June 28, 2010

Always That Last Leap

Justin Katz

I would very much like to be won over by Ramesh Ponnuru's argument against libertarian reservations about the Civil Rights Act (recently in the public consciousness thanks to Republican U.S. Senate Candidate from Kentucky Rand Paul. But I cannot escape the conclusion that Ponnuru's dual structures of legalism and appeals to legislative judgment never quite eliminate the leap of just wanting it to be so — that is, just wanting Congress to have the power to compel private citizens acting in private capacity to determine the criteria by which they may act.

... Jim Crow was a deeply rooted social system with many facets that blurred the private-public distinction. Governments discriminated against citizens, and ordered the private sector to discriminate. Privately organized terrorism was allowed by the state. It was entirely reasonable for a constitutionally conscientious legislator to conclude that the only way for Congress to enforce the guarantee that states offer equal protection to all citizens was to uproot the whole system: Force the states to allow blacks to vote; require hotels and theaters to treat customers without regard to race; ban employers from considering race as well; end every part of the system that could be ended.

If this reasoning suffices to overcome constitutional scruples about the legislation, it should also suffice to overcome libertarian ones. One might believe that in general people should be free to hire or fire employees on whatever basis they wish, and set a high bar for the infringement of this freedom, while also believing that in the specific circumstances legislators faced in the 1960s this freedom had to be curtailed in order to end a wicked and coercive status quo.

Reading the essay, I was wholly with Ponnuru through this point and hoping that his considerable intellect would enable an a-ha against my libertarian tendencies, but then he goes on as follows:

Note, however, that this reasoning, depending as it does on the peculiar circumstances Congress faced, cannot justify just any congressional enactment in the name of equality. It would be implausible to argue, for example, that Congress had to outlaw age discrimination for the elderly to enjoy equal protection. Nor, I think, could a legislator argue with a straight face that requiring universities and employers to extend preferential treatment to black applicants would be justified as a way to enforce the Fourteenth Amendment.

Sure, the "peculiar circumstances" argument is plausible, and it's certainly one I would make against extensions of equality-by-dictat, but it's not quite adequate to the libertarian challenge. Ponnuru argues, essentially, that (owing to the 14th and 15th amendments) the Constitution gives Congress the power to pass such laws and that doing so remains a matter of legislative judgment. It may be implausible to say that Congress must include other forms of discrimination, but history has surely proven that legislators are perfectly capable of finding justification on other grounds.

After all, at root, the anti-discrimination movement takes as a given that all of the tendencies that they loathe are functions of "a deeply rooted social system." What libertarians would need — what I need, frankly — is a reason, in the law, that only matters of race — especially those tied to our national original sin of slavery — justify the governments telling people whom they must hire and with whom they must associate if they're inclined toward certain activities.

Furthermore, with the advantage of retrospect, it's still reasonable to wonder whether racial strife wouldn't have dissipated more rapidly had it come via the mechanism of private acts of condemnation.

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I've had this argument at least two dozen times over my life, so let me spare you the suspense.

They begin with a laughable Constitutional argument.

They move into an "ends justifies the means" utilitarian argument.

They end with an accusation of racism or cruel indifference.

Posted by: Dan at June 28, 2010 1:56 PM

F**k this "argument".If a Black man could fight in this country's wars and then come home and not be allowed to buy a soda at a lunch counter,vote(somewhat more important),take a dump in a public toilet,or even drink from a water fountain,I say it went against the grain of everything this country is about.
If it hadn't been for that evil system,we wouldn't be arguing about affirmative action.
School segregation was horrendous.
I had to girlfriends in high school-one Jamaican and one Puerto Rican(not my wife)and I'd have resented not being able to have met them.
On this issue there is no valid point of view to denying civil rights.

Posted by: joe bernstein at June 28, 2010 3:16 PM

"On this issue there is no valid point of view to denying civil rights."

Civil rights are everyone's birthright, Joe, they aren't granted by the government and protecting them is what libertarianism is all about.

Don't forget from where American racism obtained its true power. School segregation was imposed by the state. Jim crow laws were imposed by the state. Slavery was endorsed and enforced by the state. If you want to eliminate those barriers to all of our citizens, then you are just echoing what libertarians have been saying since well before the Civil War, when doing so was not so popular. But we have to be careful not to become hypocritical by forcing people to engage in private conduct that we find more tasteful through statist coercion.

