A discussion of the Civil Rights Act

Selections: The Right To Discriminate, Walter E. Williams
and
Fight Bigotry Without Government, John Stossel

Should people have the right to discriminate by race, sex, religion and other attributes? In a free society, I say yes. Let's look at it. When I was selecting a marriage partner, I systematically discriminated against white women, Asian women and women of other ethnicities that I found less preferable. The Nation of Islam discriminates against white members. The Aryan Brotherhood discriminates against having black members. The Ku Klux Klan discriminates against having Catholic and Jewish members. The NFL discriminates against hiring female quarterbacks. The NAACP National Board of Directors, at least according to the photo on their Web page, has no white members.

You say, Williams, that's different. It's not like public transportation, restaurants and hotel service in which Title II of the 1964 Civil Rights Act "prohibits discrimination because of race, color, religion, or national origin in certain places of public accommodation, such as hotels, restaurants, and places of entertainment." While there are many places that serve the public, it doesn't change the fact that they are privately owned, and who is admitted, under what conditions, should be up to the owner.

If places of public accommodation were free to racially discriminate, how much racial discrimination would there be? In answering that question, we should acknowledge that just because a person is free to do something, it doesn't follow that he will find it in his interest to do so. An interesting example is found in an article by Dr. Jennifer Roback titled "The Political Economy of Segregation: The Case of Segregated Streetcars," in Journal of Economic History (1986). During the late 1800s, private streetcar companies in Augusta, Houston, Jacksonville, Mobile, Montgomery and Memphis were not segregated, but by the early 1900s, they were. Why? City ordinances forced them to segregate black and white passengers. Numerous Jim Crow laws ruled the day throughout the South mandating segregation in public accommodations.

When one sees a law on the books, he should suspect that the law is there because not everyone would voluntarily comply with the law's specifications. Extra-legal measures, that included violence, backed up Jim Crow laws. When white solidarity is confronted by the specter of higher profits by serving blacks, it's likely that profits will win. Thus, Title II of the 1964 Civil Rights represented government countering government-backed Jim Crow laws.

One does not have to be a racist to recognize that the federal government has no constitutional authority to prohibit racial or any other kind of discrimination by private parties. Moreover, the true test of one's commitment to freedom of association doesn't come when he permits people to associate in ways he deems appropriate. It comes when he permits people to voluntarily associate in ways he deems offensive.

John Stossel," said "Private businesses ought to get to discriminate. I won't ever go to a place that's racist, and I will tell everybody else not to, and I'll speak against them. But it should be their right to be racist."

Maybe. At the time, racism was so pervasive that such an intrusive law may have been a good thing. But, as a libertarian, I say: Individuals should be surrounded by a sphere of privacy where government does not intrude. Part of the Civil Rights Act violates freedom of association. That's why I told Fox's Megyn Kelly, "It's time now to repeal that part of the law."

America's fundamental political philosophy has deteriorated quite a bit if we can't distinguish between government and private conduct. I enthusiastically support the parts of the civil rights act that struck down Jim Crow laws, which required segregation in government facilities, mass transit, and sometimes in private restaurants and hotels. Jim Crow was evil. It had no place in America.

Racist policies in private restaurants are also evil, but they do not involve force. Government is force, so it should not be used to combat nonviolent racism on private property, even property open to the public.

I just don't trust government to decide what discrimination is acceptable. Its clumsy fist cannot deter private nonviolent racism without stomping on the rights of individuals. Today, because of government antidiscrimination policy, all-women gyms are sued and forced to admit men, a gay softball team is told it may not reject bisexuals and a Christian wedding photographer is fined thousands of dollars for refusing to take photos of a homosexual wedding.

I'll say it again: Racial discrimination is bad. But we have ways besides government to end it. The free market often punishes racists. Today, a business that doesn't hire blacks loses customers and good employees. It will atrophy, while its more inclusive competitors thrive.

In the pre-1964 South, things were different. But even then, private forces worked against bigotry. White owners of railroads and streetcars objected to mandated segregation. Historian Jennifer Roback writes that in 1902 the Mobile Light and Railroad Company "flat out refused to enforce" Mobile, Alabama's segregation law.

In cities throughout the South, beginning in 1960, student-led sit-ins and boycotts peacefully shamed businesses into desegregating whites-only lunch counters. Those voluntary actions were the first steps in changing a rancid culture. If anything, Washington jumped on a bandwagon that was already rolling.

It wasn't free markets in the South that perpetuated racism. It was government colluding with private individuals (some in the KKK) to intimidate those who would have integrated.

It was private action that started challenging the racists, and it was succeeding -- four years before the Civil Rights Act passed.

Government is a blunt instrument of violence that one day might do something you like but the next day will do something you abhor. Better to leave things to us -- people -- acting together privately.