By now you’ve no doubt heard about Rand Paul’s comments on the Civil Rights Act. Many liberals and conservatives have been quick to denounce Paul’s defense of a very strong vision of what a right to freedom of association demands. To provide some context, I’d like to point you to Richard Epstein’s discussion of some of the ironies of the Civil Rights Act of 1964, outlined in a review of Glenn Loury’s book on how racial inequality works in the contemporary U.S.
I speak here of one curious omission from Loury’s field of vision: the basic prohibition, in Title VII of the 1964 Civil Rights Act, against discrimination based on race in the terms and conditions of employment. This sort of legislation has ambiguous economic consequences: Blacks who find jobs will receive some protection against dismissal, but at the same time that protection will make employers, fearing litigation, more reluctant to hire black workers in the first place. One would therefore expect that once Title VII swept away the explicit racial classifications common in the United States before 1964, progress through employment discrimination laws would be slower than many hoped, which has been the case since 1975 or so. Rather than an overall improvement in black wage levels, the result of Title VII would be a higher variation in the income of black workers, with the rich getting richer and the poor getting poorer, which seems to be part of the trend.
Epstein continues with a discussion of the impact of the CRA on racial preferences:
Loury likewise overlooks the fact that the 1964 Civil Rights Act actually slowed down private adoption of the affirmative action programs he defends. Title VII made it unlawful to discriminate against “any individual” on the ground of race, and it took nearly a decade and a half for the Supreme Court to perform the legal legerdemain necessary to reconcile racial preferences for blacks with this clear prohibition against affirmative action.
Loury’s confusion about the law leads to a second, more philosophical mistake: He fails to appreciate how liberal individualism bolsters the case for allowing (but never mandating) affirmative action.
Epstein goes on to explain the ways in which “private affirmative action is fully consistent with the psychological underpinnings and normative requirements of liberal individualism.”
My gut instinct, like that of most observers, is that the Civil Rights Act’s provisions regarding public accommodations were necessary to undermine a caste-like set of circumstances. Charles Lane of the Washington Post, a thoughtful and fair-minded journalist, has written a clarifying post on the subject.
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.
Conversely, it is precisely because of this nexus between private discrimination and public enforcement that the larger community, through the political and judicial process, acquires a valid interest in legislating against discrimination. The public is entitled to say whether their tax money should pay for arresting black trespassers on whites-only property.
Employment discrimination involves a different set of decisions and choices. Basically, there are real questions about whether or not we have the right mix of policies in place to combat the enduring legacy of enslavement and segregation. And there are legitimate questions about what a right to freedom of association demands, and what a liberal state can and can’t enforce. It’s depressing to see this debate play out the way it has, though it’s hardly surprising.