Wow, a Nominee With a Paper Trail to Debate!

Julian Sanchez | October 31, 2005

I haven't got a verdict one way or another on Alito yet, but ThinkProgress' roundup of "facts" about the nominee's views is less than impressive. (Addendum: I see the Center for American Progress is pushing the same list.) Let's consider some of their claims.

ALITO WOULD OVERTURN ROE V. WADE In his dissenting opinion in Planned Parenthood v. Casey, Alito concurred with the majority in supporting the restrictive abortion-related measures passed by the Pennsylvania legislature in the late 1980's. Alito went further, however, saying the majority was wrong to strike down a requirement that women notify their spouses before having an abortion. The Supreme Court later rejected Alito's view, voting to reaffirm Roe v. Wade.

As blogger Patterico explains in some detail, it's awfully hard to justify that initial claim on the basis of Alito's dissent in the case they're talking about. His opinion seemed to be that there were enough exceptions (e.g. the spouse isn't the child's father; the woman worries the spouse will become violent) that a spousal-notification requirement for abortion—whether or not it's a good idea—didn't constitute an unconstitutional undue burden on the right. Now, I have no idea whether Alito wants to overturn Roe, but it seems an awful stretch to conclude that he would on the basis of that opinion. Next...

ALITO WOULD ALLOW RACE-BASED DISCRIMINATION: Alito dissented from a decision in favor of a Marriott Hotel manager who said she had been discriminated against on the basis of race. The majority explained that Alito would have protected racist employers by "immuniz[ing] an employer from the reach of Title VII if the employer's belief that it had selected the 'best' candidate was the result of conscious racial bias."

That's what the majority "explained," but it's sure not the impression you get reading the opinion. Basically, it looks like a court had to decide, inter alia, whether a hotel had failed to promote the plaintiff becaue of racial prejudice. And Alito's argument is that you might think the hotel's stated reasons for promoting someone else are weak, but that this isn't enough to show they were pretextual. I don't know enough about the fact pattern in the particular case to take sides in the instance, but again, the claim that Alito wants to "allow race based discrimination" seems a far cry from what I'm seeing in that dissent. (Requisite libertarian disclaimer: If some employer decides it doesn't want to hire people named Sanchez, I think it ought to be able to legally—though I'd hope for it to be swiftly punished by public opinion. All I'm arguing in this post is what it's reasonable to infer from Alito's opinions, not what's good policy.)

ALITO WOULD ALLOW DISABILITY-BASED DISCRIMINATION: In Nathanson v. Medical College of Pennsylvania, the majority said the standard for proving disability-based discrimination articulated in Alito's dissent was so restrictive that "few if any...cases would survive summary judgment."

I can't even find the opinion online in this case, but again, all we get here is a short excerpt of how the majority chose to characterize Alito's dissent. From what I can see, the case involved a question of whether a disabled medical student had provided her school with adequate advance notification of the kinds of accomodation her disability would require in the classroom. Again, it's hard to say more without seeing the opinions, but I can imagine quite a range of disagreements over what counts as adequate notification that fall short of constituting a disagreement over whether the law should "allow disability-based discrimination."

ALITO WOULD STRIKE DOWN THE FAMILY AND MEDICAL LEAVE ACT: The Family and Medical Leave Act (FMLA) "guarantees most workers up to 12 weeks of unpaid leave to care for a loved one." The 2003 Supreme Court ruling upholding FMLA [Nevada v. Hibbs, 2003] essentially reversed a 2000 decision by Alito which found that Congress exceeded its power in passing the law.

I was faintly hoping the case to which they refer might be a Commerce Clause decision in the Lopez vein—but sadly, no. It's an Eleventh Amendment sovereign immunity case, and has very little to do with the propriety of FMLA per se. So again, this is something of a red herring: Alito's views of Congressional power under the Fourteenth Amendment to abrogate state immunity under the Eleventh are apparently such that he would have held FMLA inapplicable to the states. I don't think I'd hold it against him if it were true that Alito "would strike down the Family and Medical Leave Act," but the opinion doesn't seem to support the claim.

ALITO SUPPORTS UNAUTHORIZED STRIP SEARCHES: In Doe v. Groody, Alito agued that police officers had not violated constitutional rights when they strip searched a mother and her ten-year-old daughter while carrying out a search warrant that authorized only the search of a man and his home.

Getting warmer, but looking over the opinion, it's not quite as bad as they're making it sound here either. The disagreement here isn't over whether carrying out unauthorized strips searches as such violates the Fourth Amendment—if a judge thought that were permitted, it would surely be a dealbreaker. Instead, the opinions reveal a dispute over whether the officers had a good-faith belief that their request to search all occupants at the premises had been incorporated into the warrant. On the basis of my skim, I'm inclined to prefer the majority's take, but Alito's dissent isn't as awful or crazy as the precis above would suggest. Finally:

ALITO HOSTILE TOWARD IMMIGRANTS: In two cases involving the deportation of immigrants, the majority twice noted Alito's disregard of settled law. In Dia v. Ashcroft, the majority opinion states that Alito's dissent "guts the statutory standard" and "ignores our precedent." In Ki Se Lee v. Ashcroft, the majority stated Alito's opinion contradicted "well-recognized rules of statutory construction."

Having found the Dia decision, I'm not all that surprised, in light of the pattern we've seen above, that the "hostile toward immigrants" claim seems, again, like a huge reach. Alito authored a partial-dissent there taking issue with the standard for evaluating a lower-level immigration judge's determination of an asylum petitioner's credibility. I can guarantee I'm out of my depth in evaluating this one on the substantive merits, but again, the bolded claim seems, at the very least, like an extraordinarily loose inference.

Addendum: Kos is recycling the same talking points, with some equally misleading commentary. Apparently, the FMLA decision tells us that "For Alito, workers shouldn't be able to take 12 weeks of unpaid leave to take care of newborns or loved ones." And the Doe v. Groody opinion reveals Alito's view that "Not only is [sic] strip searches of 10-year-old girls okay, but of wives as well since they are all merely that man's chattel." In a lot of ways, the first complaint is parallel to the silly "why do you hate America?" rhetoric folks at Daily Kos rightly chafe at. You think the Fourth Amendment proscribes certain anti-terror measures? You must be pro-terrorist! You think the Eleventh Amendment bars applying FMLA to states? You must be anti-people-taking-care-of-sick-relatives! The thing about wives as chattel is too ludicrously disconnected from anything in the decision—which, again, I'm inclined to disagree with—to take seriously.

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M1EK|10.31.05 @ 12:36PM|#

"(Requisite libertarian disclaimer: If some employer decides it doesn't want to hire people named Sanchez, I think it ought to be able to legally�though I'd hope for it to be swiftly punished by public opinion.)"

It's damn easy for people to say this TODAY, especially if they don't happen to be black, which is the one group which I still see apparent discrimination against. (at least where I live, Hispanics are doing about as well as merit would otherwise suggest).

This kind of reminds me of a thread I participated in, to my later chagrin, with a smug 20-year-old Asian guy who asserted that black folks should have just sucked it up and endured segregation for a while longer (i.e., the civil rights movement was needlessly provocative). I asked the FSM to apply his noodly appendage and send the smug jackass back in time to the 1800s on a railroad construction gang somewhere and see if he was willing to wait his whole life for somebody to grant him civil rights, but for some reason He refused my request.

|10.31.05 @ 12:40PM|#

"though I'd hope for it to be swiftly punished by public opinion"

That's a wishful thinking and putting the cart before the horse. How do racist judges get to be appointed? People opined that it's ok to elect a president who thinks it's ok to appoint a racist judge.

Mike Kole|10.31.05 @ 12:40PM|#

Yeah- you have to watch out for guys named Sanchez.

I'll be looking for Alito's position on eminent domain and property rights related items.

M1EK|10.31.05 @ 12:40PM|#

Oh, and before I get jumped on, yes, I understand the difference between government-sanctioned segregation and the choice of private businesses to do the same. I also think that pragmatism compels us to occasionally intervene in private business affairs in situations like this if we want to have a stable orderly society where people don't lose hope and just start burning shit down.

|10.31.05 @ 12:50PM|#

Julian,

Good chapter and verse on the "highlights" of Alito's record.

For me, the jury's still out and I, too, have a great deal to read and ponder before coming to my own conlusion.

But the facts are he came down on the side of a number of issues that drop him into the "scary conservative" side of the equation. If it walks like a duck...

One thing's for sure...this is going to be a fun ride for the next few months.

|10.31.05 @ 12:51PM|#

Didn't know anything about Alito before today, but what I've seen has been undiscouraging. But I think libertarians and conservatives have to be careful of embracing Alito's Attack of the Clones just because it's better than Miers' Phantom Menace...

MP|10.31.05 @ 12:59PM|#

I don't understand how some of these activist web sites expect to be taken seriously. A prior record may hint at where a person leans, but it is not an accurate predictor of where they'll fall on a future case. For these sites to make such bold claims completely undermines their legitimacy.

|10.31.05 @ 12:59PM|#

crimethink,

He's been a movement conservative poster-child for a while now.

|10.31.05 @ 1:12PM|#

|10.31.05 @ 1:13PM|#

"They," not "the." Geez, and I'm trying to get a job as a copy editor...

|10.31.05 @ 1:15PM|#

Alito worked for Ed Meese. That's two strikes against him in my book.

|10.31.05 @ 1:26PM|#

Alito may not be libertarian-friendly, but you can't tell a thing from the list. A Republican with paper-trail is nominated, it's pretty much a given that leftists will paint him as the reincarnation of Hitler. What else is new? We need our own analysis.

|10.31.05 @ 1:30PM|#

JD,

Yes, you echo my thoughts in the previous Alito thread. Depending on the Center for American Progress (or whoever) for such analyses is going to get skew things in such a way that we might view the individual in question more positively than we should.

|10.31.05 @ 1:36PM|#

I would exclusively patronize any and all hotels that refused to hire anyone named Sanchez. I would also encourage my racist friends (of whom there are more than enough) to support them.