Just because some business owner somewhere might choose to discriminate (and harm his own business in the process) doesn't give you or anyone else the right to cram a clusterf*ck piece of legislation like Title VII down everyone's throats via the coercive power of the state. I can't even begin to list the reprehensible and horrific side effects of that component of the Civil Rights Act alone, and I'm not talking about anything having to do with invidious discrimination. Let's just say that it has become a particularly lucrative cottage industry in itself for plaintiff's attorneys and disgruntled workers seeking vengeance upon their employers.

Just like we may not approve of everything people say, we support their right to say it. Similarly, just because we may not approve of the way people hire or which customers they wish to serve, we should support their right to engage in that irrational behavior. Rights are only meaningful if they end where somebody else's begin.

Posted by: Dan at June 28, 2010 4:14 PM

I should have included this in my original post, but to any of the Civil Rights Act supporters here, I have an illustrative exercise for you.

Imagine you are a public or private employer using some sort of a merit-based qualifying examination in hiring. Tell us exactly what you would do to ensure that you could not be successfully sued under a Title VII disparate impact lawsuit.

If you can figure out a clear way to avoid such liability, then you are a brighter mind than all of the leading legal scholars on the issue combined.

Posted by: Dan at June 28, 2010 4:25 PM

What libertarians would need — what I need, frankly — is a reason, in the law, that only matters of race — especially those tied to our national original sin of slavery — justify the governments telling people whom they must hire and with whom they must associate if they're inclined toward certain activities.

Furthermore, with the advantage of retrospect, it's still reasonable to wonder whether racial strife wouldn't have dissipated more rapidly had it come via the mechanism of private acts of condemnation.

That's Katz.

Then there was this,

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

From the Declaration of Independence. Thanks for a reminder of what we are about to celebrate on this July 4th.

Posted by: Phil at June 28, 2010 6:11 PM

Good choice of quotation, Phil. Note that the Declaration refers to "the Right of the People," not "the Right of the Government" or "the Right of the Federal Government over the State Governments."

And again, disallowing governments from discriminating was inarguably just. The question is how best to get private citizens in their capacity as such to stop doing so. Government force is not necessarily the optimal strategy to effect a particular change, and it's certainly not healthy as a general principle.

Posted by: Justin Katz at June 28, 2010 6:27 PM

By Phil's logic, there is no difference between the public and private sector and the Constitution restricts private citizens just as it does government. Even the smallest decisions of everyday life become political and regulable i.e. totalitarianism.

Posted by: Dan at June 28, 2010 8:23 PM

"all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

The author was, of course, a slave owner.

And when he said "all MEN are created equal," he meant white males.

Posted by: brassband at June 28, 2010 8:38 PM

Where I see a problem with the libertarian view point is in its insistence in drawing the distinction between private and state power. This seems to assume that the state is acting in its own interests against those of private citizens. But this is simply not the case. The state does not, has never and will never act solely in its own interest. It is always representing some one's interests somewhere. The Civil Rights Act was written to undo state support of white economic and social supremacy. If the federal government can protect the rights of segregationist states - as it did throughout the Jim Crow era - why is not justified in protecting the interests of black Americans?

Posted by: Ron at June 28, 2010 10:48 PM

Yikes, Ron. I don't even know where to begin with your post. So let's start at the VERY beginning.

The reason libertarians create a hard separation between government and private action is because we have an understanding of what government actually is. Government is a monopoly on initiation of violence. It is nothing more than this, it is nothing less than this. The fundamental difference between government and the private sector is that government can "legitimately" use violence against people to coerce them to behave a certain way. The private sector, absent government involvement, is forbidden from initiating violence against other individuals (as it should be). This is why businesses cannot force you to buy their services if you don't want to, but the government can.

Now that we understand what government is, let's discuss why it is a problem when government discriminates but not when private businesses discriminate. When government discriminates, it is discriminating within its coercive monopoly of which everyone has to participate by law. It makes villains out of everyone, and no one can escape the effects. When private businesses discriminate, people can simply gain employment elsewhere or choose to do business elsewhere (which would surely happen today if a major corporation openly discriminated). No business can ever force you to transact with it against your will unless it is given the power to do so by government itself. And in order to maintain mutuality of liberty and property rights, no business should have to employ you against their will if they do not want to do so, for whatever reason. In changing the law so that businesses no longer have the liberty to hire whomever they wish for whatever reason they wish, we have simply replaced one evil (private discrimination) with a much more dangerous evil (systemic loss of liberty).

