Current Affairs

Why Libertarians Oppose Civil Rights

By making private property sacred, free-market ideology places the right to discriminate above the right not to be discriminated against.

[content warning: racism] 

After the death of civil rights legend John Lewis, the free-market Cato Institute wasted no time in declaring him a “libertarian hero.” That would have come as surprising news to Murray Rothbard, the libertarian economist who co-founded and named the Institute. Rothbard, complaining in 1991 of the expansion of protections against sexual harassment (“there ain’t no such crime,” he wrote, blaming “feminist harpies” for the concept), attributed the source of the trouble to what he called “civil rights hokum”:

The start of the evil can be pinpointed precisely: the monstrous Civil Rights Act of 1964, specifically Title VII, prohibited discrimination in employment on the basis of race, religion, sex, and other possible characteristics. This horrendous invasion of the property rights of the employer is the source of all the rest of the ills, neocons and sellout Libertarians to the contrary notwithstanding. If I am an employer and, for whatever reason, I wish to hire only five-foot-four albinos. I should have the absolute right to do so. 

Not all free-market libertarians use the words “monstrous” and “horrendous” to describe the civil rights legislation for which Lewis fought (Lewis: “This bi-partisan effort set the stage for the kind of America we live in today, a more fair and inclusive democracy than it has ever been before.”) But many, if not most, of them share Rothbard’s general stance on anti-discrimination laws. Here’s Milton Friedman in Capitalism and Freedom:

Is there any difference in principle between the taste that leads a householder to prefer an attractive servant to an ugly one and the taste that leads another to prefer a Negro to a white or a white to a Negro, except that we sympathize and agree with the one taste and may not agree with the other? I do not mean to say that all tastes are equally good. On the contrary, I believe strongly that the color of a man’s skin or the religion of his parents is, by itself, no reason to treat him differently; that a man should be judged by what he is and what he does and not by these external characteristics. I deplore what seem to me the prejudice and narrowness of outlook of those whose tastes differ from mine in this respect and I think less of them for it. But in a society based on free discussion, the appropriate recourse is for me to seek to persuade them that their tastes are bad and that they should change their views and their behavior, not to use coercive power to enforce my tastes and my attitudes on others.

By 1963, John Lewis had been arrested dozens of times in civil rights protests. That year, he was serving as Chairman of the Student Nonviolent Coordinating Committee, and was even clashing with others in the civil rights movement because he believed the Kennedy administration’s proposed civil rights bill didn’t go far enough. Here is what Ayn Rand was writing that same year: 

The “civil rights” bill, now under consideration in Congress, is another example of a gross infringement of individual rights. It is proper to forbid all discrimination in government-owned facilities and establishments: the government has no right to discriminate against any citizens. And by the very same principle, the government has no right to discriminate for some citizens at the expense of others. It has no right to violate the right of private property by forbidding discrimination in privately owned establishments. No man, neither Negro nor white, has any claim to the property of another man. A man’s rights are not violated by a private individual’s refusal to deal with him. Racism is an evil, irrational and morally contemptible doctrine — but doctrines cannot be forbidden or prescribed by law. Just as we have to protect a communist’s freedom of speech, even though his doctrines are evil, so we have to protect a racist’s right to the use and disposal of his own property. Private racism is not a legal, but a moral issue — and can be fought only by private means, such as economic boycott or social ostracism. Needless to say, if that “civil rights” bill is passed, it will be the worst breach of property rights in the sorry record of American history in respect to that subject. It is an ironic demonstration of the philosophical insanity and the consequently suicidal trend of our age, that the men who need the protection of individual rights most urgently — the Negroes — are now in the vanguard of the destruction of these rights.

Rand said she deplores racism as irrational (although she herself was a racist), but she was unequivocal here: Black leaders like Lewis were at the “vanguard of the destruction” of individual rights, part of a philosophically insane and suicidal assault on property. 