Take that, public opinion!

|10.31.05 @ 1:43PM|#

"Requisite libertarian disclaimer: If some employer decides it doesn't want to hire people named Sanchez, I think it ought to be able to legally?though I'd hope for it to be swiftly punished by public opinion."

Do keep telling us, apartheid is ok, slavery is cool, segregation is natural. After all, its libertarian, so how can it be wrong? If it was, it would have caused bankruptcy, or even national economic decline.

I can't believe how much I have to restrain from swearing. How thick does one have to be, to not learn even from recent history. Discrimination is against MINORITIES and the POWERLESS, and costs the MAJORITY and the POWERFUL nothing, if anything, it gives them an economic advantage.

Larry A|10.31.05 @ 1:45PM|#

While I, like others, need a better look at Alito before I form an opinion, I can unequivacally say I'm darn glad none of the people writing these articles are sitting on the Court.

|10.31.05 @ 1:47PM|#

It doesn't matter what you clowns think. There are only about 100 libertarians in the world, and unfortunately each and every one has a blog. Your opinions are irrelevant. Put down the bong, return the porn to the video store, and move out of your parents' basements.

|10.31.05 @ 1:49PM|#

|10.31.05 @ 1:51PM|#

Whether or not Alito is confirmed will depend on how the Dems attack. Will they initiate a discussion with the public on a broad range of issues where Alito could be seen as too strict or antiquated in his views? Or will the just grill him about abortion?

The Dems are already all over NPR saying that they guy is a cross between Pat Robertson, Hitler (of course) and Bull Conner who would send the court "dangerously right" yada yada yada. Since this guy has a record it would be nice to have a real public debate over Consititutional Law issues. Fat chance.

I guess if he would over turn Roe vs Wade, that would be good. To the best of my understanding hat one was bad law anyways, abortion is a state issue, not a federal one.

People For the American Way opposes this guy, that is cool too. Them opposing someone is close to an endorsement from me.

I'd like to know where this guy stands on the 2nd Ammendment, where he stands on the commerce clause, where he stands on campaign finance reform or the 1st Ammendment, I'd like to know more about the guy. But then I guess we all would.

|10.31.05 @ 1:54PM|#

1skeptic,

Do keep telling us, apartheid is ok...

Apartheid was a state-enforced system of seperation and discrimination.

...slavery is cool...

As a legal institution it couldn't have existed without the state to enforce it, and these days slavery is practiced by people who must use coercion to make individuals their slaves.

...segregation is natural.

Yes, groups of people do segregate themselves and their is nothing we can do about that. (This statement assumes that you are not referring to the government-mandated system of segregation in the Jim Crow South or much of the rest of the U.S.).

|10.31.05 @ 2:00PM|#

Do keep telling us, apartheid is ok, slavery is cool, segregation is natural.

Funny, no one here said any of that. Funnier, all of those things were the work of governments.

Sad that someone using "skeptic" in a name would show no command of logic.

|10.31.05 @ 2:07PM|#

Do keep telling us, apartheid is ok, slavery is cool, segregation is natural. After all, its libertarian, so how can it be wrong? If it was, it would have caused bankruptcy, or even national economic decline.

Just because I oppose the state doing something does not mean that I oppose that thing being done.

|10.31.05 @ 2:10PM|#

Reading further on Think Progress, I keep expecting to see:

Alito hostile to Mom, apple pie

Alito sympathetic to eating kittens

Alito against all that is good and just

|10.31.05 @ 2:13PM|#

Well, it looks like Alito's nomination has the gun-grabbers all up in arms.

Which, despite the creepy stuff coming from the Religious Right, makes me smile.

Evidently, and this is a good sign for fans of interstate commerce as well, he dissented in US v. Rybar by stating that the federal government has no jurisdiction to regulate or ban possession of machineguns, that it is the sort of thing that each state should decide for itself.

Make of that what you will.

|10.31.05 @ 2:15PM|#

Strip-searching a ten-year-old girl based on a search warrant for the house she lives in? Well, I'm sure glad I've got libertarians to look out for my personal freedoms these days.

|10.31.05 @ 2:17PM|#

I guess if he would over turn Roe vs Wade, that would be good.

I'd like to know where this guy stands on the 2nd Ammendment

kwais,

I can't remember where I read this, but Alito believes all unborn fetuses should be armed. That may or may not address both of your concerns.

dhex|10.31.05 @ 2:17PM|#

AK is demonstrating a common problem with libertarian debating tactics through a sort of archetypal trickster methodology.

think of it as the mirror side to people flipping out about "why don't we regulate EVERYTHING you statist whore?"when someone says "hey, you know what, wal-mart's practices are sucky" or "the pharmaceutical industry seems somewhat unethical to me, and may be run by lizards in human form."

|10.31.05 @ 2:23PM|#

And if a private organization wants to discriminate against shapeshifting reptoids, dhex, that is their right. But the government mustn't, and that's why the reptoid community has taken such an interest in covertly repla-, er, lobbying government officials.

|10.31.05 @ 2:33PM|#

Why does anyone have a "right" to discriminate? What is the official libertarian view on this? Do corporate rights to hire based on hidden criteria trump the rights of individuals to find a job for which they are the most qualified? Does it take a lawsuit to rectify this? I think state-sponsored programs like affirmative action cause more harm than good, but that doesn't mean I believe people have to take this kind of crap from some smug asshole still living in the 1950's.

MP|10.31.05 @ 2:38PM|#

Why does anyone have a "right" to discriminate?

It's called Freedom of Association.

However, it is incorrect to assume that because one supports the Freedom of Association, therefore they oppose the civil rights legislation of the 50's/60's.

|10.31.05 @ 2:39PM|#

Why does anyone have a "right" to discriminate?

Because everyone has a right to choose who they interact with, associate with, and do business with.

I don't have a right to a job working as a programmer, and my employer doesn't have a right to have me work for them as a programmer. I and my employer have the right to make an agreement so that I work for them as a programmer. If I don't want to work for them, or they don't want me to work for them, it's over. I can't refuse to be fired or assert that I am hired in the first place, and they can't tell me my resignation has been dismissed or walk up and say, "Hey, bub, you work for us, now, so if you know what's good for you, you'll show up at our office at..."

|10.31.05 @ 2:48PM|#

However, it is incorrect to assume that because one supports the Freedom of Association, therefore they oppose the civil rights legislation of the 50's/60's

Fair enough, but please explain what seems on the surface like a contradictory statement. If companies are allowed to freely discriminate when choosing whom to hire, why have any relevant laws on the books? Aren't they rendered unenforceable?

|10.31.05 @ 2:51PM|#

"Do corporate rights to hire based on hidden criteria trump the rights of individuals to find a job for which they are the most qualified?"

That second right? It doesn't exist. You might as well have a Right to Have the Man Respect You for Who You Are And Not Get a Haircut.

|10.31.05 @ 2:54PM|#

SPD:

The libertarian argument is that the relevant laws should not be on the books because they violate freedom of association.

So much for meritocracy.

|10.31.05 @ 2:56PM|#

SPD,

I think the matter (fortunately or not) falls back on this: agent A is paying money for sevice X; agent A, however, does not want agent B to revceive A's money for X. Therefore, since A is in posession of the money (assuming that such posession is uncoerced), there is no intrinsic right of B to receive A's money for any reason whatsoever. A, in the context of a minimal or law-governed state, can choose to spend said money in whatever way is deemed necessary. The Public (P), however, can decide that A's actions are unacceptable and therefore refuse to give THEIR money to A's organization-- because the same rule applies: P has the same right to its money that A has to his/hers. To allow the state to expand past a minimal point not only potentially infringes on A's rights (about which we may not care), but also onto P's rights because the logic can be extended indefinitely without severe restrictions on said expansion.

It becomes more complicated when we realize that A may represent a public for profit organization (a corporation). But A's actions, since they are open to more criticism than from just P (i.e. the stockholders), are even more susceptible to criticism.

Or something like that.

MP|10.31.05 @ 2:58PM|#

The libertarian argument is that the relevant laws should not be on the books because they violate freedom of association.

Correct in general, but there are certain bits of civil rights legislation which had a moral necessity that tended to trump (for some) the absolutist position of Freedom of Association.

MP|10.31.05 @ 3:04PM|#

So much for meritocracy.

Meritocracy is a laudable moral code. So much so that citizens should mandate that this is what the goverment practices. But we should not have it forced on us by the goverment.

|10.31.05 @ 3:05PM|#

eric,

Well put. I'm curious to know, as Mr. Sanchez originally hoped in his post, how many times a company has actually changed its hiring or promotion policies simply because of public opinion, as in "I won't shop at/ invest in X because I know they don't promote women."

I don't/won't shop at Wal-Mart because I've read too much about how they treat their employees, suppliers and overseas laborers like shit. I think they stifle small business and flirt with monopoly whenever possible. But ultimately their bottom line says they don't have to change a damned thing.

I don't advocate government intervention in this case. But I think it's a fantasy to simply hope a company will change their ways if enough people say "Tsk, tsk." It's a philosophy of libertarianism with which I'm still struggling.

|10.31.05 @ 3:06PM|#

Guys, you have to keep in mind that a good judge doesn't just vote his opinion. It's not like going on Oprah and asking Dr. Phil what he thinks.

Judges often make decisions that are distasteful and/or morally questionable (even to themselves) because they have to in order to maintain the stability of the legal system. In short, maintaining a solid rule of law is more important than any one incident (like the strip search, possibly). Laws that are swiss-cheesed with exceptions do not provide much guidance or protection. And judges have to protect citizens and the state's powers as well in a perpetual balancing act.

Judges will also sometimes make decisions based on extremely arcane technical matters that are both extremely important and yet very, very tedious. To journalists-- well, let's just say that they lack the intellectual tools to grasp what is going on, legally. The population at large gets most of their legal knowledge from TV shows.

So basically what I'm saying is this--- a one paragraph description of the case and how he ruled proves virtually nothing about the quality of the opinion or the underlying rationale. It simply can't, particularly if it is designed for mass consumption. It's incredibly easy to misrepresent opinions, because they often hinge on ideas that the public hasn't even heard of, and the media is too lazy/stupid/biased to explain it.

