In response, the libertarian Cato Institute hosted an online debate regarding how libertarians should approach anti-discrimination law. Several highly respected thinkers, including George Mason Law’s David Bernstein, participated, and they made a number of important points — among them that slavery and Jim Crow were deeply un-libertarian, and that libertarian values often informed contemporary arguments against them.
But the most important point the participants raised was this: By the 1960s, decades of state-mandated segregation (not to mention slavery before that) had created an entire caste system rooted in black inferiority. Why must such an extreme — and extremely un-libertarian — problem have a libertarian solution in order for libertarianism to be a good philosophy in general? Just as the necessity of Brown v. Board did not discredit originalism, the necessity of the civil-rights acts does not discredit libertarianism. In each case, an exception to a good rule was made to fight a deep-seated evil.
Further, the subsequent developments in anti-discrimination law brought to fruition libertarians’ concerns about government involvement in business. Current “civil-rights” law still bans discrimination against blacks (and Hispanics), but it allows discrimination against whites and Asians (via “affirmative action”) and makes it difficult for businesses to give employment tests that whites and minorities pass at different rates (this is called “disparate impact”) — even though whites and minorities pass virtually every test ever devised at different rates. As racism has become less and less of a problem, anti-discrimination law has become more and more burdensome.
And today, liberals seek to pin every social ill they perceive to the coattails of the civil-rights movement. If it was acceptable for courts and legislatures to go beyond their legitimate powers in the name of fighting Jim Crow, they reason, it must also be acceptable to use these tactics to fight everything from homophobia (courts must declare, Brown-style, a constitutional right to gay marriage) to “appearance discrimination” (Stanford Law’s Deborah L. Rhode suggests in her book The Beauty Bias that we ban such discrimination in the same way we banned racial discrimination). If anyone objects, liberals ask: Couldn’t those same objections have been used to defend racism? Rhode, for example, likens Hooters patrons who prefer attractive women as their waitresses to southern whites who didn’t want to interact with blacks.
Conservatives are stuck trying to navigate this minefield — trying to bat down dramatic expansions of government while defending procedurally similar measures that were enacted in the context of Jim Crow. Their task would be much easier if they frankly admitted that, in its fight against racism, America has used highly questionable means at key junctures — means that were legitimate only because of the extreme severity of the wrong they sought to remedy.
When race is viewed as an exception to the rules, rather than as a test that the rules themselves must pass, it becomes much harder for the Left to justify the various expansions of government power it seeks. No modern social ill — not homophobia, not “appearance discrimination,” not even today’s racism — is anywhere near as severe and damaging as racism was in the century following the Civil War.
If liberals want to fight those ills, they should do so within the confines of the Constitution, and they should debate the Right in the policy arena on the dangers of expanding government. Jim Crow warranted bending, and sometimes even ignoring, the rules that govern how laws are made. Today’s problems do not.