Blogs > Liberty and Power > MUDDLED THINKING ON CIVIL RIGHTS

Feb 1, 2004

MUDDLED THINKING ON CIVIL RIGHTS




I have always understood that freedom of association means that an individual may both associate, including trade, with other consenting individuals and its corollary, may also decline to associate, including trade, with other individuals. Thus a person may discriminate against anyone else for any reason whatsoever--race, national origin, religion, sex, sexual orientation, disability, whatever. Today, of course, discrimination for these sorts of reason is largely illegal and politically incorrect even when it is legal. Not surprisingly, self-identified libertarians and classical liberals tend to eschew this implication of the principle of free association in their public presentations of the case for liberty. I understand their concern not to be labeled bigots or to turn off people who might otherwise be attracted to libertarian arguments. However, at some point those who favor individual liberty must be prepared to stand up and be counted in favor of the right of individuals to discriminate in their own conduct on their property for whatever reason.

What is worse, however, is intentional or unintentional obfuscation of the issue. An egregious example is Professor David Bernstein's recent article (January 29) in the St. Paul Pioneer Press. Unlike Professor Richard Epstein of the University of Chicago Law School, author of Forbidden Grounds: The Case against Employment Discrimination Laws (Harvard University Press, 1992), Bernstein isn't prepared--at least not in this article--to defend the right of individuals to discriminate in their own time on their own property. That's his choice as a writer. But what he does write is very misleading.

As most readers are no doubt aware, the Civil Rights Act of 1964 made discrimination illegal--both by federal and state governments and by private persons and organizations. In his article Bernstein not only fails to distinguish between discrimination by government and discrimination by private individuals but also fails to explain that"public facilities such as restaurants, hotels and theaters" were mainly private property. Yet he writes,"While the civil-rights laws of the 1960s were generally sensitive to civil libertarian concerns, contemporary anti-discrimination laws often are not." The truth of the matter is that the Civil Rights Acts of 1964 and 1967, which outlawed discrimination on grounds of race, national origin, religion and sex by the owners of restaurants, hotels and theaters and in employment in any business exceeding twenty-five people, had already undermined freedom of association in the United States before further legislation and court decisions extended the scope of the law in the way he describes. How can an avowedly libertarian law professor, and at George Mason University of all places, not understand that point? And if he's prepared to defend the 1964 Act, including its regulation of private behavior, without qualification, how can he make a principled objection to extending the scope of the law?



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