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Liberty, Law, and Civil Rights - Kang vs. Kodos
May 212010

Rand Paul (photo by Gage Skidmore via Wikimedia Commons)

Recently the Republican nominee for one of Kentucky’s senate seat, Rand Paul, dared to question the 1964 passing of the Civil Rights Act (or did he?). This instantly made him a Very Bad Person™ in the eyes of progressives (not that having Ron Paul for a father is winning many popularity contests). Paul seemed to be defending the austro-libertarian contention that government intervention against prejudicial discrimination in the private sector is antithetical to the natural rights to freely associate and freely use private property.

Frederic Bastiat (public domain image courtesy of Wikimedia Commons)

Frederic Bastiat wisely said in Economic Harmonies, “Government acts only by the intervention of force; hence, its action is legitimate only where the intervention of force is itself legitimate.” The question at hand is whether or not governmental force is justified in forbidding discrimination.

Progressive arguments in favor of the Civil Rights Act are irrelevant to me. For them, the State is often the first, rather than the last, resort option for combating injustices. As a minarchist and subsidiarian, I cannot easily accept a heavy-handed federal solution to a problem. Too often government creates more and worse problems than it purports to solve. There is, however, a conservative argument that gave me pause. In a WaPo blog post, David Weigel points to a quote from author Bruce Bartlett against free market-based solutions to racism.

“As we know from history, the free market did not lead to a breakdown of segregation. Indeed, it got much worse, not just because it was enforced by law but because it was mandated by self-reinforcing societal pressure. Any store owner in the South who chose to serve blacks would certainly have lost far more business among whites than he gained. There is no reason to believe that this system wouldn’t have perpetuated itself absent outside pressure for change.

“In short, the libertarian philosophy of Rand Paul and the Supreme Court of the 1880s and 1890s gave us almost 100 years of segregation, white supremacy, lynchings, chain gangs, the KKK, and discrimination of African Americans for no other reason except their skin color. The gains made by the former slaves in the years after the Civil War were completely reversed once the Supreme Court effectively prevented the federal government from protecting them. Thus we have a perfect test of the libertarian philosophy and an indisputable conclusion: it didn’t work. Freedom did not lead to a decline in racism; it only got worse.”

Weigel also points to a defense of Paul by author Tom Woods.

“[A]ny non-hysteric knows a segregated restaurant would be boycotted and picketed out of existence within ten seconds.”

I’ve never heard of Barlett before, and I’d ordinarily be inclined to agree with Woods, but I think I might actually agree with the former. Before you write me off as a poor excuse for a libertarian, hear me out.

I’ll start by saying that Woods is right – if we’re talking about the America of 2010. The American deep south of the 1960’s was a different world, though. How did the country change so radically in 50 years? Debates over the proper role and scope of government aside, it’d be hard to argue that the Civil Rights Act of 1964 didn’t have a major impact on American society. Could it be that we needed “outside pressure for change” to fight racism, just as a person with clinical depression may need medications to give him enough momentum to escape his mental rut?

Maybe that’s what Bartlett means by saying that the libertarian solution to racism didn’t work. In his view, the market/private enterprise failed. In a sense, I may agree with him, though I wouldn’t call it a failure, per se. Invisible hand notwithstanding, the market (by which I mean all private endeavors, exchanges, and contracts) is not a system that optimizes its parameters to maximize the common good – or any goods for that matter, other than life, liberty, and property.  Rather, it converges on configurations and parameterizations that fulfill the common desires of society. Therein may lie its greatest weakness. It will not converge on moral goods unless a critical mass of people desires them.

Decision theory posits that we all seek to make rational choices that maximize some measure of expected utility. Woods might be have been right, even in the deep south of the 1960s, if profit were the only or most important measure of utility. However, rational choices can be made with respect to any number or manner of irrational ideals, be they good (e.g., the cardinal virtues) or evil (e.g., the cardinal sins). Thus, monetary cost is not the only consideration in consumers’ subjective valuation of products and services or from whom to acquire them, nor is monetary profit the only consideration in producers’, distributors’, or merchants’ pricing of products and services or to whom they might provide them.

The market is an incredibly complex network of individuals, collectives, utility functions, and rules for how they all interact – a game, if you will. Much like a physical system seeking an equilibrium configuration of entities that minimizes free energy, the market seeks to optimize utility functions within given constraints. What if the market settles into a local, rather than a global optimum, though? What if that optimum, which may or may not be stable, makes a collective of people a permanent underclass or lower caste?

If the common desires are not common goods, grave injustices could hypothetically be committed for indefinite periods, even when perpetuating and perpetrating them are irrational and counterproductive when viewed solely in light of the profit motive. Bigots in solidarity could deprive oppressed collectives of life, liberty, and/or property indirectly in effect, if not directly in deed. The market would settle on an optimum for the ruling class.

The core of libertarianism is the Non-aggression Principle, which forbids “initiation of physical force, the threat of such, or fraud upon persons or their property”. That’s active aggression, though. What about passive aggression? Might it be possible to deprive or interfere with a person’s life, liberty, or property through passively aggresive means, i.e., gaming the system? Could it be done without explicit force, coercion, or deliberate fraud?