The Civil Rights Act was not meant to undo Jim Crow laws. The repeal of Jim Crow laws accomplished that goal. The Civil Rights Act was meant to go far beyond that and to give the federal government unprecedented power over private employers. It didn't stop there either. This was the beginning of a long, winding road to socialized control and regulation that has now touched almost every aspect of business. And because it has occurred on the federal level, businesses can no longer simply relocate to another state to avoid bad or overly burdensome laws. So they dissolve or leave the country, and everyone loses except the politicians. The corruption, rent-seeking, and inefficiency problems that inevitably result from the regulation of businesses that manage to stay open and comply are another extremely troubling story for another time. A summary is that without the extremely broad regulatory power that the federal government holds today, there wouldn't be any lobbyists or million dollar corporate campaign contributions.

Posted by: Dan at June 28, 2010 11:31 PM

Talking with and meeting a lot of people that were born and lived in Hawaii some still harbor great resentment and dislike for the mainland especially the south.

Those women who fell in love with the GIs and married them and had children but when the GI, sailor, marine or airman was being relocated back to the mainland and stationed down south had to figure out what to do with their wife and children by legal marriage because they were darker skin.

Some have told me their husbands were advised to leave them here and others who took their family to the states their wives and children were treated as if they were African-American and just totally discriminated against. One lady who grew up in the south as a child gets so worked when talking about her time in the south you think she is going to take a gun out and start shooting!

I remember my Air Force Irish Tech. Sergeant was a very bitter man because he lost his Japanese wife and only son because he was re-stationed to the south.

There has never been any form of slavery practiced in Hawaii. All of the plantations were operated with contract labor.

It’s a sad testament to the USA that Hawaii still has classes on discrimination and segregation for school kids to take before going to mainland private schools or colleges unprepared.

Posted by: Ken at June 29, 2010 1:17 AM

Ken - At first I thought you were a troll, but now I think you just have a Rainman-like obsessive compulsion to talk about Hawaii.

Nobody here cares about Hawaii. This is a Rhode Island blog. Please stop talking about Hawaii.

Posted by: Dan at June 29, 2010 1:45 AM

The main problem with comparisons to Hawaii is that one couldn't find two more different states except for the fact that the ocean is integral to the character of both.
It takes a little more effort than driving up 95 and settling into entitlement heaven to get to hawaii-it's an island state in the middle of the Pacific.
The weather is less extreme and they have volcanoes there.
The problems Hawaii faces and how they're dealt with bear little resemblance to RI's situation.
We have to be concerned with hurricanes,they with tsunamis.

Posted by: joe bernstein at June 29, 2010 5:04 AM

My take on it is this:

1. It makes sense to me that the natural rights guaranteed by the Constitution would be enforceable against private discrimination as well as public. Those things that are truly rights should be inviolable by anyone. However, this requires a strict constitutionalist reading of what those rights are, and not the inflated (i.e., devalued) rights of "groups" as speciously defined by the cultural Marxists (google Frankfurt School if this term is confusing).

2. Legislation to end such discrimination makes total sense. What makes no sense at all is legislation that forces other citizens to pay for or otherwise accommodate amends, reparations, or overcompensating for past discrimination through "reverse discrimination." Violating one person's rights to compensate for someone else’s past injustices is as evil as those injustices were.

Posted by: BobN at June 29, 2010 7:35 AM


I lived in Rhode Island for over 60 years.

Rhode Island is not going to crawl out of the hole it’s in if it keeps looking within and operating business as usual without looking outside at what other states are doing to get new ideas that might work in Rhode Island and excel the state forward to new prosperity.

The only time Rhode Island looks out is to compare itself with Massachusetts and Connecticut which both states are a lot larger than Rhode Island and still trapped in the confines of New England Region.

The only reason I compare Rhode Island and Hawaii is because both states have the same political make up a Republican Governor and Democratic controlled General Assembly.

The island I now reside on Oahu is about 72% size of Rhode Island land mass, has 80% total state population and accounts for 75% of the state’s total GDP. Hawaii and Rhode Island are about the same in population.

Rhode Island enjoys being part of the mainland with a major transportation corridor through the state and calls itself “The Ocean State” whereas Hawaii is the most isolated population center in the world and also a major mid-point Pacific transportation center.

Rhode Island was the first to declare independence and write its state constitution and Hawaii was the last to be granted statehood joining the United States and writing its state constitution.

