Bryan Caplan  

How Libertarian Was the Civil Rights Movement?

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Rand Paul is in the news for expressing (and then apparently recanting) what I've long seen as the standard libertarian view of civil rights legislation:

1. Government discrimination should be illegal.
2. Private discrimination should be legal.
3. Private discrimination is immoral.

In striking contrast, in his speech at the Cato Intern Alumni Reunion, Cato veep David Boaz seemed to say that the civil rights movement was one of the libertarian highlights of the Sixties.  This doesn't mean, of course, that Boaz thought that everything about the civil rights movement was libertarian.  But unless my memory fails me, he didn't qualify his praise.

It would be convenient for libertarians if the civil rights movement were indeed broadly libertarian.  But frankly, the glove doesn't fit.  Like all decent people, libertarians can identify with the civil rights movement's pleas for meritocracy and against blind hatred.  Libertarians can also embrace the Montgomery Bus Boycott and other resistance to state-sponsored discrimination - and point out that libertarians opposed pro-discrimination laws from the start.

But that's about as far as the commonality goes.  Unlike libertarianism, the civil rights movement rarely distinguished between state and private discrimination - and even more rarely distinguished between discrimination and unequal outcomes.  By 1963, when Martin Luther King gave his "I Have a Dream Speech," his program already contained plenty for libertarians to oppose.  He called for "an end to racial segregation in public school [libertarian]; meaningful civil rights legislation, including a law prohibiting racial discrimination in employment [libertarian for government employment, not libertarian otherwise]; protection of civil rights workers from police brutality [libertarian]; a $2 minimum wage for all workers [not libertarian]; and self-government for Washington, D.C. [unclear]..."  By his 1968 Poor People's Campaign, King was calling for the openly redistributive "second phase" of civil rights.  Of course, MLK wasn't the only civil rights leader, but as far as I can tell, the most common internal complaint was that he was too moderate.

Overall, I see the civil rights movement much as I see the Protestant Reformation.  Both attacked blatant injustices, many of them government-imposed.  But the thrust of the Protestant Reformation wasn't separation of church and state.  It was state-mandated Protestantism.  Similarly, the thrust of the civil rights movement wasn't separation of race and state.  It was state-mandated group equality of result.  Whether they're quoting Martin Luther or Martin Luther King, libertarians shouldn't forget these facts.


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COMMENTS (23 to date)
ziel writes:

Why Paul doesn't concentrate on the much despised "equal outcomes" aspect of civil rights laws rather than the more favorably viewed "public accommodations" aspects is beyond me. But I can see that for a committed libertarian one's as bad as the other.

Jacob Martin writes:

[Comment removed for supplying false email address. Email the webmaster@econlib.org to request restoring this comment. A valid email address is required to post comments on EconLog.--Econlib Ed.]

Kurbla writes:

Hm ... I'm not libertarian, but it seems to me that from anarchocapitalist (and actually more generally, libertarian - proprietarian) point of view, state discrimination should follow the pattern of private discrimination.

Let us imagine anarchocapitalist territory in which, naturally, some citizens are racists. At one moment, two foreign statist armies invade that territory and divide it on two sectors: X and Y.

Commander of Sector X decides to confiscate some property previously owned by individuals - and to confiscate all their property rights. He decides to use that property without any racial discrimination.

Commander of Sector Y decides to confiscate some property previously owned by individuals, but he decides to leave one right to previous owners: to chose the race of the future users of their property.

It seems to me that Sector Y is more libertarian, and more racist as well.

mulp writes:

Killing is immoral.
The state engages in killing. Not libertarian.
The state prohibits private killing. Not libertarian.

I guess when it comes to civil rights, the state is more libertarian than it is on killing.

Unless you believe it should be ok for a man to immorally deny a woman a job or equal pay for equal work, an immoral act of discrimination, but not ok for a man to kill a woman, an immoral act of killing. Why is denying a woman the means to live ok, but not taking her life.

The complexity of private discrimination isn't really that much more complex than the dividing line between various degrees of private killing. And in both cases, juries decide whether the conditions of each case cross the lines set by society as defined by law, but still judged within framework of community experience.

Let's remember the Civil Rights Act applies to the majority of people historically discriminated against, not the minority who weren't.

