Kentucky candidate for U.S. Senate Rand Paul has made waves lately by saying that he would not have supported the part of the 1964 Civil Rights Act that violates private persons' freedom of association. He stated that the parts of the Act that forbade discrimination on racial grounds by government were parts he agreed with but that private businesses should be allowed to discriminate on any grounds they chose. He has since waffled, and even some libertarians have stated that they would have supported coercive government measures to forbid racial discrimination in hiring. George Mason University law professor David Bernstein, was quoted as saying:
Therefore, to break the Jim Crow cartel, there were only two options: (1) a federal law invalidating Jim Crow laws, along with a massive federal takeover of local government by the federal government to prevent violence and extralegal harassment of those who chose to integrate; or (2) a federal law banning discrimination by private parties, so that violence and harassment would generally be pointless. If, like me, you believe that it was morally essential to break the Jim Crow cartel, option 2 was the lesser of two evils. I therefore would have voted for the 1964 Civil Rights Act.
I would be interested in David's evidence that there was such a cartel. The fact of the matter is that this country moved from segregation required by law to segregation forbidden by law without trying freedom of association for a millisecond. So I don't presume to know how much or how quickly segregation would have broken down without the law. There are strong incentives for employers, unhindered by law, to hire the best person for the job, regardless of race, and it would have been nice to see how well and quickly freedom of association would have worked.
Interestingly, Jennifer Roback has given evidence that among the strongest opponents of laws requiring segregated seating on street cars in the South were . . . street car companies.
It's interesting to revisit what Milton Friedman wrote about these issues in his 1962 book, Capitalism and Freedom. Here's an excerpt:
Is there any difference in principle between the taste that leads a householder to prefer an attractive servant to an ugly one and the taste that leads another to prefer a Negro to a white or a white to a Negro, except that we sympathize and agree with the one taste and may not agree with the other? I do not mean to say that all tastes are equally good. On the contrary, I believe strongly that the color of a man's skin or the religion of his parents is, by itself, no reason to treat him differently; that a man should be judged by what he is and what he does and not by these external characteristics. I deplore what seem to me the prejudice and narrowness of outlook of those whose tastes differ from mine in this respect and I think less of them for it. But in a society based on free discussion, the appropriate recourse is for me to seek to persuade them that their tastes are bad and that they should change their views and their behavior, not to use coercive power to enforce my tastes and my attitudes on others.