Civil Rights, and the Acts thereof

Revisiting a libertarian critique in light of recent events

I think it’s time for me to come out of the closet: I’m a libertarian. Shock, gasp! But let me clarify that statement a bit, for there are libertarians and then there are libertarians. I’m the boring kind of libertarian. I’m center-left on social issues and center-right on economic issues. On the economy, I’m in favor of free trade by default; on culture, I’m in favor of free expression by default. That is, I tend to agree with the Democrats on culture and the Republicans on economics, but in a centrist sort of way, since there are good arguments to be made on both sides of almost any debate. I’m against authoritarianism in all of its forms, and particularly against authoritarian populism, because populists tend to be on the right on social issues and on the left on economic issues. In short, I’m against everything that Donald Trump is for, and that was my politics long before Trump ever entered the political scene. A Resist Lib avant la lettre.

It feels safe to come out of the closet as a libertarian because the insane authoritarian populism of Trump has made those on the left (my natural political tribe in a number of ways, and the probable majority readership of this blog) more sympathetic to my politics. I’ve seen a number of left-ish people online recently say some version of “I’ve never been a libertarian, but free minds and free markets sound pretty good around now.”

Particularly interesting to me was a recent post by popular progressive(-ish) econ blogger Noah Smith, who recently wrote that he had a newfound appreciation for libertarianism. While he got his start in blogging by raking libertarianism over the coals (as any good progressive-ish economist would do), he failed to recognize that libertarianism is good, actually. More specifically, while he harped on a number of ways in which the economy could be improved by being slightly less libertarian, he had failed to appreciate the various ways in which having libertarianism be a sort of default position in American politics (particularly right-wing American politics) kept the lid on some rather awful political tendencies that have come to assume power now that that libertarianism has been kicked to the curb. If you didn’t like the libertarian right, wait until you see the post-libertarian right.

And yet Smith, as a good non-libertarian, felt the need to open his piece with a list of ways in which he still disagrees with libertarianism. The second item on the list is:

By treating all of society as an interaction between a government and the individuals it governs, libertarians tend to ignore the threats to liberty from non-governmental institutions (“local bullies”), and from foreign governments. This led some libertarians to oppose the Civil Rights Act, and to underestimate the threats from illiberal powers like China. And these omissions led to some unsavory people grafting themselves and their oppressive ideas onto the libertarian movement.

So ok, let’s talk about the Civil Rights Act.

I know, I know! I feel you reaching for your pearls again, ready to clutch. So let me begin by saying that I am not against the Civil Rights Act. I think it has been, on the whole, good. But as with much else in politics, there are good arguments to be made on either side. And I think that there are good arguments to be made against the Civil Rights Act. It is, on net, good. But that doesn’t mean there’s no bad to it. And the bad is, basically, the argument that libertarians have long had against the Civil Rights Act.

The libertarian argument against the Civil Rights Act is that it represents a dramatic (and arguably unconstitutional) expansion of government power to interfere with the way that private institutions and organizations conduct their affairs. Prior to the Civil Rights Act, if a business wanted to refuse service to black people, that was their right. They were utter dicks for doing so, but, as they say, it’s a free country. If you start a business, you can do with it as you please. And if you’re a racist asshole, you can conduct your business in a racist, asshole-ish way. That changed with the Civil Rights Act. The Civil Rights Act said, in so many words, that if you want to use your business (or other institution) to discriminate on the basis of race (or sex, or any other number of protected categories), then you are, at that point, the government’s plaything. They can fuck with you in any way that they want in order to get you to stop your discrimination.

This was a good thing (on net)! The system of Jim Crow apartheid in the south over the century leading up to the passage of the Civil Rights Act was put in place in part by official acts of government discrimination, but in larger part by the panoply of institutions of civil society - schools, businesses, churches, etc. - that made up southern life engaging in routine discrimination. Simply ending government discrimination would have hardly made a dent in Jim Crow. Something more sweeping and energetic was needed.

The right protested. Some protesters were racists, of course. Bull Connor’s objection was that segregation was good, and so the government forcing an end to segregation was bad. But libertarians like Barry Goldwater had a different objection. Of course segregation was bad, but empowering the government to end segregation would be to give the government too much power over private institutions.

There are basically two lines of response to this libertarian critique. The first is that the libertarians argued in bad faith. They were really segregationists like Bull Connor, and simply hiding it with high-minded rhetoric. Doubtless that is true of some self-described libertarians. But it wasn’t true of all. So the second response is that this is anti-authority objection is fundamentally silly. Government power was being wielded in novel ways, to be sure. But it was being wielded to end discrimination on the basis of race! Discrimination on the basis of race is bad. Very bad. And if federal government power is the only way to end discrimination on the basis of race, then government power is the appropriate medicine.

