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.