In any case, the ideal judge is not someone who inserts his personal prejudices into the case. He takes the law as it is and uses that as the logical framework for his decisions. If that decision is stupid or immoral, it is the responsibility of the people or the legislature to get off their ass and fix it. Scalia, for one, is a judge who takes the supposed judicial standards for constitutional review seriously. This often leads to unpleasant results. Those standards, if taken seriously, result in damage to civil liberties. Which is hardly surprising, given the state of civil liberties until the last century. The Constitution was not designed to provide the extent of civil liberties we enjoy today. But with a living constitution take on things, you get a commerce clause that has been interpreted to mean, in effect, the exact opposite of the plain language of the clause. So both schools of thought lead to unpleasant results. I think it would be a good time now to rein in SCOTUS, because they are going a little too wild. Raich and Kelo, anyone? Thanks, yeah, thought so.

Which is not to say that I would like a court full of Scalia's--- but it would be a good idea to get a few more people who interpret the constitution narrowly. It should lead to less overreaching. I swear the court majority of the last decade has gotten to the point where it isn't even really trying to hide the fact it is essentially voting its preferences instead of the law. They pretty blatantly ignore the axioms of constitutional construction when it suits their purpose.

|10.31.05 @ 3:08PM|#

And, no doubt it may come as a surprise to some here, people will trade absolute economic gain for higher relative standing. That, combined with majority/minority standing and power relations is what makes discrimination work. Can't believe this needs explaining to anyone old enough to be on this blog.

You are correct. That is exactly how apartheid came about. Rather than allow free association between corporations and the workers they wanted to hire, white workers got laws passed which made it expensive or illegal to hire nonwhites into particular occupations.

You appear to be very astute. I'm sure that you'd recognize that the same thing goes on today in the United States. Instead of 'apartheid,' we now call it 'immigration law.'

|10.31.05 @ 3:10PM|#

If companies are allowed to freely discriminate when choosing whom to hire

They aren't.

Garth|10.31.05 @ 3:11PM|#

SPD, You seem to miss the point. When the government forces companies to hire people based on anything BUT merit then meritocracy is thrown out the window.

|10.31.05 @ 3:13PM|#

Well put. I'm curious to know, as Mr. Sanchez originally hoped in his post, how many times a company has actually changed its hiring or promotion policies simply because of public opinion, as in "I won't shop at/ invest in X because I know they don't promote women."

Public opinion seems rather powerful, but a side issue, really. The main issue in this case is "what idiot decides he doesn't want black people as his customers"?

I don't advocate government intervention in this case. But I think it's a fantasy to simply hope a company will change their ways if enough people say "Tsk, tsk."

If enough people actually change their buying habits, it's no fantasy.

|10.31.05 @ 3:19PM|#

Garth,

But doesn't freedom of association mean the employer can look past merit and hire whomever they feel the most comfortable around? That's what I was implying.

SPD,

Thanks. I see your point, but I think there is a real tendency among libertarians (and I include myself) to see allowing for all the unpleasantries of the minimal state (neo-nazi stores, for instance) as ultimately promoting an end to discrimination. Theoretically, this is because if profits are your main motivation, you are not logically going to care who contributes to those profits. Those who start businesses for reasons other than profit are not going to remain profitable for long so they'll go out of business. It is, in other words, the argument that if you start alienating potential customers the you'll have not customers eventually.

With places that allegedly "mistreat" their employees, I would fall back onto an historical argument: the standard of living for unskilled workers has increased without cease since the American industrial flowering. If they are not what we would want, they're a damn sight better than they were. This is primarily because of the market, and thus I see no reason why the market won't contribute to things getting even better. Naturally, of course, we cannot ever expect perfection.

M1EK|10.31.05 @ 3:20PM|#

|10.31.05 @ 3:24PM|#

Then why did the South have to have all those Jim Crow laws, M1EK?

Oh, yeah. To make companies disserve black people.

|10.31.05 @ 3:26PM|#

Public opinion seems rather powerful, but a side issue, really.

Indeed, losing the business of the marginally disgusted customer is not the only cost.

Limiting the pool of potential employees is also going to raise your payroll and decrease employee competence compared to your nondiscriminatory competitor. These are actual production costs.

That's why effective employment discrimination always includes a governmental mandate to make sure that your competitors suffer the same penalties for discrimination that you do.

|10.31.05 @ 3:27PM|#

Oy, I'm sorry I mentioned it.

|10.31.05 @ 3:29PM|#

It would have probably come up anyway, Julian.

|10.31.05 @ 3:33PM|#

SPD:

Speaking of Wal-Mart, there was a relevant article in Saturday's WaPo:

http://tinyurl.com/7fny3

They are taking action on the very causes you mention. They are doing so precisely because so many people have bitched about their business practices. No, they don't have to do a damn thing, but they are - because it is to their advantage to be seen as a responsible employer and a positive force in their communities.

Now, you can say that Wal-Mart came to this realization far too late. You can say that what they are proposing isn't good enough. And, they are also an extreme case - most companies aren't subject to that level of scrutiny. But the bottom line is that they ARE trying to buff up their image because public opinion matters.

|10.31.05 @ 3:44PM|#

stacy,

It would be a step in the right direction. But why did they wait until it got this far? They could have taken action a long time ago and avoided the public image crisis. Besides, it doesn't look as if they're trying to anything substantial

==========================
In the first three to 12 months, the company was told, it should find ways to convince the public that its wages and benefits are better than perceived, spread messages that it cares for employees, build local relationships, increase local philanthropy, and research the impact of stores on their communities. Next, the study calls on the company to create another initiative that benefits workers ("e.g. workplace education, child-care program"). Finally, the study says Wal-Mart should "take public leadership on broader societal issue."
==========================

Let's see if this goes beyond the "recommendation" stage. I'd prefer to wait and see if this all isn't just a bunch of public relations BS. It would be nice to see an independent group follow up to make sure Wal-Mart does what it promises to do. Until then, I'll continue to buy my 64-packs of Quaker Oatmeal elsewhere.

|10.31.05 @ 3:56PM|#

Oy, I'm sorry I mentioned it.

Ay carumba! If NYU refused admission to Sanchez?

It's not like you're a laborer so let's hit you where it hurts.

|10.31.05 @ 3:58PM|#

After reading these comments, I'm glad I don't consider myself a libertarian. They live in a Fantasy Land where people always act in their best economic interests rather than on their bigotry, bigotry never is an effective barrier to anyone attempting to advance in life, and clearly immoral behavior never hurts anyone else. I guess sweatshops, child labor abuses, and lynching were all just figments of our imagination.

|10.31.05 @ 3:59PM|#

When you link to the mental abyss, the mental abyss links back to you.

SPD:

You're diverting from the point of my diversion from the original post. You've staunchly claimed in this thread that public opinion has no relevance to powerful businesses, specifically Wal-Mart. However, the contents of that article clearly show that public opinion does matter.

Even if it just ends up being "public relations BS," it is still BS created by the power of public opnion.

I'm no advocate for Wal-Mart. I don't shop there, either. I walk to the local grocery store like a hippie. (Though I do have to give Wal-Mart credit for their efforts after Katrina - they mopped the floor with FEMA.)

But, at the same time, I can't read that WaPo article and say that public opinion is irrelevant to Wal-Mart and, by extension, business in general. Even if the changes are late, even if they are ultimately ineffective, Wal-Mart wouldn't even consider any changes if public opinion was as irrelevant as you stated earlier. It may not matter enough based on where one stands with Wal-Mart, but it does matter.

|10.31.05 @ 4:04PM|#

stacy,

BS may sell used cars, but I'll believe it when I see it. Until then, it's just pandering to the disgruntled masses. Make a lot of promises to shut people up -- or stop the lawsuits --, then one by one roll them back (like their prices).

|10.31.05 @ 4:08PM|#

SPD, you asked to know if corporations like Wal-Mart response to public opinion. That's been answered with a "yes".

|10.31.05 @ 4:09PM|#

Jim,

You shouldn't judge all libertarians based on the postings of crypto-Republicans. Real libertarians are pro-freedom not pro-corporation.

|10.31.05 @ 4:13PM|#

Well, I don't know if I'm a "laborer" but I am, you know, employed. So I think the parallel works fine. And it's "caramba." If you're going to be a prick, at least get the spelling right.

|10.31.05 @ 4:14PM|#

"The main issue in this case is "what idiot decides he doesn't want black people as his customers"?"

Did you take a history class in school?

Easy to say "no idiot would do it". However, plenty of idiots did.

It's not as if this has completely gone away either. Back when I was a commercial artist, I was asked by 3 different small business clients to remove the black people stock images from their advertising or business collateral. The 'models' in question we'ren't even the focus of the image, just one of a number of elements in the picture. I was appalled but I was also low injun on the totem pole working on a freelance basis and not really in the position to question any of their decisions. A couple of times we ended up using less appropriate pictures rather than use the one with blacks in it.

|10.31.05 @ 4:15PM|#

Re: Wal-mart. Whatever they claim their intentions to be on this minumum-wage schtick, their position will invariably squeeze the margins of its competitors more than its own. This is a business move many more times over than it is an altruistic move. Wal-mart doesn't just all of a sudden find Fair Wage God.

|10.31.05 @ 4:19PM|#

Which is the point of being a free-market booster. You don't have to rely on hoping that companies "come to Jesus". You can rely on their own greed.

|10.31.05 @ 4:27PM|#

Wow. Where did all these leftist posters with no concept of individual liberty come from? I thought this was supposed to be a libertarian site.

|10.31.05 @ 4:28PM|#

"AK is demonstrating a common problem with libertarian debating tactics through a sort of archetypal trickster methodology."

What does Carl Jung have to do with libertarian debating tactics?

|10.31.05 @ 4:35PM|#

I would just like to say that Julian did some good leg work and analysis in the 99% of the article that wasn't the aside about freedom of association and, er, Walmart or something.

The partisans are out to play. Kos has some not dumb people that post there, but they lose their minds whenever the other team wins. DeLong does the same thing. And Yglesias. The right does it too, but I honestly don't ever visit those sites. Of course, the most important charge to level based on partisan analysis is that the guy will be an 'ideologue' - presumably something Kos would never stoop to.

|10.31.05 @ 4:37PM|#

"The main issue in this case is "what idiot decides he doesn't want black people as his customers"?"

