Libertarian Civil Rights

The recent clamor over Rand Paul’s comments on the Civil Rights Act were a useful indicator of one of the problems with the libertarian approach to society. Paul was clear, in retrospect, that he supported the Civil Rights Act, but he was also clear that he was concerned about its effect on business owners.

Any society is a balancing of rights among all its members. All societies agree that people have different rights in different roles. The complex cases for societies are deciding what to do when those rights conflict. The libertarian point of view tends to emphasize one particular right over all others: the right to private property. But that is not the only right in our society, and cases like segregated lunch counters give that a nice clarity. If a business is open to the public, then if we are a member of the public, we have the right to expect it to be open for us. There are a number of ways which society permits business to discriminate; most obviously, businesses may discriminate against people without money. But society does not permit businesses to discriminate against people on the basis of skin color. This is not a grey area.

If you focus only on the right to private property, then the ability of businesses to discriminate against customers is a troubling case. That is how Paul got into trouble and had a hard time giving a clear answer to a relatively simple question. If you consider this issue as a balancing of rights, then there is no difficulty.

There are certainly hard cases in rights balancing; this just isn’t one of them. A hard case is how much accommodation a small business must provide a disabled customer. E.g., we all agree that the business must serve someone in a wheelchair, but is a business required to make it possible for that person to get to all parts of the store?

If Paul wants to get elected and be an effective senator, he must not only learn to answer simple questions in a straightforward way. He must also learn that the role of the politicians is to balance rights, not to promote one specific right over all others.

8 Comments »

  1. fche said,

    May 26, 2010 @ 8:10 am

    “If a business is open to the public, then if we are a member of the public, we have the right to expect it to be open for us.”

    The “right to expect to be open” reminds me of that skit in Monty Python’s Life of Brian, where
    one of the PFJ men wants to become a woman, and have a baby. “… I have a right to want to have a baby …” Then there’s the corollary of the black/white segregation issue: should a jewish restaurant have to serve a neo-nazi club? Or force the boy scouts (a religious organization) to employ openly gay teachers?

    “If you consider this issue as a balancing of rights, then there is no difficulty.”

    I don’t know how that solves the problem. It turns everything grey – subject to the whims of congress, the paragons of morality they are. I’d rather start from a presumption of laissez faire, and work very carefully up from there. I’d rather push on the governmental bodies to provide genuinely blind justice.

  2. Simetrical said,

    May 26, 2010 @ 9:13 am

    “But society does not permit businesses to discriminate against people on the basis of skin color. This is not a grey area.”

    Isn’t it? The film industry can discriminate on practically any basis when selecting actors. The fashion/advertising/etc. industries can discriminate against black models if they feel white models would better appeal to their audience. (Or maybe they technically can’t, but they do anyway.)

    More controversially, Arabs are more likely right now to attempt acts of terrorism on airplanes, so society has an interest in doing more security inspection on Arabs. This is unfair to them, but the interests of society weigh against their individual rights. Of course, you might conclude that racial profiling should be banned anyway, but it’s still a gray area (or at least it would be if terrorism were a more serious threat).

    As you say, it’s always a tradeoff. Non-discrimination is not always the correct balance to strike. The unfortunate thing about tradeoffs is that everyone will strike them differently. Thus we end up with widespread hypocrisy, like officially not allowing racial profiling but actually doing it anyway. Libertarians can at least claim to be more consistent. But c’est la vie.

  3. Ian Lance Taylor said,

    May 26, 2010 @ 9:27 pm

    fche: Although the term does not normally mean this, true laissez faire would mean no private property or sanctity of contract. We can’t start from there. And if we start from private property, then why are we prioritizing that? That is one important aspect of human behaviour, but not the only one. I believe that prioritizing private property above all else is an error.

    Simetrical: I should have said that I was thinking of customers. There are indeed restricted but legitimate reasons to discriminate when it comes to employment. That is not the same thing as discrimination against customers.

    I’ll note that your suggestion that Arabs are more likely to attempt acts of terrorism is dangerously misleading. The Christmas Day bombing attempt was not done by an Arab. I don’t see any evidence that the Times Square bombing attempt was done by an Arab; he was reportedly born in Karachi, a place where few Arabs live. The man who flew a plane into an IRS building–the most successful recent terrorist attack in the U.S.–was not an Arab.

    Still, you’re right that it is always a tradeoff. But I did not and would not say that discrimination is never permitted. I said that businesses may not discriminate, and I should have added that specifically they may not discriminate as to who they serve. As far as I know nobody has suggested that airlines should refuse to sell tickets to Arabs.

  4. Simetrical said,

    May 27, 2010 @ 7:15 am

    Discrimination against customers is hard to justify, I agree. The strongest pragmatic reason is if your other customers wouldn’t want to go to a store frequented by some group. I doubt racist storekeepers in the South would have minded taking money from blacks, but their customers minded. Of course, this is a reason for regulation – the reason for discrimination evaporates if all store owners are strictly required not to discriminate, because then pro-discrimination customers won’t be able to find a store that does discriminate.

    As for terrorism, about 0.5% to 1% of Americans are Arabs, according to Wikipedia. Even if only 20% of attempted terrorism against planes were due to Arabs, that still means a random Arab is much more likely to commit terrorism against a U.S. airline than a random non-Arab. I don’t claim that this difference is necessarily enough to justify discrimination, but it’s more than enough to make my point. Airlines are businesses, and discrimination against customers does not mean only complete denial of service – it can mean providing service in a more inconvenient or expensive manner as well.

    But I believe we essentially agree on this point. I only objected to the absoluteness of your statement “This is not a grey area.”

  5. fche said,

    May 27, 2010 @ 7:42 am

    “Although the term does not normally mean this, true laissez faire would mean no private property or sanctity of contract. We can’t start from there.”

    I guess I wasn’t talking about your uncommon definition of “true laissez faire” but the normal one: to keep governmental force away from normal private lives as much as possible. And the burden of proof for going beyond that should be high.

    “And if we start from private property, then why are we prioritizing that?”

    Because private property is one of the definitional aspects of human individuality and freedom.

    “That is one important aspect of human behaviour, but not the only one.”

    Yes, but when it conflicts with things even farther from natural human behaviour such as statutorily-imposed non- or positive-discrimination, there is a certain shine and clarity there.

  6. Ian Lance Taylor said,

    May 30, 2010 @ 8:53 pm

    fche: other definitional aspects of human behaviour are that humans live in a community, and reject unfair treatment of members of that community–both behaviours can be seen in babies, according to a recent New York Times Magazine article. Why prioritize private property over that?

    Simetrical: I’m not sure, but you have missed my point about Arabs. As far as I can recall, none of the recent terrorist attacks were made by Arabs, so focusing on Arabs would be deeply counterproductive. I’m also not aware of any terrorist attacks made by Arab Americans, so those percentages seem irrelevant. Focus on where the treat is coming from.

  7. fche said,

    May 31, 2010 @ 7:31 am

    “other definitional aspects of human behaviour are that humans live in a community, and reject unfair treatment of members of that community … Why prioritize private property over that?”

    I see no contradiction.

  8. Simetrical said,

    May 31, 2010 @ 11:52 am

    Ian: Okay, it was a lousy example. There are conceivable circumstances where businesses should racially profile their customers. I suspect there are real-world examples too, but I can’t think of any.

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