With the above said; why is one of the states successful and the other state hanging on by a fingernail?

As far as discrimination, segregation, civil rights, slavery and Jim Crow Rhode Island was a player where Hawaii had no part in it even when New England missionaries traveled to Hawaii setting up religious shop and bring mainland social practices. All the Plantations were operated with contract labor and the owners did try to segregate the workers by ethnicity out of fear of worker uprisings. Slavery was never practiced nor was it part of Polynesian life in Hawaii.

By contrast Rhode Island has a great number of ethnic and wealth neighborhoods also a ruling class of whites where in Hawaii all residents are considered minorities. There is no majority or ruling race in Hawaii. There are no ethnic neighborhoods in Hawaii. All people live together regardless of ethnic origin, class, status or wealth.

According to the US Census Bureau Hawaii has the highest percentage of mixed race population in the nation.

So how it is that one state is having a great time with everyone getting along with each other and prospering even during the recession while the other state is still fighting the civil war and not prospering? Civil was over 200 years ago!

joe Bernstein,

There are only two active volcanoes in Hawaii. Kilauea volcano is the worlds most active and located on the Big Island of Hawaii and 20 mile south of the Big Island is “Lo'ihi” which has risen three miles from the ocean floor to just about 3,000 feet below the sea. Should break the surface in about another 100,000 years.

Also Hawaii has besides tsunamis we have a very active hurricane season from Jun. to Nov. Our hurricanes start near Puerto Escondido, Mexico in very warm waters and travel northwest into our colder waters and mostly fall apart however some make it to Hawaii and since 1949 a total of 37 tropical cyclones have affected the Hawaiian island chain with 10 making direct island strikes mostly on islands of Kauai and the Big Island of Hawaii. Hawaii's most devastating storm, Iniki in 1992, came from the south to pass directly over the Island of Kauai on Sept. 10-11, 1992 killing six people and doing $2.3 billion damage. Almost every roof was blown off structures including large hotel/Resorts.

Posted by: Ken at June 29, 2010 6:43 PM

This Ken guy can't be for real. He can't be.

Posted by: Dan at June 29, 2010 6:54 PM

Ken-yes,I know you have BIG storms,but don't they call them typhoons out there?
You also have Dog the Bounty Hunter and his weird family-that's reason enough to stay away :)).

Posted by: joe bernstein at June 29, 2010 9:08 PM

Let me tell you a funny story about reparations in the south. Now that you heard that word...I can guess what you are probably thinking!

But, no, it was not about money going to former slaves for reparations! It was about the southern gentry and landowners that fought HARD in Washington DC and demanded to be paid for all the "goods" (slaves) which the North took away from them after the Civil War. They also wanted to be repaid for a lot of the other harm done to them.........

It would be laughable if it wasn't true! It was the southern white man who came up with the idea of reparations...but for HIMSELF.

Posted by: Stuart at June 29, 2010 9:23 PM

joe bernstein,

Joe you’re ex-Air Force like me! If I remember correctly you were a crew chief and I was flight crew RO! You got me holding my side from chuckling with your statement!

As a general rule, cyclones are given the name “hurricane” in the Western hemisphere (the North Atlantic Ocean, the Northeast Pacific Ocean east of the dateline, or the South Pacific Ocean east of 160E), and the term “typhoon” is applied in the Eastern hemisphere (the Northwest Pacific Ocean west of the dateline). Hawaii is in the east Pacific basin so it’s “Hurricanes” and BTW we already had a CAT-5 hurricane now working on name “Estelle” while you guys (Atlantic) are working on name “Alex” (Pacific was suppose to have a lower number this year).

A&E TV “Dog the Bounty Hunter” is a lot of hype and blown up for TV. Yes he does go into some real far out football field or two block size areas of Hawaii but if you are a local and people recognize you and you don’t carry a chip on your shoulder you will be alright.

Don’t judge the state by what you see on TV. Walt Disney Co. is building the first ever out of theme park Hotel/Resort 20min from my house because Hawaii islands are family atmostphere however this September 2010 CBS is bringing back an updated “Hawaii Five-O” on Monday nights entirely shot in modern Hawaii filming starting in July 2010; ABC TV will start "Off the Map" prime-time show filmed on Hawaii.