Did you take a history class in school?

Easy to say "no idiot would do it". However, plenty of idiots did.

Yes, some idiots did, and the market punished them. Others did not, because they feared the market's punishment.

Until the government punished them for failure to discriminate -- and forced them to do what was "politically correct" at that time.

I suggest you read this bit of history before you embarrass yourself further. :)

|10.31.05 @ 4:47PM|#

It's not as if this has completely gone away either. Back when I was a commercial artist, I was asked by 3 different small business clients to remove the black people stock images from their advertising or business collateral. The 'models' in question weren't even the focus of the image, just one of a number of elements in the picture. I was appalled but I was also low injun on the totem pole working on a freelance basis and not really in the position to question any of their decisions. A couple of times we ended up using less appropriate pictures rather than use the one with blacks in it.

As a counter-example, the graphic designers in the office next to mine, down the hall, and all around me are constantly prowling the stock-photo catalogs for photos of people who aren't white. "We need to show diversity in the photos" is a constant refrain. Why? Because we, and our clients, are always trying to show that the things we promote (for example, employee benefit programs) have something to appeal to all kinds of people, not just white males. We've even been know to use PhotoShop to alter photos in order to darken a skin tone or two.

There are all kinds of clients. But yours are dumb and stupid people who apparently can barely manage a small business, while ours are smart and successful and run Fortune 500 companies. :) Irrational discrimination generally gets spanked by the Invisible Hand.

Speaking of which, I'm going back to work now so I don't get hit.

|10.31.05 @ 4:48PM|#

Jim,

Here's my hackneyed, cliched, Friedman/Hayek inflected quote of the minute (that nonetheless happens to be true). You claim that libertarians live in a "fantasy world" that assumes that everyone is always going to act in their own "economic best interests" etc. etc. etc. Now, my response to you is that, following the comments of Eric the .5b (which confuses the hell out of me by the way) and just a general knowledge of history, we can see that bigotry is most prevalent in societies whose governments make a special attempt to promote such bigotry. The Jim Crow Laws are a great american example. There is also apartheid. There is also the racist and ethnocentric immigrations laws that used to be in effect in Canada (and still are to a certain degree). It seems logical to assume that countries make laws because of perceived threats to whatever order they wish to preserve. Ergo, it seems equally logical to assume that South Africa, the south, Canada, Serbia, whatever would not have made racist laws UNLESS THEIR RACIST AGENDAS WERE BEING THREATENED.

Then who was threatening these orders? Well, given that it was a whole contingency of factors, including immigrants, businesses, minorities, etc., we can say broadly speaking that it was the market that was in these cases subverting a corrupt moral order (because what else can we call a bunch of individuals negotiating for their own advantage with their social power but a "market?").

Thus, to end, it can be argued that the government promotes, in some cases, bigotry while the market undermines it. What I would say is that thinking that a government is always going to do the right thing in a given situation while a private individual will not is more utopian than libertarianism ever thought about being.

|10.31.05 @ 4:52PM|#

The strip search case was not the monster the critics made it out to be. Read both the majority and dissenting opinions. While the result of a kid getting strip searched is deplorable, Alito's reasoning in the dissent is solid.

The search warrant form did not have enough space (physically on the paper) to include the target of the search AND anyone else on the premises. However, the probable cause section on the face of the warrant included the request to search anyone on the premises by explicitly incorporating that request from the application for the warrant by reference.

Moreover, the same officers prepared the warrant and the application. The Judge signed off on it without modifying or restricting it.

Now, the majority also takes a reasonable position by refusing to expand the scope of a warrant based only on a reference to the application for the warrant. Reasonable minds can differ whether or not that was done in this case. I think the majority used a strained, formalistic interpretation to do so, while Alito used a common-sense reading (which is what precedents call for in this line of cases).

As much as I would prefer a justice who seeks to reign in government power, Alito basically was following precedent on this one.

Thus, you should not listen to any pundit or senator's characterization of his opinions without reading them yourself.

|10.31.05 @ 4:53PM|#

Stevo,

Thanks for the link. I read the article and it brought up a lot of things I never realized about the history of businesses and Jim Crow, which was on the opposite end of the pendulum from affirmative action.

I found this quote the most interesting:

People who decry the fact that businesses are in business "just to make money" seldom understand the implications of what they are saying. You make money by doing what other people want, not what you want.

The last sentence succinctly and beautifully addresses my skepticism about Wal-Mart's promises. If they follow through on what they promise, bravo for them and I'll give credit where it's due.

The first sentence in the quote above I found amusing, simply because of Milton Friedman's quote that the only responsibility a business has to society is to maximize its profits, and without the second sentence it would seem to contadict Friedman.

Larry A|10.31.05 @ 4:58PM|#

who would send the court "dangerously right" yada yada yada.

If I could draw a straight line I'd do a cartoon with Chicken Little standing in front of a Supreme Court building "moving dangerously right." From so far left that it was still approaching center.

|10.31.05 @ 5:02PM|#

eric mattingly:
Now, my response to you is that, following the comments of Eric the .5b (which confuses the hell out of me by the way)

I'd be happy to clarify anything I said that you found confusing.

M1EK|10.31.05 @ 5:08PM|#

"Yes, some idiots did, and the market punished them. Others did not, because they feared the market's punishment."

You live in a great fantasy world. Allow me to suggest that if you were magically transported to, say, Birmingham, and in the process became black, you might abandon some of this theory in favor of practice.

The fact that the market provided _some_ opportunities to Southern blacks does not mean that their lives didn't suck major ass due to the lack of _most_ such opportunities.

fyodor|10.31.05 @ 5:09PM|#

Stevo and SPD,

I agree that's an interesting piece Stevo linked to, and Thomas Sowell is an interesting guy.

But the information cited by Sowell would not likely be enough to counter the images statists have about the behavior of businesses in the Jim Crow South. The two examples that come to mind are white-only restaurants and (most disturbingly) hospitals.

M1EK|10.31.05 @ 5:12PM|#

Oh, and Stevo, linking a story from the Washington Times is not the best way to disprove the theory about libertarians really being Republicans who want to smoke pot.

That story sucked -- the first words that came to mind upon reading it were "lunch counters". Do you know why? Does the Washington Times have a link that answers it?

Actually, come to think of it, that shitty piece of apologist trash DOES have something in common with some frequent 'libertarian' tactics here - a desperate attempt to force the square peg of history into the round peg ideology being pushed. In this case, the author started with the goal of claiming that big government causes racism - and had to ignore Woolworth's to do it.

|10.31.05 @ 5:13PM|#

I'll just stand here and admire M1EK's vigor in dodging anything actually said so he can count coup on the libertarian-in-his-head.

|10.31.05 @ 5:14PM|#

"The first sentence in the quote above I found amusing, simply because of Milton Friedman's quote that the only responsibility a business has to society is to maximize its profits, and without the second sentence it would seem to contadict Friedman."

Er, the point of that comment is that the second piece is inherent in the first, and many people don't realize that is the case.

The fact that the market provided _some_ opportunities to Southern blacks does not mean that their lives didn't suck major ass due to the lack of _most_ such opportunities.

Right, it certainly did suck, largely because the government screwed around with the liberalizing forces of the market.

You live in a great fantasy world.

Yes, you have no fucking idea. But we'll keep my sex life out of this.

|10.31.05 @ 5:15PM|#

Big Government doesn't cause racism. Big government institutionalizes racism.

M1EK|10.31.05 @ 5:15PM|#

"Right, it certainly did suck, largely because the government screwed around with the liberalizing forces of the market."

Woolworth's.

M1EK|10.31.05 @ 5:16PM|#

I'll just sit here and wish this site had a killfile, so I could silence the annoying buzzing coming from Eric the .5b.

|10.31.05 @ 5:18PM|#

M1EK's new mantra: Woolworth's.

Woolworth's would be the proof of the point people here have made - companies that wanted to discriminate benefited from laws that required their competitors to discriminate. Without those laws, they'd find that policy a liability.

|10.31.05 @ 5:19PM|#

Woolworth's is not the entire market.

Left to itself, I'm sure today the unbending executives of Woolworth's would be wealthy beyond dreams, catering exclusively to the wallets of Klansmen.

Speaking of the market, it truly does call to me now. Forgive me. But I leave you in capable hands.

|10.31.05 @ 5:21PM|#

Well, M1EK, if you have an aversion to people disagreeing with your insults, vacuous claims - sorry, ideas, you could find a more sympathetic audience.

M1EK|10.31.05 @ 5:23PM|#

I see that Stevo's already been spanked on this very topic before:

http://www.reason.com/hitandrun/2005/08/hawaiiansonly_p.shtml

It's pretty damn easy for you to sit there and say that blacks should have waited for the market to solve the problem. Even if it would, eventually, are you going to wait decades? If your kid wasn't allowed to go to all instances of (business type X) in your town, would YOU tell them to wait, and that THEIR kids would probably be allowed in a few of them?

|10.31.05 @ 5:28PM|#

M1EK,

The fact that the market provided _some_ opportunities to Southern blacks does not mean that their lives didn't suck major ass due to the lack of _most_ such opportunities.

Which simply begs the question. Was the actual working of the market to blame for this sorry state (be it in Birmingham or Boston or Portland, Or.)? Or was it merely the case that through the trapping of government that those who could wield political power did so to the detriment of some groups?

Stevo Darkly,

...catering exclusively to the wallets of Klansmen.

Then they would have gone broke. Your average klansman (in the 1950s - compared to the 1920s) wasn't exactly wealthy.

|10.31.05 @ 5:30PM|#

M1EK,

It's pretty damn easy for you to sit there and say that blacks should have waited for the market to solve the problem.

