Always That Last Leap
I would very much like to be won over by Ramesh Ponnuru’s argument against libertarian reservations about the Civil Rights Act (recently in the public consciousness thanks to Republican U.S. Senate Candidate from Kentucky Rand Paul. But I cannot escape the conclusion that Ponnuru’s dual structures of legalism and appeals to legislative judgment never quite eliminate the leap of just wanting it to be so — that is, just wanting Congress to have the power to compel private citizens acting in private capacity to determine the criteria by which they may act.
… Jim Crow was a deeply rooted social system with many facets that blurred the private-public distinction. Governments discriminated against citizens, and ordered the private sector to discriminate. Privately organized terrorism was allowed by the state. It was entirely reasonable for a constitutionally conscientious legislator to conclude that the only way for Congress to enforce the guarantee that states offer equal protection to all citizens was to uproot the whole system: Force the states to allow blacks to vote; require hotels and theaters to treat customers without regard to race; ban employers from considering race as well; end every part of the system that could be ended.
If this reasoning suffices to overcome constitutional scruples about the legislation, it should also suffice to overcome libertarian ones. One might believe that in general people should be free to hire or fire employees on whatever basis they wish, and set a high bar for the infringement of this freedom, while also believing that in the specific circumstances legislators faced in the 1960s this freedom had to be curtailed in order to end a wicked and coercive status quo.
Reading the essay, I was wholly with Ponnuru through this point and hoping that his considerable intellect would enable an a-ha against my libertarian tendencies, but then he goes on as follows:
Note, however, that this reasoning, depending as it does on the peculiar circumstances Congress faced, cannot justify just any congressional enactment in the name of equality. It would be implausible to argue, for example, that Congress had to outlaw age discrimination for the elderly to enjoy equal protection. Nor, I think, could a legislator argue with a straight face that requiring universities and employers to extend preferential treatment to black applicants would be justified as a way to enforce the Fourteenth Amendment.
Sure, the “peculiar circumstances” argument is plausible, and it’s certainly one I would make against extensions of equality-by-dictat, but it’s not quite adequate to the libertarian challenge. Ponnuru argues, essentially, that (owing to the 14th and 15th amendments) the Constitution gives Congress the power to pass such laws and that doing so remains a matter of legislative judgment. It may be implausible to say that Congress must include other forms of discrimination, but history has surely proven that legislators are perfectly capable of finding justification on other grounds.
After all, at root, the anti-discrimination movement takes as a given that all of the tendencies that they loathe are functions of “a deeply rooted social system.” What libertarians would need — what I need, frankly — is a reason, in the law, that only matters of race — especially those tied to our national original sin of slavery — justify the governments telling people whom they must hire and with whom they must associate if they’re inclined toward certain activities.
Furthermore, with the advantage of retrospect, it’s still reasonable to wonder whether racial strife wouldn’t have dissipated more rapidly had it come via the mechanism of private acts of condemnation.