David Bernstein has an eminently reasonable take on private-sector anti-discrimination law over at Cato Unbound. Excerpt:
[T]o say the least, segregation and exclusion of African Americans in public places in the South wasn’t entirely a voluntary choice of business owners. Jim Crow segregation involved the equivalent of a white supremacist cartel. The cartel was enforced not just by overt government regulation like segregation laws, but also by the implicit threat of private violence and extra-legal harassment of anyone who challenged the racist status quo. This violence and extra-legal harassment was often undertaken with the approval of local officials; the latter, in fact, were often the perpetrators.
To break the southern Jim Crow cartel there were two options: (1) a federal law invalidating Jim Crow laws, along with a massive federal takeover of local government to prevent violence and threats against, and extralegal harassment of, those who chose to integrate; or (2) a federal law banning discrimination by private parties, so that threats of violence and harassment would generally be met with an appeal to the potential victim’s obligation to obey federal law. The former option was arguably more appealing from a libertarian perspective, but it was completely impractical.
I saw this, and wondered precisely about the claims in the second paragraph. (I hope there is discussion of it in the coming posts from Bernstein’s commentators.) First, what’s the argument that these were the only two options available? In general, we know, we cannot and do not imagine what sorts of arrangements people can make to solve problems when they are free to do so. Second, the idea is that law enforcement is so weak or corrupt that it cannot prevent violence and secure people’s physical safety, so instead a new law is created because that law can be enforced? The solution to a problem in gross government failure is more law? I know that is a standard argument but it is quite surprising when it comes from libertarians.
On the first point, I think the problem is that we don’t know that simply repealing Jim Crow would actually have made people free. The KKK & WCC could still have intimidated business owners into “making the right choice.” With the CRA, business owners could say, “I wish I could help, but I have to follow the law” and reasonably expect to be left alone. The assumption here is that it’s easier for the feds to monitor simply whether businesses are discriminating than it is also to monitor whether there are threats that are causing business to discriminate.
On the second point, the federal government at the time was less racist and corrupt than southern segregationist governments. So we should expect that federalizing civil rights policies would generally result in better policies & enforcement in this area than leaving it up to the states (at that time in history). Still not ideal, of course – this is definitely a world of the second best we’re discussing.
Jason, if theory #1 is right, wouldn’t that give us a simple solution to any protection racket problem? Pass a law saying that it is illegal to pay protection money. Then when the shakedown artists come along, you just say, “I wish I could help, but I have to follow the law,” and reasonably expect to be left alone.
There is something seriously wrong with that picture. But so far as I can see, the cases are analogous. Both depend on the inability of the government to provide physical protection. And if the solution is just more law in one, it’s hard to see why it’s not in the other. But, pretty obviously, it is not.
I take the point about federal officers vs. state and local officers, and I’m sure it does account for some of the actual success of the law. Still, the point is that we don’t know whether this is second best or not; we really have no idea at all of the opportunity costs. The first best option (leaving people actually free from legal constraint) was never tried. And we have good systemic reasons for thinking this left lots of possibilities for cooperative problem-solving (I’m thinking specifically of the problem of inadequate physical security) for people free of legal constraints to do so.
And of course all that is to leave aside the massive problems with instituting the legal principle that you can have legal standing to the reasons others have for what they do, which may make the private discrimination provisions not even second best.
I don’t think the analogy is quite exact. The federal government can monitor overt discrimination rather easily, unlike protection payments. Subtle discrimination, OTOH, might be too subtle to prove to one’s
tormentors.
As you say, the counterfactual is difficult to get at. But perhaps not impossible. After all, before Jim Crow was passed into law most of white southerners were still racist. Did businesses succumb to pressure & threats & segregate prior to the enactment of Jim Crow? That’s something a historian could actually investigate – and may have.
It can monitor explicit discrimination. If you say, “No blacks served,” that it can monitor. But as you say it cannot monitor any of the large varieties of ways in which people might immorally discriminate. If you have no black customers because you from time to time play music with racist lyrics, are you discriminating? Depends on why you play the music!
That’s why anti-discrimination law and prosecutions inevitably take the form of prosecuting proxies (aka quotas). There is no alternative to dealing with the problem. It is a byproduct of the coercive mandate that was absolutely predictable and foreseeable.That’s precisely why, Kant argued, coercive sanctions can apply only to behavior, not to reasons or motives for action. And the game of making of proxies has proven to be a massive goldmine for rent-seeking. And that is a big part of the point.
I’m not sure how much less racism there was in northern states, nor how many more whites were racist than blacks. Of course, black racism — though morally exactly as problematic as white racism — didn’t come with the political and economic power to be felt as problematic. But that just makes the point that the issue isn’t attitudes, and can’t be. The problem is the underlying institutions; in this case, the legal implementation of racism.
I think southern white racism after the Civil War had a somewhat different political character than northern racism. I’m no expert in this area, but smart folks like Rogers Smith have done some work in this area that I am very vaguely familiar with. Apparently the establishment of segregation was bound up with southern white working class self-perception and social status, as well as an attempt to establish an effectively independent southern white political system, effectively undoing the Civil War. So it had a much more “communitarian” character than “mere” individual-level prejudice and stereotyping. To defect from the system was to undermine the foundations of the dominant community’s power. I think that’s what would have made it difficult to erode the system quickly by voluntary means and political pressure within the South. An external force was necessary.
Sometimes I favor a government “over-reaction” in the opposite direction if it has leaned heavily in one direction for a long time. To take a much more mundane example, I think the supervised breakup of AT&T, along with temporary restrictions on mergers among its successor companies, was a better idea than simply legalizing competition. AT&T’s size would have made it a formidable competitor for a long time had the government not accelerated the process.
The risk, of course, is that measures that were supposed to be temporary become permanent. That’s certainly playing out with private sector civil rights legislation. But to a significant degree I think that’s a result of exogenous factors. If black per capita income were close to white per capita income, I don’t think there’d be much controversy about repealing some of these rules. But for various reasons, from the failure of public education in the cities to the drug war, we haven’t gotten there, and thus there’s a large constituency for keeping civil rights regs (& voluntary affirmative action) in place.
Jason, even if you’re right, when are there not exogenous factors? And to what extent does it make sense to think of them as exogenous?So far as I can see, the big move occurs in the conception of law at work. Once you decide that people can have claims on the way other people think – which is precisely what prohibitions on private discrimination consist in – there’s no unringing the bell. What happens after that is entirely endogenous to the complex interrelationship between law and culture. It’s obviously not just race, or gender, or ethnicity, or age, or sexual preference, or looks (!). It is a fundamental change in the way people think about their moral relationships and what the law entitles them to. Any assessment of consequences that does not countenance that change is simply not recognizing the costs of that way of trying to solve the problem.