No one has claimed that it would have. The problem was inherently a political/governmental because it was the government which enforced and enacted the various de jure segregation codes.

|10.31.05 @ 5:32PM|#

M1EK,

BTW, this is a primary example of government at work - de jure racial segregation enforced via violence and other acts of coercion. Heh.

fyodor|10.31.05 @ 5:33PM|#

Woolworth's would be the proof of the point people here have made - companies that wanted to discriminate benefited from laws that required their competitors to discriminate.

eric the .5b,

What laws required Woolworth's competitors to discriminate?

|10.31.05 @ 5:34PM|#

M1EK,

More to the point, markets can corrode such evils, as they did with the Montgomery Bus Boycott, but it takes actual political action to erase such laws from the books.

|10.31.05 @ 5:36PM|#

fyodor,

State laws primarily against "race mixing" and the like. Though most folks think of them as a Southern phenomenon, they were common throughout the U.S. prior to WWII.

Hak,

The Jim Crow laws would have certainly allowed businesses owned by racists to use them as cover. "Hey, what can we do about it? The government told us we can't serve you here!"

Racists = alcoholics; U.S. government = enablers

|10.31.05 @ 5:38PM|#

fyodor,

Of course, more to the point, many of these laws reflected socio-cultural attitudes at the time, on both sides of the fence. Of course, its the enactment of such laws, which attack the liberty of the individual, which are libertarians are concerned with. M1EK the liberal goes off on a rant about markets, when he should be ranting about his perferred means to solve any problem - government.

|10.31.05 @ 5:39PM|#

It's pretty damn easy for you to sit there and say that blacks should have waited for the market to solve the problem.

No, it's easy to point out that laws were the cause of the problem. But I guess you're going to stop your "I'll call myself a libertarian this week" business, so there's an upside to your ramblings.

|10.31.05 @ 5:40PM|#

If you're going to be a prick, at least get the spelling right.

I thought you'd...mellowed...a bit these last few years but I guess not.

|10.31.05 @ 5:41PM|#

SPD,

Sure. There were and are plenty of Lester Maddox's in this world, but they never made up a majority of people in the U.S. or even the Jim Crow South. This is evidenced by the fact that the KKK and other groups had as part of their agenda strenuous efforts to enforce Jim Crow segregation and attacked white shop owners, etc. and the like who violated them. Kicking the crap out of the odd shop owner in the 1920s kept the rest in line.

|10.31.05 @ 5:45PM|#

If anyone thinks that free markets, etc. caused segregation in the U.S., then they are simply unaware of the strenuous efforts of redeemer state governments to put a legal dike up against the expanding fortunes of freedmen in the U.S. in 1860s-1880s. I'd give M1EK a mini-bibliography on the matter but I doubt he'd read it.

|10.31.05 @ 5:46PM|#

eric m,

".5 B" references the old Monty Python tune "Eric the Half-A-Bee," which was John Cleese's ode to his... um, slightly incomplete pet.

I think that the area which deserves actual focus is in what aspects will certain doctrine be applied.

I would favor a libertarian society; I think most people who read Reason would. The great grey area for me, at least, is what is the result if we have laws that are libertarian in nature regarding, say, employment practices, while at the same time having laws that are progressive, or socially conservative, regarding say, church/state issues? That is a question that needs answering, I feel.

To my mind, the flaw in arguments such as Julian's regarding the rights of Mariott or other corporations to discriminate if they so choose, is that the Federal, State, and Local governments cannot discriminate, and then we have a significant legal quagmire. Can public funds be spent on services from companies that discriminate, when the Government itself is forbidden to do so? What serves the public interest better if the choice is between goods or services from a company that discriminates but would charge less, or a company with equal opportunity that charges more?

Finally, while I agree that ideally, a company that discriminates would be punished in the market, the truth is that today, such information is easy to conceal from the public. Many companies own media companies as well; News Corp or GE can easily affect the coverage their companies get. But beyond that, 25% of television is advertising, and more than that in print media. Wal Mart can do a much more effective job of getting their message out than their critics. For example, few people that I know are aware that Wal Mart is the defendent in the largest gender-discrimination class action suit in history. While I am not desirous of government regulation, I fail to see how any other model of restraint on practices such as discrimination can be effective in the modern environment.

|10.31.05 @ 5:52PM|#

SOME examples of laws -- restaurants, lunch counters, hospitals.

Here.

Ooops, the way I said that made me look like an undergraduate jackass. I was trying to rib you a little on your name (the whole .5 B thing is cool, I just don't know what it means) while appropriating your entire argument into mine. See, I was just trying to cover my disingenuity with humor, and yet again failed.

Nah, you're cool. I thought it might possibly be that, but was too slack to just throw in an "or if you just mean my name, it's a reference to 'Eric the Half-a-Bee' by the Monty Python boys". And, well, honest enough to know I'm not an infallible communicator, so I could have said something as clear as mud. :)

|10.31.05 @ 5:53PM|#

James,

Re: the class-action suit - I am very much in favor of wrongs being addressed in court, and Wal-Mart or any other corporation that is proven to discriminate, pollute, hide the dangerous effects of its products deserves to have the collective asses nailed to the wall.

When the federal government gets involved on either side, whether through laws like Jim Crow or affirmative action or tort reform, the so-called reforms they attempt to implement can often have a less-than-desired effect and can often backfire, IMHO.

|10.31.05 @ 5:56PM|#

M1EK,

Would a black person rather live in the segregated South, or, say, Western Europe?

In both of those situations, the govt interferes with the market vis-a-vis discrimination, though in opposite ways, so it hardly proves that govt interference is necessary. Also, from what I've heard, having the wrong skin color in W Europe ain't so easy either.

M1EK|10.31.05 @ 5:56PM|#

"When the federal government gets involved on either side, whether through laws like Jim Crow or affirmative action or tort reform, the so-called reforms they attempt to implement can often have a less-than-desired effect and can often backfire, IMHO."

This position, if extended, leads to anarchy - why, in other words, can we trust the federal government to get involved with laws against murder? Surely the free market would solve this problem better than the incompetent statists!

fyodor|10.31.05 @ 5:57PM|#

M1EK,

So much has changed throughout the entire world since the days of Jim Crow that your comparison between the southern US of decades ago and the Western Europe of today is hardly cogent. How about comparing the southern US of the first half of this century with many parts of Western Europe at the same time?

|10.31.05 @ 5:57PM|#

So don't extend the position.

|10.31.05 @ 5:58PM|#

"the author started with the goal of claiming that big government causes racism"

Woodrow Wilson.
FDR.
Truman.
LBJ.

They loved them some big government.

They were also all heinous, heinous racists. (Truman a little less so. A little. Wilson, of course, was the absolute worst of the bunch with the possible exception of Jackson. Anyone calling themselves a liberal who doesn't know that, should).

A switch from Jim Crow to big-government paternalism: out of the frying pan, into the trash.

M1EK|10.31.05 @ 5:59PM|#

"How about comparing the southern US of the first half of this century with many parts of Western Europe at the same time?"

That's actually what I meant to do, although I wasn't clear enough.

M1EK|10.31.05 @ 6:01PM|#

"So don't extend the position."

Then you have to abandon the idea that statism == always bad.

To me, statism in the form of the Feds forcing integration on the South == unquestionably good.

To you guys, they should have waited a few more decades for the market to solve the problem. Easy to say when you're white, I suppose. Or when, like the smug jackass I mentioned in the very first post, you live in an era where your particular minority group isn't discriminated against (much).

|10.31.05 @ 6:02PM|#

Okay, we're coming in on three to four sides of this issue.

M1EK: You're deliberately missing the point. There is, and must be, a distinction between laws with absolute purpose, such as murder, and laws designed as social engineering, such as Jim Crow or affirmative action. Laws against murder make murder illegal; the results of Jim Crow, for example, are not so simple.

SPD: You and I likely agree, but my impression is that Julian doesn't. If it is the law that corporations cannot discriminate in hiring practices, then Julian's example of a company choosing not to hire anyone named Sanchez is illegal. If corporations can discriminate against people named Sanchez, then the class-action against Wal Mart would be invalid. I suppose the question is what is the line between regulation and social engineering?

M1EK|10.31.05 @ 6:03PM|#

"They were also all heinous, heinous racists. (Truman a little less so. A little. Wilson, of course, was the absolute worst of the bunch with the possible exception of Jackson. Anyone calling themselves a liberal who doesn't know that, should)."

They were men of their times, and in most cases LESS racist than the alternative.

"A switch from Jim Crow to big-government paternalism: out of the frying pan, into the trash."

Bullshit.

A black kid in 1920 had essentially no shot at an education in vast swaths of the South. Whatever else the Great Society fucked up, it at least made sure that those who WANTED to make something of themselves COULD.

|10.31.05 @ 6:03PM|#

Which country's government banned the use of religious head coverings for Muslims: France, which I believe is somewhere in Western Europe, or the U.S.? Was that in 1904 or 2004?

I'm pretty gulags and concentration camps were state-designed, too. And somewhat European in nature.

Apartheid? State-designed.
The Chinese Cultural Revolution? State-initiated.
Russian pogroms of Jews? State-initiated.
Anti-immigration laws? State-initiated.

Can't blame the free market for any of that.

M1EK,

Would a black person rather live in the segregated South, or, say, Western Europe?

Western Europe when? Today? There are more oppurtunities and less discrimination in the U.S. for people of color than there are in France. Visit a banlieu sometime. Oh wait, you are a liberal. I forgot that you morons had all these myths about Europe that we've yet to deflate. Western Europe isn't paradise for people of color and never has been. I mean my fucking goodness, the French forced (via a version of near-slavery called conscription) hundreds of thousands of black people - from Africa - to fight in WWI in the Western Front for them. These people didn't even have a pretense of voting. Indeed, the French government denied them the vote right up to the time they were either independent or on in the case of Algeria, the pied noirs were given an oppurtunity to cut and run.

|10.31.05 @ 6:04PM|#

"statism in the form of the Feds forcing integration on the South == unquestionably good."

Good. In a qualified sense. Caesar crossing the Rubicon was also good. In a qualified sense.

Nothing is unquestionably good - not even the slow and steady stroking of The Invisible Hand.

|10.31.05 @ 6:05PM|#

why, in other words, can we trust the federal government to get involved with laws against murder?

Umm. We can't. That's a state government power* under the Constitution**.

* ...to get back to the discussion of a Supreme Court nominee and his federalist tendencies.