Libertarians did not grow out of this view after the Civil Rights movement’s victories. They just got a little more quiet about it. Rand Paul infamously became very uncomfortable when asked about the 1964 Civil Rights Act, saying he would have opposed it “because of the property rights element,” that while he “liked” the Act insofar as it prohibited discrimination by the government:

I don’t like the idea of telling private business owners… I abhor racism. I think it’s a terrible business decision to exclude anybody from your restaurant. But, at the same time, I do believe in private ownership.

Rand Paul’s father, former Libertarian Party presidential candidate Ron Paul, went well beyond mere “property rights” rhetoric, publishing a series of outright racist newsletters that spoke positively of David Duke, called Martin Luther King a “a world-class adulterer” who “seduced underage girls and boys” and “replaced the evil of forced segregation with the evil of forced integration,” saying of the Rodney King uprising that “order was only restored in L.A. when it came time for the blacks to pick up their welfare checks,” and commenting on a protest action led by Al Sharpton: “Next time, hold that demonstration at a food stamp bureau or a crack house.” 

The president of the Cato Institute, David Boaz, while distancing himself from Ron Paul’s outright racism, (“those words were not libertarian words”) nevertheless subsequently praised him as having “a passionate and deeply informed commitment to individual liberty.” Cato perspectives on the 1964 Civil Rights Act have been roughly in line with those of Rothbard, Friedman, and Rand. (Cato also filed an amicus brief with the U.S. Supreme Court encouraging it to strike down the heart of the Voting Rights Act, writing that “the VRA, once justified by Jim Crow, is now ‘an eye glazing mess.’”) A 2016 article called “Libertarianism and the Right to Discriminate” affirmed that:

From a legal perspective, discrimination should be permitted in any society that honors freedom of association. A member of one religious or racial or ethnic group should not be required, against his or her will, to associate with members of other groups. On the other hand, it’s perfectly consistent to argue from an ethical perspective that religious, racial, and ethnic discrimination is sometimes reprehensible. We should condemn people who practice such discrimination, even as we insist on their legal right to do so. Private discrimination that isn’t engineered by government can be censured via nongovernmental means — for example, refusal to patronize bigots, social ostracism, and adverse publicity regarding the discriminatory acts. We can denounce immoral conduct — such as lying, infidelity, and even bigotry — without empowering the state to take remedial action.

In a 2010 Cato symposium debating the 1964 Civil Rights Act (because for them, it’s still up for debate), a panel of four white men (surely just a coincidence) tried to figure out whether (A) prohibiting discrimination was bad but could perhaps be justified by how bad Jim Crow itself was or (B) prohibiting discrimination was never justified under any circumstances. Jeffrey Miron, an economist at Harvard (who is, rather alarmingly, Director of Undergraduate Studies for his department), was unequivocal. His fellow panelists had “trotted out arguments about historical context and social norms to defend a position that seems antithetical to everything libertarians believe”:

… [L]ibertarians should not only oppose Title II [of the Civil Rights Act]; they should shout that opposition from the highest roof tops…Title II is a bald-faced assault on a principle that libertarians hold dear: that private property is private. This means libertarians should be incredibly suspicious of Title II and insist on an overwhelming case before violating this principle. No such case exists… If the law turns restaurants into “public accommodations”… then restaurants become places where the law can impose public health concerns and where customers have “rights,” other than just choosing not to frequent the restaurants they do not like… Similar considerations apply to occupational health and safety regulation. So long as any workplace is the private property of the owner, it is difficult to defend rules about safety equipment, hours of work, and so on. These are concerns only for employers and their employees. Once workplaces are somehow “public,” the door is open for the state to pursue various goals that libertarians find objectionable. Mandatory maternity leave is a good example.

As you can see, Miron’s problem with civil rights legislation was that it opened the door for other horrors like workplace safety and public health rules, regulations on how many hours one can make employees work, and mandatory maternity leave. Thus the freedom of private owners to racially discriminate must be fought for at all costs. 

