21 May 2010

More on CRA

Legal edition

It does seem pretty clear that the most significant problems with the Jim Crow era were not necessarily the fact that employers and business owners discriminated. It was the fact that they were legally required to do so. Social and cultural norms were powerful problems, but the fact that they were enforced by laws, or that laws were ignored in order to enforce these norms privately, poses a huge problem for the idea that this was a libertarian paradise. Only in a world where "libertarian" equates to "state's rights, southern edition" does the world of Jim Crow mean much for the ideas involved.

I suspect of course that there are many not only who are outside our little clique but within it that think that's precisely what libertarianism is for. It's not. It's a political philosophy that emphasizes decentralised governance as much as is possible but underlying that is an assumption that centralised authorities will attack and destroy individual rights and holds that a reason to use decentralisation as a weapon to wield against tyrannies seeking to repress rights. Rights like: the vote, to freely associate, to seek education, an impartial redress of grievances, freedom of speech, religion/worship/conscience, and so on. If decentralised authorities, authorities that subscribe to the central power of a federal authority in some way, decide they can also attack and destroy those individual rights, someone should step in and tell them they cannot (ie, the Constitution with its supremacy clause and enumerated powers and amendments). For decades, the government did not do this and allowed those rights to be trampled upon after they were explicitly protected and guaranteed. I suppose you could argue, particularly from this libertarian, states' rights perspective, that it then moved too far to trample them in another way. I suspect in a way this is probably true. I'm not so sure that it is a great loss to our society to try to tackle racism and defeat its effects within private arrangements, at least over purely economic affairs, but we also have no official rights not to be discriminated against in our private affairs. What is needed to object to these is a right of entry and exit to create and foster alternative engagements in a large and diverse society and thus penalize such overt bigotry. I'm not totally certain this was achieved, or that the CRA's passage was the best guarantor of it, but I'm reasonably certain that without some legal interventions on this front that private discrimination would not have been avoided. Cultural and social norms on this front were very strong and incited much outrage and even bloodshed when they were upset.

I'm however certain that it was no great loss to abandon the right of governments, any governments, to make these discriminatory claims and impose them with force and coercion of law and to hold those governments accountable, where possible, for the actions and bigotry of its officers, bureaucracies, and associated regulated enterprises (public transit or the post office for example). I find it strange that environments where governments have acted, and indeed have acted improperly, that we, as the philosophers who proclaim that governments should not act at all in such areas or should act very differently from how they have done so (ie, to protect rights rather than abolish them), that we are blamed. So far over the last two years we've been blamed for the Great Depression, the Great Recession, Separate but Equal, and the Great Oil Spill of 2010 in some way or another. I've yet to see what we did to cause any of these things or to exacerbate them. Usually we were shouting from the hills and being driven back before enacting anything like what we were calling for as a law.

For this case, it might of course be instructive to wonder how we can or should do that however in the legal realm, because it is clear that we have not with the stroke of a pen abolished the peculiar mindsets required to make it a functional reality that a man shall be assessed largely on the pigments in his skin and not the contents of his wallet or the skills in his hands or mind or the quality of our interactions with him. Perhaps, unlike the civil liberties that are enshrined in a series of laws and pamphlets and yet go ignored and abandoned with no one to speak up for them and occasionally get a reprieve on account of a legal technicality, we have to make this case individually and morally rather than legally. Or, perhaps, with enough time the law will become a moral and compelling force of its own in the opposite direction than its less noble historical aims.
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