I’m not sure what you mean by yawning logic but it’s all pretty tight depending on your perspective, I suppose. Perhaps I’ll clarify later.

    /0

  • 6 southpaw // May 26, 2010 at 10:35 pm

    Julian, I suggest you conduct an experiment to discover whether you have the rights to police assistance with respect to the door policy at your “(more or less) open [but no darkies]” house parties that you seem to think you have. The results may surprise you.

    Also, FYI, the right to exclude people from your property is not equivalent to the right to be protected from assault.

  • 7 southpaw // May 26, 2010 at 10:39 pm

    The adjective “your” is ill chosen above. I know you wouldn’t throw such a party. Sorry about that.

    Still, one doesn’t actually get de facto police bouncers for such functions.

  • 8 Daniel Buck // May 26, 2010 at 11:08 pm

    Yawing — moving unsteadily, weaving — was the word, not yawning.

    Best, Dan

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  • 10 Boonton // May 27, 2010 at 10:27 am

    1. There is no attack on the Scouts’s freedom of association. There is a fair question of how much support the gov’t can give an organization that discriminates. The Scounts long enjoyed unofficial support of the gov’t. Other organizations that explicitly do discriminate don’t get such official support. Can’t have it both ways, if one organization gets to use public facilities like the schools then they can’t discriminate unless the schools are open to all private groups on an equal basis. Making the Scouts choose was not attacking their freedom of association.

    2. “I’ve seen arguments along similar lines appealing to public provision of various municipal services, upon which the government may place all sorts of strings. The trouble is, this line of argument clearly proves far too much. Suppose a private home owner is holding a (more or less) open house party, but turning away members of certain racial groups at the door. ”

    I think Lane touches upon an important issue here. Law enforcement is a type of entitlement. I have a problem I call the police. I don’t have to pay a fee for every call. But there are limits. Suppose I had dozens of friends and I’m very fickle. Every day I’m calling the cops because I get mad at one or two friends and want to kick them out of the 24-7 house party I’m having.

    At some point, presumably before the police chief tells the mayor that three new full time cops need to be hired to field my endless calls, I’m going to be told I have to either knock it off or start paying a lot more than my neighbors.

    Where this is going is the justification for zoning laws. Business is not a pure ‘private property’ play. Creating a business (or even a private house) calls on the community for resourses. In return the community is entitled to make resonable demands in return. It isn’t quite fair to ask black citizens to pay taxes to enforce white segregated businesses. Yes a business might minimize its need to call the cops by barring its windows and turning its front door into a fortified bunker complete with bouncers and buzzing people in. While that may keep the calls to the police down somewhat it isn’t fair to the community to expect them to have such a place “imposed” on them. There is not a single business purchased in the US with an unconditional, “anything goes” deed. Since no one has ever purchased an unconditional property then how can reasonable conditions be considered a violation of property rights?

  • 11 Anderson // May 27, 2010 at 11:44 am

    Newsweek link busted?

  • 12 Julian Sanchez // May 27, 2010 at 2:08 pm

    Fixed.

  • 13 Seth // May 27, 2010 at 2:44 pm

    This is interesting, but I’m not sure I like the CRA-as-restitution argument, because it seems to imply that at some point, when the debt is paid down, we should consider rescinding it.

    I think the Chuck Lane argument is problematic for exactly the reasons you state. But it does strike me that the CRA is fundamentally correct — businesses that serve the public are NOT, in fact, exclusively private concerns. They form part of the infrastructure of a community, as much as the roads and the schools do.

    Imagine a small town with one or two black families. They are not numerous enough to support separate stores, nor wealthy enough to start stores of their own. If we are prepared to say that in theory every business owner in town could refuse to serve those families, then we are essentially saying that those families can be shut out of life in that town. If you can’t buy groceries or go to the bank or get your car fixed, you can’t go about the daily business of life. When you allow businesses to refuse service to people based on what they innately and unavoidably are, you create a situation in which people can be effectively redlined out of a certain community. And I think your property rights and freedom of association don’t give you the right to muscle me out of town.

    The CRA strikes, I think, a good balance. It may be that there are gray areas; membership in a private club like the Boy Scouts, for example. (Though I agree with Boonton that if you get support from the government you can’t really expect to be allowed to discriminate between classes of citizens.) But generally speaking (as you say above) the good served by giving all citizens the freedom to live and work and be productive in any community in the country, without fear of being shut out from the economic system of that community, vastly outweighs the admitted infringement on the absoluteness of our rights to private property and free association.

  • 14 mike farmer // May 27, 2010 at 3:09 pm

    “Creating a business (or even a private house) calls on the community for resourses. In return the community is entitled to make resonable demands in return.”