** Except, of course, when the federal government needs to enforce the 14th Amendment against lame local governments.

fyodor|10.31.05 @ 6:05PM|#

This position, if extended, leads to anarchy

You say that like it's a bad thing! :-)

The way out of your paradox is to ask when does it make sense for the government to be involved? And the answer is when rights, strictly defined, have already been violated, because that's when things have already gotten as bad as they can get, so there's little room for government to screw it up worse, as much as it might often try!

M1EK,

Its an easy comparison - both were shitty places for your average person of color to live in. Now, Paris was an awesome place for "The Bird" and others to go, but they were famous blacks.

M1EK|10.31.05 @ 6:05PM|#

"M1EK: You're deliberately missing the point. There is, and must be, a distinction between laws with absolute purpose, such as murder, and laws designed as social engineering, such as Jim Crow or affirmative action. Laws against murder make murder illegal; the results of Jim Crow, for example, are not so simple."

"deliberately missing the point" == "liar", right? Checking my scorecard. I'm the only one who gets dinged for this particular infraction, so you're scot-free.

Affirmative action is complex, but how were the results of Jim Crow not simple? (other than issues over the definition of "black")?

fyodor|10.31.05 @ 6:08PM|#

A black kid in 1920 had essentially no shot at an education in vast swaths of the South.

And who controlled education?

|10.31.05 @ 6:09PM|#

"in most cases LESS racist than the alternative."

Horseshit. Than Wilkie? Than TR?

Dude, "Birth of a Nation" starts with a Wilson quote. Right up on the screen. Yikes.

You simply don't know what you're talking about.

Goldwater you can argue because of his anti-Civil Rights Act stance (which he later modified in an "I guess the ends do justify the means after all" way).

But on a personal level, in conversation, in friendships, in his beliefs - you know, the heart of a man as a husband and a father, which John Roberts cruelly keeps hidden - LBJ could out-racist Goldwater any day of the year.

Truman I will give a little more credit - he was more a Hank Hill scared-of-other-people type, and less a genuine deep-imbued racist. But Wilson in particular was *whack*. Some of the worst traits of turn of the century Progressivism coming together - chief among which was a bleak, "scientific" racism. (See also Sanger, Margaret).

|10.31.05 @ 6:10PM|#

So, it's easy to point out that laws were the cause of the problem.

Well, no -- racists were the cause of the problem; laws were the tools they used to hurt people. Or do you suppose that a bunch of otherwise well-meaning white people passed the Jim Crow laws on a fucking whim?

M1EK,

What exactly do you know about Europe in the 1st half of the 20th century? Did you realize that Langston Hughes experience was fairly unique?

M1EK|10.31.05 @ 6:11PM|#

Knemon,

Yes, I'll give you Wilson. But FDR wasn't in that league, and LBJ hated _everybody_.

|10.31.05 @ 6:11PM|#

Phil,

Suffice it to say that M1EK is very confused. :)

M1EK|10.31.05 @ 6:12PM|#

fyodor,

Oddly enough, the market failed to provide black kids in the South with a decent education. Amazingly, the market fails to satsify the desires of customers who essentially have no money.

But I'm sure if we had just let them rot, that by now, the market would have solved the problem. And the multiple generations who suffered would gaze down on us with admiration from Heaven as their great-great-grandkids finally become sorta equal. After all, statism would have been worse!

J. Goard|10.31.05 @ 6:13PM|#

Hey, deontologists, armchair libertarians, answer this thought experiment:

Suppose 99.9% of the population hates Max. Don't ask me why. It's a consumer preference, like how most people love pizza and hate living next to slaughterhouses. There are exceptions, but not many; Max is just the anti-pizza to almost everybody.

People believe lots of things about Max, too, including lots and lots of false things. Books are published with poorly reasoned arguments to the effect that Max is a different species from the rest of us, perhaps (wink, wink) even closer to a baboon than to a man. Hey, people have a right to buy these books, and they don't come close to meeting the legal definition of libel. Also, people put on plays where they dress up like Max, and act like buffoons or villains. Lots of other people come to these plays and are highly entertained, such being their subjective consumer preferences.

Such is the hatred of Max, that the 99.9% who hate him also hate hanging around with anyone who doesn't hate him. If, at a party, you fail to laugh heartily at a crude anti-Max joke, word spreads, and you lose 99.9% of your business contacts, and 99.9% of your social circle.

Okay, so what about the economics? What are the 99.9% losing by hating Max? The business of Max himself? Obviously a drop in the bucket. The business of the 0.1%? Maybe -- but recall, I havent stipulated that that sliver of the population *loves* Max, or has any particular desire to see him better off than not. They wouldn't have much reason to give up their share of the 99.9% just for the business of Max, so, for all intents and purposes, they may as well be with the majority. And the majority gains much from hating Max -- entertainment, and a nice warm feeling of natural superiority. On net, aggregate preferences are simply such that Max is screwed.

Now, please explain to me how, a priori, you can tell me that Blax could never have been partly Max -- or, more precisely, that the Max dynamic could have been an important part of the Blax dynamic, even apart from state-enforced segregation and Klan-style terrorism.

|10.31.05 @ 6:16PM|#

Suffice it to say that M1EK is very confused. :)

I wasn't quoting M1EK. Learn to read.

I'd prefer to say that I think you are choosing to not recognize the distiction for the sake of the argument, even though you know the difference to be true.

Well, not to write an essay about it, but I'd say that the purpose of Jim Crow laws were to maintain American blacks as a permanent underclass, and to maintain the Southern white stranglehold on political and economic power. I would say that they did not achieve those goals, although they have a myriad of repercussions seen to this day. So while the purpose of Jim Crow can be easily explained, the effect cannot. The same is true for affirmative action; clear goals, murky outcomes. However, laws outlawing murder do not have effects that are far removed from their purpose: to create incentives to not commit murder, and to punish those who do.

|10.31.05 @ 6:18PM|#

Would a black person rather live in the segregated South, or, say, Western Europe?

When? How about the 1930s and 40s?

|10.31.05 @ 6:23PM|#

Well, no -- racists were the cause of the problem; laws were the tools they used to hurt people. Or do you suppose that a bunch of otherwise well-meaning white people passed the Jim Crow laws on a fucking whim?

No more so than any well-meaning white businessmen decided to discriminate against blacks on a whim. But now that we've made a nod towards shrill pedantry, let's carry on.

Suppose 99.9% of the population hates Max.

Then, surely, if they thought it was a legitimate power of the state to regulate freedom of contract and association, it would be against the law to associate with Max.

Incidentally, you do realize that there are more than 6 billion people in the world whom it is illegal to employ in the United States. That massive discrimination is not the doing of the free market.

|10.31.05 @ 6:31PM|#

Now, please explain to me how, a priori, you can tell me that Blax could never have been partly Max -- or, more precisely, that the Max dynamic could have been an important part of the Blax dynamic, even apart from state-enforced segregation and Klan-style terrorism.

Why should anyone have to? If your question is "does shunning someone because you don't like them have the same motivation as oppressing someone because you don't like them", it's rather unilluminating.

fyodor|10.31.05 @ 6:35PM|#

Amazingly, the market fails to satsify the desires of customers who essentially have no money.

Moving target alert. Financial accessibility is a whole other issue from whether free markets are likely to discriminate in lieu of governmental discrimination.

|10.31.05 @ 6:36PM|#

Truman I will give a little more credit - he was more a Hank Hill scared-of-other-people type, and less a genuine deep-imbued racist.

Truman supported some quixotic civil rights bills while he was a senator and integrated the armed forces while he was president. I think he deserves a hell of a lot of credit.

|10.31.05 @ 6:44PM|#

Look, the state's arguement in Doe is that because the affidavidt asked to strip search the wife and child they should be allowed to do it. Warrants must specify who or what is to be searched and nowhere did the actual warrant authorize the search, running out of space is no excuse.

So here we are libertarians are saying that it's OK for cops to search whoever they want as long as they ask first, regardless of whether they get permission or not. If only libertarians were as protective of individual rights as they are of corporate rights.

|10.31.05 @ 7:10PM|#

BTW, I cannot let this pass:

I see that Stevo's already been spanked on this very topic before:

http://www.reason.com/hitandrun/2005/08/hawaiiansonly_p.shtml

After re-reading the thread you cite, I can only conclude that you must define "been spanked" as "struck repeatedly on the palm of the hand with someone's else's ass."

PS: Just in case anybody missed this earlier:

A very small sampling of Jim Crow laws requiring private businesses to segregate restaurants, lunch counters, restrooms and other examples of facility segregation previously claimed, on this thread and the other one, to have nothing to do with Jim Crow laws.

Yow, my hand hurts!

dhex|10.31.05 @ 7:23PM|#

"What does Carl Jung have to do with libertarian debating tactics?"

just about every god damn thing in the world.

for what it's worth, i'd rather be dealing with the current mess, with all its unintended consequences and abuses, than the jim crow-era mess.

fyodor|10.31.05 @ 7:24PM|#

Stevo,

Thanks for the link. It makes it look as though much of the discrimination in the South was legally enforced.

But to be a devil's advocate here, if that was the case, then after such laws were declared unconstitutional in the fifties, why were the Civil Rights laws of the sixties still seen as needed?

|10.31.05 @ 7:28PM|#

Wow, looks like we've got a lot of hit-and-run (pun intended) commenters from lefty blogs. Well, the solution to bad speech is more speech, I guess...

|10.31.05 @ 7:45PM|#

Thanks to all those who responded to my earlier posts. Also, J. Goard seems to have said what I wanted to add, in a better way than myself.

I don't think that the free market caused any apartheid, slavery or segregation, but I don't think the free market by itself would have resolved any of them either, which is where I seem to depart from many of the posters here.

I'll take J. Goard's example and stretch it a bit further. Now, it looks like there is a gap in the market, to serve Max. So maybe there is scope for Max-accepting churches, bars and restaurants. And other businesses may set aside space in the back for Max, out of sight of the majority of the Max-hating populace. (Don't ask me where the hatred comes from, it seems to be a social/cultural construct that sometimes gets codified into law under certain kinds of regimes.) Max, due to his restricted circle, has fewer economic opportunities, and is never going to be the one to get five star service, or even be in a position for favorable economic exchange terms for his own services.

