There’s been a pretty big controversy over some comments made by Rand Paul about the Civil Rights Act of 1964. Julian Sanchez has an article in Newsweek describing some of the conflict, along with a discussion of Rand’s and (his father’s) mixed record on race. Most interesting to me, though, were some of Sanchez’s arguments about how a libertarian could come to consistently support the Civil Rights Act of 1964. In short, Sanchez makes the argument that because the government enforced and perpetrated wrongs against African Americans in the past, the Civil Rights Act was justified:
Unfortunately, history happened. Rules for utopia can deal with individual crimes—the mugger and the killer and the vandal—but they stumble in the face of societywide injustice. They tell us the state shouldn’t sanction the brutal enslavement or humiliating legal subordination of a people; they have less to say about what to do once we have. They tell us to respect the sanctity of the property rights that would arise as free people tamed the wilderness in John Locke’s state of nature. They have less to say about the sanctity of property built on generations of slave sweat and blood.
In this passage, Sanchez makes an analogy between the Jim Crow south and “individual crimes” for two reasons: to point out that the discrimination faced by African Americans was not merely private but also had a component that was empowered and enforced by the government; and also, in order to make an argument to libertarians. The argument for libertarians is that since discrimination and injustice perpetrated against African Americans was in-part inflicted by the government, African Americans are entitled to restitution that is analogous to the restitution libertarians believe exists for individual victims of crime. Basically, under this analogy, the Civil Rights Act of 1964 is justified as a restitution measure rather than as a moral prohibition on discriminatory conduct.
Sanchez realizes that this would require us to consider the Civil Rights Act and similar anti-discrimination measures very differently than how we consider them today:
How far it [the Civil Rights Act] could be extended to other forms of discrimination—against the disabled, the elderly, women, gays—should be determined not by a blanket assumption that government can always restrict associational rights in the name of equality, but by a fact-intensive, case-by-case inquiry that factors in both the state’s past complicity in depriving groups of their rights and the extent to which those groups would in practice be systematically denied equal participation in society absent state correction.
Liberals and progressives, for their part, should also reconsider whether the civil-rights era’s expansion of federal power ought to be seen as a norm or an exception.
An interesting view, to be sure. Julian expands on his discussion here. But since the law itself already included religion and gender, and the law was followed by anti-discrimination law covering age, pregnancy, disability status, and even genetic information, I would guess that it’s unlikely we’ll ever see anti-discrimination law that way. For most people, the Civil Rights Act was not merely a measure of restitution for the government-perpetrated wrongs of the Jim Crow south, but a prohibition on conduct that is unacceptable — with good reason. Contrary to libertarian theory, associations and inactions can injure in such a way that they can and should be made illegal. Anti-discrimination law is an example of such a criminalization, as well as a declaration that morally arbitrary characteristics should not determine a person’s destiny.
In fact, I would argue that the Civil Rights Act of 1964 (and other related remedies of private discrimination) are a more fundamental challenge to libertarianism than even Julian Sanchez might think. Discussing a debate between Robert Frank and David Friedman, Will Wilkinson made an excellent short summary of a foundational conflict between libertarianism and egalitarian liberalism:
The standard libertarian views on distributive justice are (a) that there is no objection to patterns of holdings that arise from exchange of justly owned goods according to just rules, and (b) because we are in society with our trading partners, and because our trading partners span the globe, the pattern of holdings that arise from exchange is an international pattern.
Despite Hayek’s and Nozick’s devastating attacks on pattern conceptions of justice — that constantly intervening to “correct” the pattern is inconsistent with the rule of law (Hayek) and would require the constant violation of individual rights (Nozick) — Frank nevertheless seems to assume libertarians have a pattern theory, but simply prefer market patterns. That’s wrong. Most libertarian accounts of justice do not require that the pattern of incomes be made (by government redistribution!) to mirror the pattern that would be produced by unregulated private markets. Libertarian justice requires unregulated (or lightly regulated) private markets, period. The pattern they produce is not important.
The argument is simple: libertarians do not care about the distribution of income. Vast inequalities of wealth? No problem! If anything (the utilitarians among them argue), the unequal rewards of society motivate those at the bottom to work harder for the prize. But the problem is where this argument goes. What if racial segregation, and its effects of suffering, poverty, social dysfunction, deprivation of political power, and violence, had all emerged without the government interference libertarians use to justify the Civil Rights Act? What if, under conditions of liberty, a pattern emerged that systematically denied African Americans the opportunities available to white Americans?
The unfortunate conclusion of the argument that the “pattern of distribution” doesn’t matter is that libertarians cannot justify government intervention against discrimination. And that’s quite frankly unacceptable to the vast majority of people, because it seems wrong for people’s opportunities in life to be based on something as arbitrary as race. To those people, the color of your skin should not determine whether you get a job or not, or get served or not, and feel that a necessary precondition for that thing we call democracy to take place is that such conditions do not exist. Furthermore, the arguments that libertarians put forward do not work with this example — we’ve seen neither totalitarianism nor a break-down of the rule of law with the introduction of equal opportunity in the workplace. Private racism can provide a more poignant and powerful example of problems with libertarianism than even economic inequality.
The Rand Paul flap-up doesn’t show us that the Civil Rights Act is actually a restitution measure meant to rectify government discrimination against African Americans. What it shows us is that sometimes, patterns emerge that are unacceptable — and when those patterns emerge, the government can — and should — take action. What it shows us is that there’s something fundamentally wrong with libertarianism, specifically, how it fails to rectify private injustice.