    Businesses and homes are taxed to pay for local government services. What “demands” is the community entitled to make other than the local government collect taxes and that the businesses obey the laws? What other reasonable demand is the community entitled to make on my home?

  • 15 Boonton // May 27, 2010 at 4:02 pm

    Businesses and homes are taxed to pay for local government services. What “demands” is the community entitled to make other than the local government collect taxes and that the businesses obey the laws?

    That’s a good question. Let’s imagine two business who are paying equal taxes. One is a quiet little gift and greeting card shop that in all of twenty years called the cops once on a shoplifter. The other is a roudy bar where fights break out every night and last year two cops got full disability from injuries they received breaking up one of these weekly riots that spilled out into the street.

    I think you’d agree the bar, even though it is paying taxes, is consuming a lot more of the community’s resources than the shop. Likewise the shop is probably more than a little annoyed at the taxes they pay. If the bar were made to disappear, a lot of the expense of the police force would go with it even though there’d be one less business paying tax. Of course the bar owner will likely see his payment of tax as buying an ‘all you can eat’ ticket! Maybe it is but who says the community only has two choices, ‘all you can eat’ or ‘ala cart’ pricing where an itemized bill is presented for every 911 call (in which case you might as well privitize all gov’t)?

    Why not say there’s a sliding scale? For taxes you get a ‘reasonable’ entitlement to community services. You get to call the police if you’re in trouble, your streets are plowed, the fire department comes if you’re on fire etc. There are things, though, the community can either charge you more for or decline entirely. My hypothetical ‘party house’ that goes 24-7 might require me to hire off duty cops at my own dime. My ‘fire worship’ house which burns a half ton of tires in the front yard every weekend, though, is out of bounds even if I’m willing to foot the bill for my own private fire department. Likewise setting up a ‘white-only’ Wal-Mart in the business district is something the community has a right to just say no too.

    This is only the extreme, though. There’s other efficiencies the community forces on you. For example retail shops tend to be in certain areas and residences other areas. This zoning makes sense both from the POV of the individual owners (house owners often would rather be near other houses and not busy shops) but also because of the efficiency in community resources. It’s easier to tailor collective services like roads, police and fire if there’s some control over the way the types of properties are spread out.

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  • 17 mike farmer // May 27, 2010 at 11:12 pm

    “This is only the extreme, though. There’s other efficiencies the community forces on you. For example retail shops tend to be in certain areas and residences other areas. This zoning makes sense both from the POV of the individual owners (house owners often would rather be near other houses and not busy shops) but also because of the efficiency in community resources. It’s easier to tailor collective services like roads, police and fire if there’s some control over the way the types of properties are spread out.”

    Yes, the zoning committee can plan better than the owners — of course. Committees are much wiser than business people who are trying to maximize their business, and who risk losing their investment. We should have committees that decide where we can live, in order to spread out certain types of individuals, matching them to neighborhoods to create the best, synchronized community.

  • 18 Mike // May 28, 2010 at 9:08 am

    The real problem it seems, by your argument, was that local government was unwilling to enforce the law against physical intimidation of those who would serve minorities. I find it interesting that the legal solution always seems to be to pass restrictions on the individual, rather than the local governments that are failing to uphold their duty.

    Sometimes I am amazed, though, after all those years there are any blacks left in the south. Bus tickets are expensive but it seems like it would have been worth it.

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  • 20 CaptBackslap // May 29, 2010 at 1:05 am

    Mike: I’ve actually heard/read a lot of black folks who lived in both the south and the north back then say that they preferred the south, because at least they knew where they stood with a given southern cracker. Yankee bigots were more subtle, but just as prevalent.

  • 21 Boonton // May 29, 2010 at 10:47 am

    Mike

    Yes, the zoning committee can plan better than the owners — of course. Committees are much wiser than business people who are trying to maximize their business, and who risk losing their investment.

    I didn’t mean to leave the thought dangling but the people who tend to make up the zoning committee or spend the most time influencing it tend to be those very same owners. And by no means are they not subject to abuse.

    But from the property rights side there is something to them. My decision to buy a piece of property is rightly self interested, but do I buy the entire property? In other words when I buy a house I’m normally buying a piece of property zoned for residences. It’s not really very convincing to say my property rights are being violated because the town won’t let me set up a autobody shop. The guy I brought the property from never had the right to set up a shop on it, how could I have brought such a right? This is a bit like condo associations. Yea they tell you what color the outside of your home has to be and prohibit you from putting certain decorations in your yard. At the same time when you brought the place you knew you weren’t buying a free ticket to do as you please. In fact you may have brought the place because you wanted to live in a place that had a certain uniformity.

    The real problem it seems, by your argument, was that local government was unwilling to enforce the law against physical intimidation of those who would serve minorities.