It depends on which island you are on because Oahu is the most cosmopolitan (NYC style party till 4 AM about 70,000 tourist daily) but in 15 min you can be lost in remote woods or secluded beach (only 30% of island is developed) All the rest of the islands are not that developed except in tourist areas with Kauai being the most tropical with a lot of southern Cal. drop-out hippies and US missile defense testing range. Maui is where all your movie/TV stars and NASA are. Big Island of Hawaii is where you’ll find scientist, astronomers, and world’s most telescopes in one place and largest telescope (30 meter) in the world plus State of Hawaii is applying for a “Space Port license”.

Joe did you know State of Hawaii will give a 100% disabled Vet $5,000 to purchase a house or modify existing to be ADA accessible in Hawaii, exempts all property tax above minimum tax per year (Honolulu=$100, Kauai=$25, Maui=$150, Hawaii=$100), no property tax on cars, boats or motorcycles, special Vet license plates no extra cost (pick specific one to military campaign and no personal state income tax plus VA will finance mortgage up to $1,000,000.00 with 0 down, no points and no closing costs in Hawaii? VA 60% to 100% IU status monthly allotment is about $2,299. That is what you call a state and VA showing appreciation for your sacrifice and service!

Posted by: Ken at June 30, 2010 12:23 AM

Ken-to be accurate I was ground maintenance crew,but wound up flying a lot anyway because of the nature of my unit and the partuicular type of missions we flew on occasion,like Daisycutter drops when they needed someone on board who could fix dual rails if there was a hitch(there never was)and I was in one crash,but no wings and no flight pay.
My cousin who was a Marine flier for a few decades,was stationed at Kanoehe a few time and liked it,but he was a surfer,so what better place to be?

Posted by: joe bernstein at June 30, 2010 1:57 AM

joe bernstein,

I was in one crash also no wings but Radio Operator because in voc tech high school electronics and junior college electronics I learned vacuum tube radios and repair. I was also AF trained and responsible for installing secure voice and repair on all the squadron aircraft which became a nightmare between flying and ground work! I was a very scarce commodity when Air Force started bringing out old WWII aircraft during Nam. I was an E4 but enjoyed a lot of extra perks and above generous pay for an E4 especially with all the out country TDY and subsistence pay. Our crew chief was an E7 and the rest were officer grade up to O6. Because I was comm/nav/electronics sometimes command pilot would have me relieve co-pilot so I got OJT stick time.

If I could do it again I’d pack my bags tonight with no questions asked! Just point me in the direction!

Your cousin was on the Windward side of Oahu about 2 miles from where Obama vacations in an approximately $8 million vacation rental. If he liked to surf he’d head for north shore or Waikiki where larger waves are. Kaneohe area is beautiful and laid back living 25 min from Waikiki Beach with the sea on 3 sides and Koolau Mountain range with cascading waterfalls off the tropical mountains on 4th side. Sunrise are spectacular but too much rain and humid for me!

Kaneohe MCB is a peninsula jutting out into the bay. The Marines throw a large 3 day party every year they call “Bay Fest” and throw open the gates to rock N’ roll and country music with nightly fireworks and midway rides. The windward side is also horse country with rodeos and weekly polo matches. The Air Force has a large R&R center on that side down the road with 2-bedroom/kitchen/living room cabins on the beach. There is a large sand bar in Kaneohe Bay the party crowd like to gather with a floating spontaneous bar (by whatever establishment) and music band on a floating stage or on the sand with portable generators and it’s party time for the boaters leading to maybe a spring break type event after so many drinks! Love the eye candy!

The Army, Navy and Air Force also throw their own parties it's like who can out do the other each year!

Posted by: Ken at June 30, 2010 3:19 AM

"I've spoken of the shining city all my political life, but I don't know if I ever quite communicated what I saw when I said it. But in my mind it was a tall proud city built on rocks stronger than oceans, wind-swept, God-blessed, and teeming with people of all kinds living in harmony and peace, a city with free ports that hummed with commerce and creativity, and if there had to be city walls, the walls had doors and the doors were open to anyone with the will and the heart to get here. That's how I saw it and see it still." Ronald Reagan. ????. The comments of Dan and Brassband and some of the others seem rather small now don't they..
That Reagan could sure turn a phrase. But he said that after being President for 8 years. So clearly he's was a voice of government. What say you Dan? Government can be an opposing force or a force for popular will. When many people sided with a minority people in the 1960's government acted upon their request. Remember that the government process regarding civil rights took nearly 50 years. So this question about private verses public is kind of like the chicken and egg. Private individuals asked for and saw redress through government.

Posted by: DavidS at June 30, 2010 7:24 PM
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