And so the Civil Rights Act was used in a variety of ways to force various private institutions to stop discriminating on the basis of race. Most famously, of course, the various shops, restaurants, and other businesses across the Jim Crow south could no longer refuse service to black people, as they’d long been accustomed to doing.

The remit of the Civil Rights Act is not limited to businesses. Even academia fell under the jurisdiction of the Civil Rights Act. Bob Jones University, a conservative university with regrettable views on race and race relations, was an active practitioner of race-based discrimination. They didn’t admit any black students until 1971, and even after maintained a policy forbidding inter-racial dating and marriage. In response, the IRS (citing the Civil Rights Act) stripped Bob Jones University of its tax-exempt status, forcing BJU to pay millions in back taxes.

Was this a good ruling? Well, it imposed a penalty for racist discrimination, and I can’t say I’m opposed to that. And it was entirely legal. If you engage in racial discrimination, you are, after all, the government’s plaything, and they are fully entitled to fuck with you until you shape up. That’s what the Civil Rights Act says (in so many words). And here it seems to have been used to bring about a good outcome.

But.

If you engage in discrimination on the basis of race, the Civil Rights Act says that you are now the government’s plaything. And affirmative action is discrimination on the basis of race. So, according to the Civil Rights Act, any institution that has a policy of affirmative action is the government’s plaything. And the government is, at the moment, largely controlled by one Donald J Trump, who is positively delighted to use the power of the government to fuck over any liberal controlled institution. And since approximately every liberal-controlled institution has had a policy of engaging in affirmative action for the last few decades, the government now has a right to fuck over every liberal-controlled institution. The Civil Rights Act says so.

This includes academia. Trump has already (famously) moved to strip Harvard of its tax-exempt status, on the basis of Harvard’s discrimination against whites, Asians, and Jews. It has not stopped there. The news today is that the Trump administration is launching a Civil Rights investigation into UCLA’s medical school for practicing affirmative action policies. They are entirely within their legal rights to do so; the Civil Rights Act says so.

Is this bad? I sure think so. But on what basis might one object? A first objection might be that this is a mis-application of the Civil Rights Act. But it is not. While proponents of affirmative action might make a distinction between good discrimination on the basis of race and bad discrimination on the basis of race, the Civil Rights Act does not. According to the Civil Rights Act, any discrimination on the basis of race is forbidden and may be stamped out with the full might of the federal government. This is both the plain meaning of the text of the law, and also how the law has been consistently interpreted by the Supreme Court.¹ That liberal institutions who engage in affirmative action have not found themselves beneath the boot heel of the federal government thus far has been an exercise in forbearance by the executive. Trump is unique in that he is not particularly given to forbearance.

So on what other basis might one object? Here’s a tempting reply: the government has no right to trample on academic freedom. Ah, but they do! Ask Bob Jones University. The government has a legal right to trample on the academic freedom of institutions that discriminate on the basis of race. That’s what the Civil Rights Act says.

“Well, they have the legal right, to be sure. But not the moral right.” And here I’m inclined to agree with the objection. But note that this amounts to an objection to the Civil Rights Act. It gives the government a legal right to do that which they have no moral right to do. Indeed, this is the old libertarian objection to the Civil Rights Act. Barry Goldwater is vindicated at last.

Or is he? I’ve no desire to drive home the point, to twist the knife. I’m a mild, boring sort of libertarian, after all. The world is complicated, and we should never commit ourselves fully to any particular perspective. The Trump administration’s treatment of Harvard is bad. But Jim Crow was worse. If the worst that can be said about the Civil Rights Act is that it gave Donald Fucking Trump the power to run roughshod over liberal institutions, and the best that can be said is that it ended Jim Crow, then the Civil Rights Act comes out way ahead. Jim Crow was that bad.

But the libertarians had a point. I think it’s easier to see that now.

1. One might claim that this interpretation is novel as of the SFFA decision last year. But affirmative action has been deemed illegal by the Supreme Court for decades. It’s just that the court has held that other kinds of discrimination are legally permissible, e.g. discrimination in the interests of “diversity,” and liberal institutions have used those permissions as a fig leaf for affirmative action. The only distinctive thing about SFFA is that it made a point of saying “enough with the fig leaves.”