Libertarianism and civil rights legislation

Unlike Matt Yglesias, I can’t say I’m a libertarian per se even one minute of the day. Being a Canadian, even at my most libertarianish phase of adolescence I supported socialized medicine. I do have libertarian positions on a number of issues, though, so it is in a way a part of my political makeup (indeed, too much so for my co-bloggers.) And I will follow this up with a companion post IDing an issue about which the libertarian position is obviously correct. With respect to legislation restricting discrimination in employment, housing, and education, however, Matt is clearly right 16 hours a day:

• First of all, it’s important to remember that when discussing employment and housing discrimination, you’re generally dealing with commercial entities. (I do think that situations where an individual is renting out a room in a residence are tougher cases, and I wouldn’t object to such landlords being exempted from civil rights laws if viable.) The good reason not to ban discrimination in, say, private clubs is that the social good (such as racial or gender equality) conflicts with other important rights (most importantly, freedom of association), and also creates obvious slippery slope problems. When dealing with artificial entities created by the state to facilitate commerce, or individuals engaging in commercial enterprises, these conflicts pretty much vanish. There are obvious reasons why (if one accepts them in the first place) corporations should be protected by due process and takings rights, but I see no “freedom of association” inhering in a corporation or business that’s very powerful. A corporation is a tool created by the state, and can surely be limited by conceptions of social utility. Not only does discrimination on the basis of race of gender or sexual orientation not facilitate social goods, it’s quite the opposite; they are economically irrational, and work at cross-purposes with the reasons corporations and markets are created in the first place. Libertarian arguments just aren’t very normatively powerful when dealing with the forms of discrimination that most civil rights legislation actually deals with.
• Second, it’s important to emphasize that state discrimination and private discrimination cannot be easily decoupled. It is clear from American history that the latter is absolutely crucial to the former, and also that employment and housing discrimination inhibit the exercise of fundamental political rights. Black disenfranchisement–the discrimination that was the most important in upholding Jim Crow–would have been impossible without private discrimination. Even in its most conservative periods, the Supreme Court did not allow explicitly discriminatory voting laws, and they also invalidated the most obvious evasion (the grandfather clause.) Disenfranchisement was achieved by discriminatory application of formally neutral laws, and this was allowed to persist because people who challenged this publicly were (in addition to frequently being subjected to violence) denied housing, employment, and credit. (This was, of course, also true of segregation, although in those cases the state action was openly discriminatory; see the opening chapters of Richard Kluger’s superb book.) The role of private discrimination in creating and upholding state apartheid also illustrates the most obvious problem with libertarianism. Given the vastly greater bargaining power of employers and landlords over most individuals, in many cases the rights guaranteed by libertarianism become meaningless formalities. These massive private inequalities, if left completely unchecked, inevitably become reinforced by state power.

There are many cases in which libertarian arguments can (and should) cause progressives serious thought. But most civil rights legislation, to me, isn’t even a very hard case.