A friend of mine, Rob Carr, asked an insightful question that put all of these muddled thoughts in my head.

“What if you weren’t permitted to take your child to any hospital within 60 miles when he’s sick?”

By “not permitted”, I take him to mean “impeded by passive economic aggression”, rather than “forbidden by force of law”. In addition to the seeds for this post, that question led me to ask the following questions of myself and my readers.

1938 sign in Lancaster, Ohio (public domain photo courtesy of Wikimedia Commons)

  • How secure is your life if you are denied affordable nourishing food, clean water, or affordable life-saving/sustaining healthcare?
  • How secure is your liberty if by concerted effort you are denied free participation in the market by the majority of your peers? Denied affordable and comfortable transportation? Denied affordable, quality housing?
  • How secure is your right to private property if there are coordinated efforts to deny your acquisition of property (at least at affordable prices) or your attempts to obtain gainful employment?
  • What about our equality in inherent human dignity? Isn’t prejudicial discrimination antithetical to human dignity?

The free market does not fail. It always gives us what we want, whether it’s good for us or not. I am confident that there are nearly always market-based (i.e., private) solutions to societal injustices. Nearly always. What if prejudicial discrimination doesn’t have an achievable private solution?

Was the Civil Rights Act good and necessary after all? I don’t know. What are your thoughts?

Addendum 05/23/10: It’s come to my attention that the statement that  the “free market does not fail” has been misunderstood. Actually, it’s been called “stunningly naive (and very untrue)“. However, I think calling it naive it a misunderstanding of my intended meaning. Anyhow, by saying “the free market does not fail”, I mean that in much the way I’d mean “the physical laws of the universe (thermodynamics, gravitation, etc.) do not fail” or “evolution does not fail”. Certainly, there can be outcomes that are unpleasant when considered from certain perspectives, but they do not “fail”, as the word is commonly understood.

At a gross level, the market can be likened to a complex system of entities (persons, businesses, goods, etc.), forces (fiduciary media, credit, etc.), and constraints (laws, natural phenomena, etc.). The system is directed, as if by the  invisible hand of entropy, to a free energy minimum – an equilibrium. Subjective valuation of events and outcomes in the free market system are extrinsic to the system itself. An earthquake that kills thousands of people is a tragic event, but it does not represent a failure of geological forces. In contrast, a set of laws that puts people at greater risk of dying during earthquakes (through something they are forced to do or not do) can be rightly considered a failure of government.

With regard to the last point, this:

“It’s also worth noting that Plessy v. Ferguson involved a Louisiana law that was designed to prevent the Pullman Company from offering equal seating options to blacks. That, in fact, was the entire purpose of Jim Crow laws. Even if, for example, the Woolworth’s in Greensboro, North Carolina had wanted to serve the four black college students who sat down at their lunch counter on February 1, 1960, the laws in place at the time told them that they couldn’t. Racial segregation in the South wasn’t a product of the free market, it was the product of a state imposing racial prejudices under the threat of criminal prosecution. For that reason alone, it was a violation of the 14th Amendment and the Federal Government was entirely justified in trying to bring it down.

“Now, none of this means that racism didn’t exist in the South. Obviously it did, otherwise Jim Crow never would have been imposed in the first place. However, by passing these laws it’s fairly clear what that the intent of the Southern legislatures was to prevent the newly freed blacks from participating in the economic life of the South by denying them access to jobs, business opportunities, and trade while at the same time denying them access to the polls so that they wouldn’t be able to have their voice heard at the state capital. At the same time, it prevented other whites, as well as businesses from other parts of the country, from any efforts to break down the walls of segregation.”

Update 05/24/10: Jacob Sullum at Reason Magazine has a pretty good rebuttal to Bruce Bartlett.

‘Undoubtedly, changing mores would have broken down some of this over time, but there is no reason to believe that it would have been quick or that vestiges wouldn’t still remain today. Indeed, vestiges remain despite the Civil Rights Act.’

“This is a serious objection that opponents of bans on private discrimination have to address…

“Unfortunately, Bartlett conflates this argument with a puzzling claim that the Supreme Court was at “its most libertarian” when it blocked enforcement of the 14th Amendment…As Damon Root noted last week, state-mandated segregation ‘is not a market failure; it’s a racist government assault on economic liberty.’

“Bartlett’s careless conflation of private and public discrimination renders Paul’s position, which is based on the vitally important distinction between the two, incomprehensible. Bartlett then uses his own confusion to portray Paul and libertarians generally as apologists for racist government policies:

‘…Thus we have a perfect test of the libertarian philosophy and an indisputable conclusion: it didn’t work. Freedom did not lead to a decline in racism; it only got worse.’

“The ‘perfect test’ of freedom was a legal regime in which the rights of African Americans were systematically denied, murderous assaults on them went unpunished, and businesses were forced to discriminate against them? And all that was somehow the result of ‘libertarian philosophy’? It’s hard to believe that Bartlett, a former Ron Paul staffer and occasional Reason contributor, believes any of this. This deliberately dense rant reeks of Bartlett’s desperation to distinguish himself from libertarians who have been unfairly tarred as racists by joining in the ad hominem assault.”