    Example? You mean there was a shop that was serving blacks and whites together but the police wouldn’t protect it from white hooligans? Maybe but that misses the issue. Most segregated businesses wanted to be segregated, they weren’t being intimidated by threats of white violence.

    CaptBackslap
    Mike: I’ve actually heard/read a lot of black folks who lived in both the south and the north back then say that they preferred the south, because at least they knew where they stood with a given southern cracker. Yankee bigots were more subtle, but just as prevalent.

    I think there’s some truth to that and I’m a bit surprised that the libertarian tact on Civil Rights seems to be blaming the south and only the south since they actually had segregation laws on the books (and the libertarian orthodoxy is all problems trace to gov’t policies). But at the turn of the century I don’t think this was true. Blacks voted with their feet and moved in mass to the cities of the north. Maybe in 1970 things were a bit like this where Jim Crow had ended in the south but the racism of the north was only partially confronted.

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  • 23 Daniel Buck // May 30, 2010 at 8:19 am

    Perhaps we can bring this 2 a.m. frosh-dorm bull session to a close with the news that Rand Paul has announced that he is not a libertarian (Time) and the Kentucky Libertarian Party has said (AP) the same.

    Libertarians everywhere can breathe a sigh of relief.

    Dan

  • 24 ThomasS // May 30, 2010 at 11:49 am

    Libertarians are right. Government force creates a mete-message that might makes right, not that “in this limited and highly moral situation force is warrented.” Our debt crisis and the coming inter-generational pain it will bring is the driect result of googoo government, starting with widows and ophan relief and then “saving” us from (fill in the blank) the great depression, the Nazis, bid “D” dicrimination. How much imagination does it take to see that once a gov is unleashed in one area it will turn its violence into all others as bad gov and money drives out good. So you all feel it was worth it? My life and freedom traded for your paltry sentimental desires? And you wonder why you fail again and again.

  • 25 Daniel Buck // May 31, 2010 at 7:28 am

    Come again? World War II, the civil rights struggle, and the depression are precisely the three examples that come to mind when I think of government muscle at its athletic best.

    Paltry sentimentality, on the other hand, would be wishing the Axis powers away with libertarian utopianism.

    Dan

  • 26 Barry // Jun 1, 2010 at 9:32 am

    DivisionByZero:

    “Maybe I’m just cynical but I think the problem most people have with the CRA and other “progressive” legislation is not that complicated. It’s not rooted in bigotry but rather a profound sense of injustice. Poor whites (for the most part) and even the “pull yourselves up by the bootstraps” white middle class feel that progressive legislation provides an unfair advantage to non-whites.”

    Forcing businesses to serve members of all races hurts poor whites? I also think that your logic is poor.

  • 27 Barry // Jun 1, 2010 at 9:36 am

    I’d add a couple of comments:

    First, if Rand is going to play the libertarian card when opposing the CRA, he’d better be a libertarian (not perfect, but within normal human inperfections). Last I heard, he was far from being a libertarian, and the LP of Kentucky had disowned him. That gets rid of his libertarianism as a reason.

    Second, it’s pretty messed up when alleged libertarians are trying to reopen the civil rights struggle, and not from the side of good. It does give the impression that perhaps these guys believe that the wrong side won.

  • 28 sam // Jun 4, 2010 at 9:54 am

    “Briefly, the idea is that we like to believe we live in a basically fair universe”

    Well, the rain does fall on the just and the unjust equally.

  • 29 Barry // Jun 4, 2010 at 11:12 am

    Yes, but the unjust are more likely to have raincoats, cars and houses.

  • 30 mrisley // Jun 15, 2010 at 1:01 am

    My problem with Rand Paul’s comments have precisely to do with his ideology. There are conservatives who doubt that the elected representatives of our government have the ability to identify generally accepted problems needing solving. Then there are people who believe that even if they can be identified, that the government doesn’t have the effective wherewithal to solve them. Conservatives generally believe one or both of these things. In the case of CRA, it is generally common wisdom that that discrimination was a problem and that the act helped solve it.

    Paul, on the other hand, in his objections to the CRA seems to claim that, even in a case where in retrospect the government identified and solved a problem, that the government should have no hand in the issue. This is a terrible philosophy. There are issues that will receive general consensus that need to be addressed. I suspect that climate change will be one of them. I fear that Paul and similar ideologues will retreat to libertarian dogma at the great expense of humanity. Even conservatives should be appalled by the prospect that great danger and injustice should be ignored. While progressives and conservatives and the American people should have a healthy dialogue about the problems that should be addressed, let’s not pretend that there have been issues addressed successfully by the people’s representatives. Let’s get rid of Paul’s insanities and converse openly (with open minds) about how and which policy actions have increased prosperity and justice (we are better off than 200 years ago) and about which issues deserve collection attention and action now.

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