Henry writes:

Surely the greatest accomplishment of the civil rights movement was not the CRA. Rather, it was the cultural changes they set in motion so that today anyone who expresses any hint of racist beliefs is shunned in polite society. But, Bryan, you seem to be focusing only on the legislative agenda of the movement and missing that bigger picture.

As a libertarian, I cling to the idea that most social change has little to do with any government policy. If that's not true, this is a pretty depressing world for libertarians!

Daniel Klein writes:

Valuable post, thanks.

Really too bad MLK wasn't more consistent with liberal principles.

I gather that most of the abolitionists were.

MikeP writes:

Given all the voices that have come out in such energetic support of the prohibition of both public and private discrimination based on a condition of birth, why does the US not only allow public and private discrimination based on place of birth, but actually mandate it?

AC writes:


Mulp, it's not that puzzling why there's a difference between killing and denying a job.

crossofcrimson writes:
"Why is denying a woman the means to live ok, but not taking her life."

Why is not giving a stranger $100 dollars ok, but not taking $100 from a stranger?

David writes:

So Bryan would stand with Lester Maddox as he refused to allow black people into his restaurant. Because Bryan thinks Lester had the moral right, and should have had the legal right, in the early 1960s, to discriminate.

http://en.wikipedia.org/wiki/Lester_Maddox

MikeP writes:

From what Bryan said, he would allow Maddox his discrimination, but call him immoral.

But then even Maddox appears to have understood the difference between private and public discrimination well enough. From your cite...

# He appointed more African Americans to state government positions than any other governor before him.
# Appointed the first African American to head a state department (the Board of Corrections).
# Named the first black GBI agent.
# Named the first black state trooper.
# Ordered state troopers to desist from using the word "nigger", and to address African-Americans using "Mr." instead of by their first name.
# He integrated the lines of farmer's markets throughout the state.

David writes:

MikeP,

Unlike George Wallace, Maddox never apologized for, or conceded, that his segregationist views were wrong.

How one squares that with the things you cite is anyone's guess.

Gavin Andresen writes:

"The government shouldn't try to legislate morality" is a fine principle, but sticking rigidly to that principle is one good way of getting labeled "that lunatic libertarian."

I disagree with you, Bryan-- I think libertarians would be better off forgetting that the Civil Rights Movement was advocating more than just the elimination of un-libertarian Jim Crow laws and concentrate on more important, less emotional issues. Like immigration reform.

After all, what harm have the no-discrimination-in-private-businesses-that-provide-public-accommodation laws caused?

RD writes:

This is where libertarianism fails. Any political ideaology has to make provisions for balancing individual (or organizational) liberties with the commitment to the polis/community in which one lives. Libertarianisms has no mechanism for distingishing that balance and as in the cival rights case, errs on the wrong side.

As the supreme court board of education case so elegantly identified, you can not be equal under law with segragated schools. It is important to limit the school's freadom to discriminate in order to provide freadoms to the discriminated. The interaction and perception within the community play a role in defining your freadoms. They are not neatly seperated as most libertarians would like them to be.

Another easy example: taxes impinge on personal liberty- there is no doubt about it. However you pay taxes to support the community and the public benefits that are not achievable in private practice(like having a military). True libertarianism would require everyone to provide for their own personal defense against a terrorist attack. Clearly not a good outcome.

If you enter into a community, state, or province, you enter in to contract with the community that will limit your private liberty. Where the line is drawn is where serious politcal ideology comes to play. Libertarianism does not have those tools and is always modified to some external standard

crossofcrimson writes:
"If you enter into a community, state, or province, you enter in to contract with the community that will limit your private liberty. Where the line is drawn is where serious politcal ideology comes to play. Libertarianism does not have those tools and is always modified to some external standard"

Anarchist FAQ might be worth glancing over...

Nicholas Weininger writes:

What Henry said. The cultural change matters more than the legal change and the cultural change is long-term.

Also, even in the legal realm, I think you have to ask: what is the *net* effect of the civil rights movement? And on net Boaz is right. The libertarian change it brought to a bunch of deeply legally oppressed people was huge. The cost to others' liberty of the non-libertarian aspects of the movement, while it is very real and ought to be acknowledged more, nonetheless pales before the victory of ending Jim Crow.