What seems to be wrong with this picture, is the premise of equality of opportunity that is denied to Max. This seems to be a political right to me, and I would be interested to know where the free market has solved this problem independent of government legislation.

Actually, come to think of it, I would also like to know what the libertarian argument is against slavery. It just seems like a good old economic transaction to me. Assume that the slaves entered into the transaction of their own will, or were sold by their guardians. I've heard that the slaves were better fed and looked after by their masters than when freed, proving once again that property rights are the most fundamental.

I'll also state my own point of view, that we should legislate against slavery, apartheid, segregation and unfair discrimination because they are immoral, just as theft, assault, murder and rape are.

dhex|10.31.05 @ 7:54PM|#

slavery is theft, assault and an implied right to murder and rape at will. like, duh, fer shure.

threadjack: is there anyone who still advocates for slavery of anyone in any form, outside of slavers and holders themselves?

|10.31.05 @ 8:02PM|#

fyodor,

In the 'Fifties? Or did you mean 'Sixties? Because the article said the laws persisted until the 1960s. Until the Civil Rights Act of 1964, I presume.

Also, I won't pretend that every act of discrimination was mandated by law. Change was needed, but not necessarily by government means. I just wanted to attack the idea that government action was needed to bring about the social change, when in fact, giving the government the power to decide how people of different races should interact actually obsctructed the potential for change driven by market forces.

In the link I provided, there is another link to an article about the protests over the segregated lunch counter at Woolworth's in Jackson, TN. I don't know if M1EK is refering to that Woolworth's incident, or one in Charlotte, NC, or another one. But in the case of Jackson, TN, the article makes it clear that the local Woolworth's decision to segregate the counter was "a private business decision."

The article also makes it clear that the company ultimately changed its policy, not because it was forced to by law, but in response to demonstrations -- public actions, but by private citizens (potential customers), not government.

History totally gives the lie to the idea that market forces would have been ineffective in achieving change, or that the steps taken by governments were a necessary and trustworthy force for good.

But I'm sure many people still saw a need for the Civil Rights laws because many people tend to mistrust the market, overly trust the government, and are confused about the distinction between public and private.

|10.31.05 @ 8:17PM|#

I'll also state my own point of view, that we should legislate against slavery, apartheid, segregation and unfair discrimination because they are immoral, just as theft, assault, murder and rape are.

How do you feel about discrimination on the basis of national residence?

Chris Beck|10.31.05 @ 9:09PM|#

One issue of concern about Alito - recusal:

############
In 2002, Alito dismissed a case in favor of a company where he was heavily invested [Philadelphia Inquirer, 12/15/03]:

Judge Samuel A. Alito Jr., a member of the U.S. Court of Appeals for the Third Circuit, has been accused of a conflict of interest by a woman whose suit he and two other appeals judges dismissed�. According to Alito�s 2002 financial-disclosure statement, the judge held investments worth $390,000 to $930,000 in 11 Vanguard funds in July 2002, when he ruled on a lawsuit filed by Shantee Maharaj of Wayne against Vanguard.

Alito argued that he didn�t need to recuse himself because the case was so small that it wouldn�t even affect Vanguard:

They have $600 billion invested with them. The idea that a case like this would affect [their investments] is just ludicrous.
###############

It might be trivial to them, but 500k is probably not trivial to him it is therefore in his best interest to defend it as vigourously as possible, To me it would seem to be a case of justice not being seen to be served.

|10.31.05 @ 9:29PM|#

"The search warrant form did not have enough space (physically on the paper) to include the target of the search AND anyone else on the premises."

That's just crap. I find it difficult to believe that this is the most unexpectedly complex warrant they'd ever asked for, and thus were unprepared and unable to include a woman and girl.

Sorry, that doesn't fly.

|10.31.05 @ 9:33PM|#

Phil,

Learn the difference between reading and understanding. I mean really, that is just such a dense insult on your part.

|10.31.05 @ 9:40PM|#

Unfortunately I didn't have time to keep up with this discussion much less join in today but in skimming some of the comments I just about fell out of my chair with the unmatched (on this thread anyway) ignorance of 1skeptic. I mean if I was going to make up a caricature of a troll I wouldn't try shit like this because nobody would believe it; this is way past even Jaunita territory here.

Actually, come to think of it, I would also like to know what the libertarian argument is against slavery. It just seems like a good old economic transaction to me.

Anyone who could utter such contemptible drivel obviously has no concept of what libertarianism is. While there are at least as many ideas about what freedom means as there are (intelligent) commenters on this board the one thing I have no doubt they would all agree upon is that slavery violates any notion of freedom in the most fundamental way and is morally repugnant. That libertarians, who place a respect for freedom at the very core of their philosophy, would feel this way is so patently obvious to any reasonably thoughtful person that I can only conclude that 1skeptic is simply neither reasonable nor thoughtful. That libertarians would find such a statement insulting is so patently obvious that I can only conclude 1skeptic is also a total asswipe in need of a courtesy flush.

So, 1skeptic, perhaps you should take another commenters advice and go read up on libertarianism to, in the immortal words of Hakluyt (or was it Gary Gunnels?), "relieve yourself of your ignorance" before coming back here and subjecting us to such abuse.

And just incase you think I'm being a bit harsh with this fool, let's not forget these gems from further up-thread:

Do keep telling us, apartheid is ok, slavery is cool, segregation is natural. After all, its libertarian, so how can it be wrong? (emphasis mine)

That statement is perhaps the most offensive thing I've ever read on H&R, and that's saying quite a lot! Apartheid is libertarian!?!?! Slavery!?!?! Segregation!?!?! It's a good thing I haven't eaten yet. But he wasn't done -

Can't believe this needs explaining to anyone old enough to be on this blog.

I can't believe how much I have to restrain from swearing.

On that last point, I think it is those that have endured your inane, ignorant and insulting load of horseshit and who have somehow managed to refrain from swearing who are demonstrating amazing self-restraint (or some very undeserved politeness and civility) towards a very unwelcome and unworthy addition to the comments page.

|10.31.05 @ 9:47PM|#

Stevo Darkly,

Well, the point is that the Montgomery Bus Boycott was, you know, the market at work. See, folks like M1EK can't be bothered to actually research these issues. They'd rather make vague, unsupported comments about Western Europe instead.

M1EK,

Oddly enough, the market failed to provide black kids in the South with a decent education.

Because the government has a near monopoly on education. All your arguments lead back to the same conclusion - government is a dangerous creature that shouldn't be trusted with much power.

But I'm sure if we had just let them rot, that by now, the market would have solved the problem.

Needless to say, the problem was never going to be solved into the legal framework was changed. Why you keep on deliberately confusing markets with government action I can't say, but it wasn't big, bad evil capitalists enforcing Jim Crow, it was the government that you so love.

|10.31.05 @ 10:19PM|#

Having read the opinions in the Doe case, I don't think the officers claimed that there wasn't enough space on the warrant; were that the case another sheet could have been stapled to it.

What the officers argued was that the affidavit attached to the warrant -- which stated that a search of all persons on the premises would be necessary -- was explicitly referenced in the warrant. It was not, however, mentioned in the "persons to be searched" section.

The majority opinion essentially said that had the affidavit been referenced in the "persons to be searched" section of the warrant, the search would have been lawful. So, Alito's beef with the majority in this case seems to be that he doesn't think putting the reference in the wrong part of the warrant is enough to invalidate a search.

While I disagree, I also recognize that this is not a huge breech of the 4th ammendment, certainly nothing compared to what the courts sanction every day.

|11.1.05 @ 12:57AM|#

"So much for meritocracy."

WRONG. See Griggs v. Duke Energy (here's one formulation of the case: http://straylight.law.cornell.edu/supct/html/historics/USSC_CR_0401_0424_ZS.html ). The Supreme Court arrogantly asserted that judges knew better than employers in what fostered productivity. As both economists and libertarians endlessly repeat, the market punishes unjustified (meaning discriminating against factors unrelated to productivity) discrimination. Employers cannot administer IQ tests, even though IQ has been correlated with productivity, unless they go through the expensive process to validate it. One blogger supposed that this is why investment banks only take students from elite schools, why employers ask for SAT scores, why they rely on so heavily on interviews, and maybe even why employers require a college degree (thus marking them as members of a higher IQ strata). Granted, this may be due to the way the anti-discrimination law has been interpreted. But that is intrinsic to the law; the possibility of misinterpretation is a strong consideration when enacting a law. Besides, how do you prove discrimination? When is it segregation and when is it discrimination? What if you own a company in say India, and the muslims do not get along with the hindus (This may not be true. It is an example, dont be offended). So you set up some muslim and some hindu divisions. Is that so wrong? Or if you are catering to some kind of aesthetic, for a dance troupe, a clothing line, a TV show... the possible infractions are endless. And when is an action racist and not rational? Ice Cube hates Korean grocers because they look over his shoulder to prevent shoplifting. Maybe because, by golly, some customers actually do shoplift?!?!

And if you object to the practices of a company, then march with your feet: do not give them your business. If you oppose globalization, do not buy foreign made cars. Just don't foist your whims on me.

|11.1.05 @ 1:15AM|#

First time here; thanks for the research.

It looks like us Dems can only object on "Litmus" grounds, which is obviously wrong. But we have a lot of people worked up for a fight and I'm afraid this might be it.

Frustration over the WMD con, deficits, Crony-gate (Katrina), Libby (& Cheney?), etc., are boiling over. Right or wrong, I'm betting all this anger is channeled here. Our filibuster will be countered by the GOP with the "nuclear" option. Not sure how productive that's going to be in the long run for either side. Let's hear it for the politics of divisiveness!

How do Libertarians view the "right" to filibuster nominees?

|11.1.05 @ 4:22AM|#

"(Requisite libertarian disclaimer: If some employer decides it doesn't want to hire people named Sanchez, I think it ought to be able to legally?though I'd hope for it to be swiftly punished by public opinion.)"

