24 June 2010

a return to CRA

Back about a month ago, there was this terrible "libertarian" flap over the Civil Rights Act's private discrimination clause. Since I circled back around to private contracts as being a basis for legal enforcement on some issues, it occurred to me that this was a weird outlier that I needed to explain some more.

Basically it comes down to this: private discrimination happens (based on race, gender, sexual orientation, religion, liking France or rap music, whatever), we may find it deplorable, certainly true now in many cases, but there may be little that we can do legally to redress the issue by force. What was actually at issue during the Civil Rights era was that private discrimination was mandated by law (in certain unnamed parts of the country), whether individuals wanted to use it or not in their private affairs and especially in their businesses. This was a ridiculous and non-market based position. Somehow or another, it got painted that being against getting rid of all private discrimination meant supporting it in the first place. In the 1960s, this was, to some extent, probably true. The architecture that allowed for private "market" discrimination was state supported both through legal and extralegal force (ie, local law enforcement and courts would ignore property or personal damage and threats of damage to people who did not comply or who suggested they would not). That architecture had to be destroyed. There were several options available.

1) You could legalise private discrimination of any kind, but not mandate it by the state. Ie, blacks could open a business and discriminate against whites or people could open a business and not discriminate against anybody. Under some ordinary market condition, businesses that complied with local wishes and provided quality products or services the best would thrive, and those that did not would suffer economic penalties, over time leading to a status quo with less overall discrimination. The problem with this is the extralegal support given to discrimination by state authorities. That means you could do:
2) Federalize local authorities to prevent and crackdown upon local extralegal banditry. Ike did this in the 50s with school integration by sending in the 101st Airborne. LBJ occasionally federalized control over some state National Guard units during race riots and marches in the 60s. And obviously Reconstruction was almost entirely based on this method (particularly true when you observe Grant's capacity to crush the early KKK terrorism rings with detachments of federal troops armed with military powers of law and order). You can plainly see from how our history books are written almost 125 years later how that worked out. It's looked upon rather...poorly by the targets of this "meddling". I tend to believe this would have been the most effective immediate term solution but the most expensive long term, amounting to an occupation of states while generations of resentment build instead of any internal reforms toward "best market practices".
3) What we did instead. Pass a law outlawing private discrimination and enforce it with the threat of federal authority through a signed piece of paper rather than the actual presentation of it through military occupation.

The primary interest I had here is in allowing for people NOT to discriminate when they do not wish to, in other words to allow people to make "contracts" (essentially the default arrangement of consumer and business, regardless of whether anything is signed to that effect) at their own pleasure in the first place. We probably took the least "effective" means of doing so, since we do not in fact permit people to do so under certain conditions (even though such arrangements might not be marketable any longer), but it was probably the least painful and socially upheaving method at that to improve some basic liberties. Perhaps, it would have been better had we considered the privileges and immunities clauses of the 14th Amendment under greater legal standing and thus had a very wide latitude of freedom of contract laws, but that was not the situation we were dealing with. We were instead down to a very bad set of options of how best to enforce that clause and its promise by imposing fewer choices on the least number of people (ie, those who actively wanted to discriminate against others in business arrangements).
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