Robert, I enjoyed your column on The Beauty Bias, as well as Ramesh’s column last week on “The Right’s Civil Wrongs,” and I’d like to offer a few thoughts that largely repeat but also elaborate a bit on both of your themes.
Conservatives and libertarians have a number of good instincts: that the private sector almost always should be allowed to make its own decisions, that the federal government ought generally to defer to the states, and that courts should be wary of constitutionalizing policy disputes.
As I say, these are all good instincts, but alas they led many to the wrong conclusion with respect to civil-rights legislation in the 1960s. The line between public and private discrimination then was frequently blurred (for example, when local governments required segregation in private facilities); as Madison warned in The Federalist No. 10, sometimes factions can make oppression more likely at the state and local level; and the Constitution actually did prohibit much discrimination and gave Congress authority to ban it in other circumstances.
Conservatism is superior to libertarianism because it is less ideological and more readily acknowledges that circumstances matter. And in his 1992 book attacking most private-sector antidiscrimination laws — Forbidden Grounds — no less a libertarian than Richard Epstein concluded, “Knowing what I know today, if given an all or nothing choice, I should still have voted in favor of the Civil Rights Act in order to allow federal power to break the stranglehold of local government on race relations.”
In sum, racial discrimination presented a special case. But the conservative and libertarian instincts listed above are still good ones, and should not be discarded. It does not follow, say, that just because blacks are entitled to service in restaurants that therefore there should be a federal law prohibiting private discrimination in favor of the good-looking — as I read Professor Rhode suggesting in her Washington Post treatment of her book — or that Congress or the Supreme Court should mandate allowing same-sex marriages. That’s different.