I think Boaz is reacting to the perception-- fair or unfair-- that a lot of libertarian analysis of the civil rights movement focuses so much on the cost that it doesn't give the benefit its proper due. That perception makes us look at the very least racially insensitive and pretty skewed in our sense of what kinds of liberty matter most; so it's worth fighting.

crossofcrimson writes:

I find it interesting that several people, who seem to be sympathetic to libertarian views, feel that it is perfectly acceptable to simply ignore the "non-libertarian" part of the CRA legislation (at least for now). I can understand how we could view the CRA as a net-gain for liberty (although some may hold this in contention) but it is still unclear to me exactly why - other than for political expediency - we should simply leave it be.

Take for example a society who has believed it should be legal to physically harm innocent people at random. Eventually that society creates a piece of legislation which forbids this action - with the exception of males of age 39 that answer to the name of "Bob." Now, clearly this may be a move in the right direction (for liberty's sake). However, does this mean that we should simply bury our collective heads in the sand when it comes to the non-sensical portion of said legislation?

I understand that maybe after living fifty years with such a law (and particularly if the law was the result of a cultural movement) we, as a society, may have an incredibly strong disposition to deride anyone who would dare question the legal thrashing of the "Bob"s. In fact, it may be viewed as not only insensitive but suspiciously questionable to even bring it up for debate. And maybe that does, indeed, make it politically impractical to even try to bring it back into the forum of political debate.

But then my question would be, if not after fifty years, then when? How long do you let the idea of hurting middle-aged Bob(s) linger until you move to bring the issue to light? And as a corollary question, is it possible that letting it go unquestioned for a larger period of time could have the effect of strengthening the cultural dispositions of the people we'd be trying to persuade?

I'm not saying these things to be overly-critical of people who want to shy away from the issue regarding the CRA. I'd just like to better understand where they're coming from in this instance.

Brian Sims writes:

I have two questions.

(1) Why doesn't the libertarian philosophy recognize that a restaurateur who refuses to serve blacks because of the color of their skin is hurting people? Why isn't that a harm that the state has a legitimate interest in preventing or redressing?

(2) What is the role of the government when a person or corporation engages in an ultra-hazardous activity for which it lacks the resources to compensate those harmed in case of an accident. I'm thinking of the BP Deepwater Horizons disaster. The total damage caused by this accident--in quantifiable economic terms alone--will almost certainly exceed the total market cap of BP. It is likely that the spill will destroy the Mississipi Delta Gulf fishery for two decades if not longer. Even if BP and the rest of the oil industry had not bribed (through campaign contributions, at least) Congress into enacting the preposterous $75m damage cap (I'm presuming good libertarians deplore the damage cap), that is, even if BP were going to be held fully accountable for the costs of cleanup and economic damage they caused, BP could not cover it. What is government's proper role in that situation? Is it proper to either ban or regulate the activity?

crossofcrimson writes:
"I have two questions.

(1) Why doesn't the libertarian philosophy recognize that a restaurateur who refuses to serve blacks because of the color of their skin is hurting people? Why isn't that a harm that the state has a legitimate interest in preventing or redressing?"

I won't currently address the second question as the response would be lengthy and probably better explained by someone else. But I'll attempt to entertain the first:

I certainly don't speak for all libertarians, but I believe the answer to your first question would entail a discussion of the premise (one that libertarians would claim is a false one) of positive rights. The libertarian philosophy - or at least the version commonly discussed - views aggression and subsequent justice through the prism of negative rights. Coupled with a Lockean sense of property rights, this generally results in a focus on the Non-aggression principle.

Coming from that perspective, the idea of a person choosing NOT to labor for another person (regardless of the reason - which can pose a sticky problem when trying to deduce it as such) is well within the "rights" of that individual. And the claim that you are "hurting" someone by choosing to not labor for them in some capacity would seem silly and unquestionably arbitrary to anyone who adhered to the NAP. In fact, to the libertarian, the party trying to force that particular actor to provide that service or good against their will would be the aggressor.

There are many arguments in libertarian literature that expound upon these concepts far better than I can, but I always found the idea of positive rights to be peculiar. And placing it in the context of racial discrimination seems even more bizarre. If I don't want someone in my restaurant because they're wearing offensive clothing, can I refuse them service? What if they're openly carrying a gun? How about if their name is Jim and I simply happen to not like that? Or what if I only want people over five feet tall that are dressed in ties, including the women? Would I even have to make the preferences in my shop public or could I simply ask any given person to leave my property without explanation? If so, how would you determine the discriminating factor, if I had one at all?

