Friday, May 21, 2010

Rand Paul was wrong even on libertarian terms

It was a political and substantive error for Rand Paul to criticize those portions of the Civil Rights Act (largely Titles II and VII) that applied to private business. It is wrong as a matter of constitutional principle. A unanimous Supreme Court upheld Congress' ability to prohibit discrimination in public accommodations in Heart of Atlanta Hotel v. United States. Even if you believe that its scope goes beyond what should be subject to the commerce power (perhaps even even as applied to Ollie's Barbecue, a segregated restaurant that was among the plaintiffs in Katzenbach v. McClung, argued along with Heart of Atlanta and decided the same way), it does not seem unreasonable to think that Congressional authority under section five of the Fourteenth Amendment either supports federal intervention (perhaps to counter the impact of Jim Crow laws) or suggests a rationale for a broader reading of Congressional authority in matters of racial discrimination. In any event, the matter is water under the bridge.

Nor it seems to me do typical libertarian arguments against the need for legal proscription of discrimination work in the context of the 1964 Act. The argument, drawing on the work of economists like Gary Becker, usually says that the market is the best antidote to discriminatory practices. Irrational discrimination - not hiring the best workers or accepting profitable business on the basis of race - comes at a cost. The discriminating party acts as if the cost of hiring, say, an African-American is higher than it is or that the price paid by an African American customer is lower than it is. Thus, discrimination is economically detrimental and, in a market without entry barriers, nondiscriminating competitors will have an advantage.

But putting aside normal market perfections, the theory won't work if there is a pervasive economic demand for discrimination, e.g., if white employees won't work with blacks or if white customers won't sit at a lunch counter with black customers. Then the cost of hiring or serving African Americans really is higher and the market won't help us.

Of course, those are conditions under which laws prohibiting discrimination are unlikely to be passed. We weren't likely to see anti-discrimination legislation get through the Alabama legislature in 1960. But, in 1964, the areas in which there was a pervasive demand for discrimination were part of a larger community in which discrimination was, although certainly not eliminated, more broadly disfavored such that a coalition to pass a law prohibiting it could be formed. Under those conditions, it seems, a law prohibiting discrimination would change market conditions in the south and reinforce the principle of nondiscrimination throughout the nation. (The law has expressive as well as regulatory impact.)

So, even if Rand Paul is correct to say, that, were Titles II and VII to disappear overnight, we wouldn't see much more discrimination in today's world, that wasn't the case in 1964.

Having said that, I do think there is some value in the observation that the more effective barriers to a discriminatory practice are public attitudes and the market (which, of course, reflects public attitudes). While I am certainly not an expert, I have been a lawyer for quite a while and it has also struck me that age discrimination laws seem much less effective than laws prohibiting other forms of discrimination. Many - perhaps even most of us - don't really believe that age discrimination is wrong in the same way that racial discrimination is. In the eyes of many, age seems to be a more relevant factor than race and assumptions based on age are more likely to be true. The same moral stigma does not apply. I'm not sure that the mere fact of legal prohibition has done much to change those underlying attitudes.

Cross posted at Marquette University Law School Faculty Blog and Point of Law


Anonymous said...

The professor's comments are quasi castigation of the worst type. Even if Rand is wrong (and he is), these comments elide the ugly reality of the tea party - that its adherents believe that government action, any government action, is an unwarranted, inappropriate and inefficient intrusion on the hallowed private sector. Rand (and his tea party buddies who've read Atlas Shrugged a few too many times) honestly believe that if there's a market for discrimination (racial or otherwise) that said market must be allowed to thrive without government intervention.

These people worship at the altar of the "free market" and think Rand's views are perfectly appropriate. They deserve far stronger castigation than the professor has offered here.

Ibrahimblogs said...

I liked the post. It is clear and honest!!

Keep it up!!

This is Ibrahim from Israeli Uncensored News

Anonymous said...

The Tea Party as does the Republican party and the Democratic party have a segment of people that border on anarchism.

The Republican and Democrats are parties that force the majority to conform to the minority but the Tea party principal is to force the minority to conform to the majority view. The problem is that they do not articulate it very well.

As a new party with a principal I can support, I will give them time to articulate there positions and plan. Although, it is unpleasant to have to consider Republican and Democratic candidates until they do.

Anonymous said...

As you acknowledge by stating that law has expressive as well as regulatory purposes, an important purpose of law is to teach. The passage of the Civil Rights Act was intended to teach Americans that racial discrimination, racial segregation, is wrong. Right up through the passage of this law, many Americans thought racial segregation was morally acceptable. We, as a society, rejected that view. Two generations later, public attitudes have changed dramatically. To what extent public attitudes have changed because of the law, who knows, but surely there was some impact.

Yes, the most effective barriers to discriminatory practices are the pervasive public attitude that discrimination is wrong, and the resulting market in which discrimination is costly to the one who discriminates. But the law has much to do with shaping public attitudes and, thereby, market incentives.

Anonymous said...


not so much. this is pasted directly from the US libertarian party's website. It confirms the opposition to ANY regulation of trade, and explicitly states that the freedom to trade includes the freedom not to trade. I think Rand was saying precisely what he thinks. he just got caught at it.

2.1 Property and Contract

Property rights are entitled to the same protection as all other human rights. The owners of property have the full right to control, use, dispose of, or in any manner enjoy, their property without interference, until and unless the exercise of their control infringes the valid rights of others. We oppose all controls on wages, prices, rents, profits, production, and interest rates. We advocate the repeal of all laws banning or restricting the advertising of prices, products, or services. We oppose all violations of the right to private property, liberty of contract, and freedom of trade. The right to trade includes the right not to trade — for any reasons whatsoever. Where property, including land, has been taken from its rightful owners by the government or private action in violation of individual rights, we favor restitution to the rightful owners.

Anonymous said...

The Civil Rights Act was a brilliant act by the Democrats to take the black vote away from the Republicans.

Prior to that the Republicans were the party that freed them from slavery and the Democrats were the party that supported the Ku Klux Klan.

After that we have gone from growing welfare programs to national health care at the hands of the democrats.

Perhaps the Republicans didn't see this coming but they also have been ineffective in stopping the democrats redistribution of wealth because of it.

I would guess that Rand Paul would know this and is trying to send his message that these programs have to be stopped. I highly doubt he is against equal and fair treatment.