Prominent libertarian politician Rand Paul recently caused a stir by claiming that he didn’t support parts of the Civil Rights Act of 1964, specifically the parts applying non-discrimination legislation to private businesses. Like most libertarians, he believes that if private restaurant owners, for example, want to prevent blacks from eating there, then that’s their right. Similarly, banks should be allowed not to lend to blacks, real-estate agents not to sell to blacks, private homeowner groups should be able to band together and keep out blacks etc. Same when the targets are Jews, gays, immigrants and so on.
The standard libertarian position is that only government enforced or government protected discrimination is wrong. Private actors should be allowed to discriminate. A private restaurant owner for instance should be allowed to refuse to serve blacks. However, government rules forcing restaurant owners not to serve blacks are not allowed, even though for the blacks in question the results are much the same.
It’s not that most libertarians think this kind of discrimination is acceptable and would engage in it themselves. They reject legislation against private discrimination because they consider the right to private property and the sovereignty of property owners much more important than the fight against private discrimination. They also argue that market mechanisms, which they also like a whole lot, will – over time – weed out such discrimination. A restaurant owner who refuses to serve blacks will do a lot worse than his competitors who are more open minded. He will lose benefits of scale, will have to raise his prices and ultimately also lose the bigoted white customers who detest eating in the presence of blacks but detest even more paying unreasonable prices.
Here’s a good statement of the libertarian position by a self-confessed libertarian:
(1) Private discrimination should, in general, be legal (this includes affirmative action preferences, btw). Many libertarians would make exceptions for cases of monopoly power, and most would ban private discrimination when the government itself ensured the monopoly by law, as with common carriers like trains; (2) The government may not discriminate. If necessary, the federal government should step in to prevent state and local governments from discriminating; (3) The government may not force private parties to discriminate, and the federal government should, if necessary, step in to prevent state and local governments from forcing private parties to discriminate; (4) The government must protect members of minority groups and those who seek to associate with them from private violence. If the state and local government won’t do so, the federal government should step in. (source)
Note the mention of violence in this quote: private violence against blacks isn’t allowed, private discrimination is. Why the difference? Again, property rights. Laws against violence don’t usually violate anyone’s property rights.
Now, what’s the problem with this libertarian position? Property rights are obviously very important. You don’t need to be a libertarian to believe that. I argued strongly in favor of property rights here. Likewise, the free market does an enormous amount of good. The problem with the libertarian view is absolutism and a rejection of value pluralism. There are many values in life, and many different strategies to realize them. And sometimes, some values or strategies come into conflict with each other. When that happens – as is the case here – you have to be willing to balance them and see which one should take precedence. Privacy and free speech, for example, are both important, but what do you do when a journalist exposes the private life of a public figure? You balance the right and wrong: which value is better served by publishing? Free speech or privacy? In some cases, we may believe that free speech is more important than the right to privacy (for example when the politician’s private life has relevance for his functioning). In other cases privacy will trump speech (for example when the facts published have no political meaning). Such decisions can only be taken case by case because the specifics always differ. Doctrinaire and absolutists positions in favor of one value or the other won’t do. And unfortunately many libertarians, and certainly Rand in this case, seem to think that their preferred values – property, freedom and the market – should always have priority over all other values.
Is legislation such as the Civil Rights Act an infringement of property rights and the freedom to do with your property as you want? Of course it is. Are such infringements always wrong? Of course they aren’t. Sometimes they are a necessary evil to gain a greater good.
There a resemblance between the libertarian views on private discrimination and the more widely accepted view in the U.S. that free speech rights and the First Amendment can only be invoked against the government, as if private actors can’t violate people’s right to free speech. The dominant U.S. free speech doctrine reflects an antiquated view of human rights as exclusively vertical. Of course, the government probably does most of the violations, particularly of a right such as free speech, but probably not in the case of the right not to be discriminated against. That’s more of a private monopoly, and markets, protest marches, boycotts, activism etc. won’t solve that problem by themselves. Just look at the market: it didn’t solve segregation, and neither would it have had it been more free. In fact, it’s likely that bigoted white customers who detest eating in the presence of blacks, will not find themselves in white only and hence more expensive restaurants, but will band together and boycott non-segregated restaurants which then lose far more business among whites than they gain from allowing blacks. Such boycotts are absolutely in line with property rights and the free market, which shows that the market can make discrimination worse instead of destroying it. (For a more sympathetic view of the power of the market, go here).
Strangely, Rand Paul himself invoked the parallel between private discrimination and free speech, but twists it to serve his goals:
INTERVIEWER: But under your philosophy, it would be okay for Dr. King not to be served at the counter at Woolworths?
PAUL: I would not go to that Woolworths, and I would stand up in my community and say that it is abhorrent, um, but, the hard part—and this is the hard part about believing in freedom—is, if you believe in the First Amendment, for example—you have too, for example, most good defenders of the First Amendment will believe in abhorrent groups standing up and saying awful things… It’s the same way with other behaviors. In a free society, we will tolerate boorish people, who have abhorrent behavior. (source)
So we have to tolerate discrimination that actually harms real people, just like we tolerate awful speech that most likely doesn’t hurt a fly? Words don’t equal behavior, although sometimes there may be a thin line between them (which is why hate speech laws can sometimes be justified).