Of course, all these libertarians insist that they are not racists, that they are simply committed to the principle of limited government, and that the views of Ron Paul are a bizarre aberration. But when we think about what the application of their “principle of limited government” means, it should become immediately obvious why it’s so wrong and, yes, racist. First, their view sees the rights issue entirely from the perspective of the property-owner. The right to discriminate is being discussed, but there is no discussion of the right of the Black patron not to be discriminated against. To libertarians, the right to equal participation in social activities and equal ability to go to hotels, swimming pools, restaurants, simply does not exist. A Black person has no right whatsoever to be served at a restaurant, or to be given equal consideration for employment. The person whose rights matter in the situation is the owner or boss.

Let us be clear about what this means. It means that we could have a private racial caste system, in which all wealth was concentrated among one racial caste, and the other caste was denied access to jobs, housing, schools, restaurants, explicitly on the basis of their race, and nobody’s “freedom” would have been violated, so long as government wasn’t mandating the discrimination. Stores could post “No Black Applicants” signs in the window, landlords could say in ads that they would not rent to Black people, and while libertarians would of course insist that they lament the situation because racism is wrong, they would say that any attempt to prevent the situation by law is an unjust interference with the employer or landlord’s “freedom of association.” To require a lunch counter to serve every customer regardless of race, or to require a manager to give Black employees equal consideration for promotions, is coercion.

But let us note what is not coercion in the libertarian world view. Libertarians are correct that restrictions on private discrimination are enforced by the government. They see this as an encroachment on liberty. But private property rights are also enforced by the government, and often with much more brutality. The right to exclude someone from your restaurant is the right to call on the government to come and use force against that person. That’s what having a private property right means: having the government back up your claim over a particular thing. “Private” discriminators are therefore not in fact calling for freedom from government, they are calling for the government to help them carry out discrimination by lending them a taxpayer-funded army of cops. 

So, in the libertarian framework of Friedman, Rand, et al., it is not coercive for a restaurateur to call in a dangerous armed gang (the police) to drag away every potential Black customer. It is, however, coercive if the government says that a condition of entering the marketplace (and having the government be willing to step in and enforce your private property rights) is a commitment to nondiscrimination. They pretend that all they want is freedom from the state’s meddling, but actually they just want the state to defend those who have property (much of which may have been accumulated illegitimately through conquest and terror, though apparently this has no effect on the legitimacy of property rights).

You might wonder why people like Rand and Rothbard were so paranoid about what seems like a fairly trivial imposition on people’s property rights. Laws against employment discrimination, after all, just mean that candidates have to be considered on merit rather than race. What’s the problem? But there’s a good reason that libertarians are virtual absolutists on a person’s ability to do what they want with their property: Miron is not wrong that when exceptions start to be drawn, we may fall down a very slippery slope.

There is a fascinating moment in a 2018 debate between free-market libertarian Bryan Caplan and Christian socialist Elizabeth Bruenig. At one point, Caplan is challenged on what the limits to private property rights are: are there any circumstances in which private property rights could be overridden by other interests? Caplan says that of course there are. For instance, he says, if it was necessary to take a baseball that belonged to him in order to avoid destroying the universe, then taking the baseball would be justified, even if it impinged on his property rights. Bruenig replied by asking a simple but devastating question: “Why?” Why would it be justified to take the baseball to avoid destroying the universe? For a normal human being, the answer would be obvious: because the universe is trillions of times more important than one human being’s right to a baseball. But Caplan was a libertarian, and so he hemmed and hawed until the moderator stepped in and the discussion moved on. 

Caplan is an intelligent person, and so he knew why he couldn’t offer the normal-person answer to the question. If he had said “because the universe is important,” he would have walked into a trap Bruenig had set for him. Having gotten him to admit that there are circumstances in which one person’s property rights are trumped by other competing social values, she would have asked him which values outweigh or override private property rights, and posed a number of hypotheticals, such as: if a vaccine could save hundreds of millions of lives, but the person who holds the patent refuses to let anyone produce the vaccine, is it justified to override their private property right in the name of saving lives? The libertarian gets uncomfortable here, because they do not want to admit that protecting the property rights of the wealthy is a higher value than saving millions of lives. The moment we start to “weigh” property rights against other rights (like the right to housing, the right to life, the right to healthcare), property rights (at least for those with plenty of property to spare) begin to look like some of the least-important rights. Thus libertarians try to present property rights as something close to “inviolable,” so that we do not start measuring the harm that comes from intruding on property rights versus the good that comes from it. If we do engage in this kind of measuring exercise, the right of a hotelier to tell Black people they need to go and stay somewhere else seems worthless compared to the right of a Black person to not have to cruise town looking for a hotel that will accommodate them.