What seems even more arbitrary to me is the general concept that I owe someone my service and that refusing my services would somehow result in a tort. By that line of reasoning, simply deciding to close my shop at all, for any reason, would seem to be an abridgement of someone's freedoms. What if I simply decided to stay home that day and not serve food to anyone? Even if I was the only food establisment in town, would that be a crime?

The thin red line for libertarians is indeed property. Let's say that for the past six months I have helped out a stranger and his family by giving him $300 a month to help him afford an apartment. After six months, I decide to stop helping him. He's now (in all probability) going to lose his apartment. Have I aggressed against him or his family? I think how you answer this question would be a fairly good indicator regarding your view of libertarian principles. If you're inclined to believe in positive rights, you could very well lean towards claiming this is an act of aggression. Libertarians will find the act as anything within the spectrum of "peachy" all the way up through "contemptable" - but they will not believe it to be aggression.

To a libertarian, not being given something you never owned is a far cry from the injustice of having something stolen from you.

Simon K writes:

The relevant question isn't so much whether private discrimination should be legal, as to what lengths are you prepared to go to defend it? If we're just talking about allowing business owners to refuse to serve some customers, that's fine - I can see the libertarian argument that that's okay. But would you really be prepared to see lines of state troopers keeping black people out of "whites only" establishments? Would you be prepared to let them arrest people for trespass? to fire?

Because that's what actually happened. But for the sake of clarity lets ignore the actual reality of the Jim Crow South where private discrimination was in fact state sponsored and in some cases even state coerced, and look at a less emotive theoretical case.

Lets suppose a restaurant owner decides to bar people with red hair from his establishment. Lets suppose a red-headed man comes in to have dinner with his friends, and the restaurant refuses to seat them and asks them to leave and they refuse. To precisely what extent is the restaurant owner able to call on the state to support his right to privately discriminate? The "standard libertarian view" appears to be that he can indeed call on the state to forcibly evict them for trespass, using whatever level of force is necessary. If that really is the standard libertarian view, I think its ethically quite obviously deficient, rather than merely being neutral as Bryan pretends above.

Personally I'd say you're welcome to privately discriminate, but you have no call on public support for doing so, and you're not permitted to break the law yourself in the process. I'm differing from the standard libertarian view here in saying there's no obligation on the state to help property-owners enforce rules regarding their property where there is no clear direct harm to them from non-enforcement.

Will writes:

I'm really struggling with these analogies. If I own a restuarant and only allow service to my friends and relatives, I don't need a lighted sign visible to the highway that I am serving food. But if I advertise that I am selling food to passersby, then it makes sense that the government can prohibit my arbitrary discrimination of people based on gender, class, or race. A restuarant is not a private eating club (which is how many of the libertarians in this discussion seem to be regarding it). How about this: Instead of refusing entry to certain classes of people, the restuarant owner chooses to serve them rancid and rotting food. Is that ok? Do libertarians consider the legislation of any community standards legitimate?

crossofcrimson writes:

Will said:

"I'm really struggling with these analogies. If I own a restuarant and only allow service to my friends and relatives, I don't need a lighted sign visible to the highway that I am serving food. But if I advertise that I am selling food to passersby, then it makes sense that the government can prohibit my arbitrary discrimination of people based on gender, class, or race. A restuarant is not a private eating club..."

I think most of the the contention for libertarians is two-fold here:

PRIVATE PROPERTY

The first issue is that of what is private property. It seems that most of the people who are in support of government intervention here do believe that these places of business are private property - yet there is some sense in which owners of these properties have less rights than others....

[Remainder of response elided. It may be found at http://crossofcrimson.blogspot.com/2010/05/over-at-econlog-bryan-caplan-started.html.
--Econlib Ed,]

Tim Fowler writes:

Will - RE: "But if I advertise that I am selling food to passersby, then it makes sense that the government can prohibit my arbitrary discrimination of people based on gender, class, or race."

Why?

That's the current legal situation of course, but we aren't really talking about what the current legal situation is (except for corner cases its clear enough). The main topic of conversation is what is the proper role for the law here. Why does the government have a proper role controlling the private property of racists, so that the racists don't use it in a discriminatory fashion? If a racist business owner advertises his business, its still his private property.

You'd have a better case for banning the serving of rancid food. A public health case, and possibly a fraud case (I doubt the restaurant advertised that the food was unhealthy, and the normal assumption is that at least the food does not make you immediately ill, barring any special food allergies on your part), and also a tort case for damages.

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