Here we should admit a little secret about rights: they’re made up. Rights are expressive of our values, but different people have different values and it is impossible to prove that rights exist. It is possible to have a historical argument over which entitlements have been seen as rights by previous generations. But unless you believe in Natural Law or The Creator, and have a universally agreed-upon source for what constitutes Natural Law or The Creator’s opinions, it is very difficult to demonstrate that you have a right. You could appeal to the Constitution, of course, but plenty of important rights (such as the right to equal protection of the laws) weren’t in the Constitution originally and had to be put there by people who thought that there needed to be new rights added. The Universal Declaration of Human Rights includes a bunch of rights, but they are essentially just a list of things that the UDHR framers believed that people ought to be entitled to. That’s all a right really is: a thing that you, and whoever shares your views, believe people ought to be entitled to and that governments should strive to guarantee.

I think that’s okay, but it does mean that the choice between “the right to discriminate” and “the right not to be discriminated against” is a matter of what your values are. Personally, I could not give a crap about the right of a business-owner to racially discriminate. I don’t think that right exists. I don’t believe in it, I don’t see where it comes from. I believe in a limited right to property accumulation but think that above a certain threshold (the point needed to live comfortably) other social values almost entirely outweigh the right to additional accumulation. Of course, I can’t refute the libertarian view, just as they can’t refute me, because it is a matter of us valuing different things. But the reason I think that their view is racist is that they think it is far more important to protect the freedom of discriminators than it is to guarantee members of oppressed groups the freedom to enjoy access to the same things as everyone else. And their rights framework is consistent with a society in which there is a vicious caste system enforced by coercion. 

Not only that, but because libertarians believe in privatizing as much of the government as possible, their insistence that they believe in mandatory non-discrimination within the realm of government rings hollow. If you believe that public schools should not be able to pick students by race, but also simultaneously believe that public schools should be abolished and replaced with private schools that should be allowed to pick students by race, you believe in expanding the domain in which racial discrimination is permissible. This is not a theoretical consideration, but a very, very real one. The Southern response to the desegregation of public schools was to establish private “segregation academies,” which could discriminate because they were not part of the government. The only reason these schools can no longer explicitly discriminate (though they still do) is because of government action to abridge their “freedom of association.” It was (correctly) reasoned that the freedom of private schools to establish a two-tiered racially-hierarchical education system was not a compelling value, while the freedom of Black students to have equal access to schools was compelling. (Many libertarians, including Friedman in Capitalism and Freedom, insist that in the absence of laws requiring segregation, the market will punish discriminators and thus make racism wither away. This position demonstrates an extreme ignorance of how racism operated in the North, where segregation was not “de jure” but rather “de facto”—or rather “de market,” enforced by private agreements backed by the law rather than by explicitly discriminatory law. The “We Want White Tenants” sign accompanying this article is from Detroit.)

A segregation academy offering a “market solution” for white parents to the problem of forced integration (1970) 

The 1964 Civil Rights Act was a formidable accomplishment, built on an unbelievable amount of bravery and commitment by civil rights activists like Lewis. The Jim Crow South was a place where Black people could be beaten to death for looking at a white person the wrong way. To challenge this terror-based caste system involved Black people risking not only their lives but the lives of their families and friends. The prohibition of racial discrimination is one of the great political achievements of the 20th century, and it is sad that there is still an active political tendency debating whether basic civil rights were legitimate. Because those who oppose freedom present themselves as defenders of it, however, it is important to understand exactly why their arguments are so perverse and wrong. 

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