It's damn easy for people to say this TODAY

Unless you own a time machine, TODAY is the only day you're ever going to say anything.

A good case could be made that the abolition of the right to free association was necessary as a TEMPORARY measure to get rid of institutionalized racism. Well, it has been gotten rid of, for a couple of decades now. There is no more need to continue the ban on free association than there is to continue martial law (also necessary at various points in history) or implement the armed overthrow of the government (ditto). Freedom of association should be restored to Americans at once.

|11.1.05 @ 4:49AM|#

Hi MikeP

"How do you feel about discrimination on the basis of national residence?" Mixed feelings. "Kein Mann ist illegal" read some graffiti reported in an article on immigration by the Economist some time back. It's hard to argue with that. On the other hand, its also hard not to see the nation state as a mutually implied contract between all citizens. As is probably well known to people on this blog, free immigration used to be the norm, but that was before the advent of the welfare state, immigrants having rights, and concerns about 'overcrowding' in the west. One possible way to neutralise some objections could be to have an auction mechanism for a limited number of residence permits, above a reserve price, where both the number and price are democratically set.

One could hope that once people saw the benefits over time, the balance would tilt towards no restrictions. But I couldn't wish a Russia-style sharp & nasty shock on the citizens of any country. I suppose its might be compared to the difference between caring for people who are in the family, and who aren't. This is as far as I've got at the moment, and I would welcome your comments or others.

Stevo Darkly

Going through your posts here and on the previous thread, it would seem that you would refer to the actions of say Rosa Parks and other civil rights activities as 'market forces'. I would rather call them 'political forces'. Probably we would both agree that it is individuals self-organised that will most likely bring about these kinds of changes. But I don't understand why you shy away from government intervention, which to me is also individuals self-organised, on a larger scale. The civil rights activists were hoping not just to influence individual businesses but also the larger community to pass laws to ensure these things didn't happen. Do you believe that the pendulum has swung from negative to positive discrimination, where it should have stopped at neutral?

ANM,

The market may punish unjustified discrimination, only when there are enough actors to go the other way. In the short run, markets may be stuck at a suboptimal equilibrium, as it may be in no individual business's interest to be the first to break the consensus, because of expected retribution from the majority. Also, as I said before, people do give up absolute economic gain for relative status.

Nothing starts from a clean slate. Is setting a slave free enough, or should there be reparations? Till recently, all the employers and management were men. This had some consequences when women went into the workplace. Do you think the gender discrimination and sexual harrassment laws are unnecessary? Should women then just have found another job? And then another and so on, till they found their ideal meritocratic employer? For how long?

|11.1.05 @ 8:20AM|#

it would seem that you would refer to the actions of say Rosa Parks and other civil rights activities as 'market forces'. I would rather call them 'political forces'.

Call them what you want, but the point is that they are not government-directed forces. ie, it is possible to bring about change without govt involvement.

But I don't understand why you shy away from government intervention, which to me is also individuals self-organised, on a larger scale.

If individuals self-organize on an issue, they have no need for govt intervention. Government only intervenes when coercion is necessary to accomplish a goal.

|11.1.05 @ 10:34AM|#

ANM,

I threw out my back foisting whims, so no more of that.

And while I choose not to consciously support companies with whose policies I disagree, I understand I can't do that all the time. I just questioned whether or not such a thing would be effective over a certain period of time.

fyodor|11.1.05 @ 10:41AM|#

But I don't understand why you shy away from government intervention, which to me is also individuals self-organised, on a larger scale.

Although crimethink beat me to it, allow me to say more specifically that while both mass protests and governments are forms of human organization, the big difference is that government accomplishes its goals using coercion. Now, if a government agency using only voluntarily collected funds organized a boycott or put out information about why a particular business's practices were unjust, some may raise eyebrows over this not being a valid exercise of government power, but it would not directly violate any libertarian principles. It is the initiative use of coercive powers against people who have not to date violated anyone's rights that libertarians object to. When libertarians spew on about the awfulness of the government, it is primarily because the government is generally all about coercion, unlike the peaceful actions of protests and boycotts. And while discriminating against customers based on their race is ignorant and deplorable, it is no less a free exercise of one's rights than is a speech singing the praises of Osama Bin Laden. And such discrimination does not violate anyone's rights because no one has a right to the services or cooperation of someone else.

|11.1.05 @ 11:56AM|#

Woolworth's DID go out of business, you know.

M1EK|11.1.05 @ 12:26PM|#

"the big difference is that government accomplishes its goals using coercion."

Yup. Telling Woolworth's it can't refuse service to black people IS coercion.

It's also right.

Oooooooo.

Waiting for the market to solve this problem is saying to the people at the time that they have no right to participate in the economy. People as market-friendly as libertarians should understand how this is a bad idea on at least pragmatic grounds.

|11.1.05 @ 12:28PM|#

J. Goard,
That was the strawiest strawman that ever did straw*.

* - with apologies to straw.

|11.1.05 @ 1:02PM|#

1skeptic,

Aside from your pragmatic reservations, you seem to agree that the moral thing to do would be for the government to get rid of immigration barriers. That's a very positive position to present. I take it that you would support completely free trade under the same argument.

But note that your reasoning above -- that the government should legislate against unfair discrimination -- would compel employers not to favor Americans in their hiring practices. Do you really want to go there?

A libertarian looks at the situation and asks, "Why is the government involved at all?" Why introduce prohibition on the one side and compulsion on the other side when free people associating freely will produce a better solution than anything the government can come up with?

|11.1.05 @ 1:52PM|#

I just love the repeated question of why didn't your precious free market solve the problems caused by Jim Crow laws curtailing market options for black people, huh, huh?.

M1EK|11.1.05 @ 2:28PM|#

"why didn't your precious free market solve the problems caused by Jim Crow laws curtailing market options for black people, huh, huh?."

Why won't you stop beating your wife?

Woolworth's CHOSE to discriminate.

|11.1.05 @ 2:30PM|#

Yes, I'm afraid M1EK has become a human Moebius strip.

|11.1.05 @ 2:48PM|#

Woolworth's CHOSE to discriminate.

Apparently they did. In a free world, some people will do bad things. They changed their choice after five months of sit-ins.

Now if those sit-ins had happened, say, one decade earlier, the response might not have been the capitulation of a racist corporate owner. The response might have been a North Carolina state law mandating the segregation of the races at lunch counters -- a law that would have stood four years longer than Woolworth's now impossible desegregation. Then instead of black patrons being able to eat at someone else's integrated lunch counter, they'd have no such choices.

Why do you find it wise to give governments the power to regulate free association? I presume you don't find it wise to give governments the power to regulate free speech, no?

M1EK|11.1.05 @ 3:15PM|#

"Woolworth's CHOSE to discriminate.

Apparently they did. In a free world, some people will do bad things. They changed their choice after five months of sit-ins."

The only reason this worked is that the locals were well-aware that they could only abuse the lunch-counter-sitters so far before the Feds would come in and kick their asses.

IOW: they were coerced.

M1EK|11.1.05 @ 3:20PM|#

This guy must be Stevo Darkly's arch-enemy:

http://www.sethf.com/essays/major/libstupid.php

" This is what sets it apart from Liberalism, Conservatism, and so on. One outcome against prediction will not send those intellectual foundations crashing down, because they aren't based so heavily on absolute rules applications. Libertarianism, by contrast, if it ever concedes a market failure fixed by a government law, is in deep trouble.

So this in turn leads Libertarians into amazing flights of fancy, for example, to deny the success of civil-rights laws. They must say institutional segregation was somehow all the government's fault, or it would have gone away anyway, or something like that. Rather than racism, it's being made stupid by ideology-poisoning.

Libertarian logic is an axiomatic system that bears very little resemblance to standard deductive thought - which is in part why it's so debilitating to people. It's a little like one of those non-Euclidean geometries, internally valid results can be derived from the postulates, but they sound extremely weird when applied to the real world."

Moebius strip indeed.

|11.1.05 @ 4:14PM|#

Anomdebus, your comment was very funny. But in my opinion J Goard has got it right.

Can I ask people with knowledge of UK history, is it true that pubs and inns used to have signs saying 'No blacks, dogs or Irish? Was this required by law?

MikeP, I'm not American so I'll take "requiring American employers not to favor Americans" as a more generic question. I would say we're well on our way there if you go by trade figures. It seems to be right of residence that is under discussion now, not right of employment. At the (utopian by todays standards) stage where global immigration is as unfettered as global trade, it seems unlikely that there would be favoritism in employment for anyone just because they happened to be born at a particular place. You have only to look at the recent past and marvel at how commonly it was thought that a person of a different race or gender could not do such and such job.

Should the government regulate the right to free association, or free speech. I would say the government already does both to preserve order. That is why you cannot today have bars putting up 'no niggers' signs. Or people having sex in public. The day to day cost of policing and mending adverse reactions would be too high, so it is easier to prosecute the originator for creating public disorder. But you can put up whatever sign you want in your bedroom, and obviously have sex there, with some attractive person of the race and sex of your choice if you're lucky.

Fyodor, I agree that no one has a right to the services or cooperation of someone else. But if such services are proferred in the economic marketplace that is now defined as being in the public sphere, in my opinion they should not by law be offered on discriminatory terms to different people. The Government is not forcing a white shopkeeper to serve black people. It is only saying, if anyone runs a shop, then they must serve all customers on equal terms. Contrast this with a black person being forced to serve on a white person's plantation, and you can see what the tradeoff is here, I don't think too much is being sacrificed.

fyodor|11.1.05 @ 4:45PM|#

Libertarianism, by contrast, if it ever concedes a market failure fixed by a government law, is in deep trouble.

No, not at all. Maybe some libertarians would have cognitive dissonance, but there's an easy answer. Consider this: I offer you to bet on a 7 or an 11 on the roll of the dice. You pick 7 cause you're not totally stupid. I roll an 11. You lose. Does that mean it was a mistake to pick 7? Of course not. There are going to be instances when government does a better job than the free market in eliciting a particular result. And that's why I've asked questions indicating I'm not 100% sure the free market necessarily provided the best result in this particular case. But that does not mean that the free market provides the best overall results in the most overall cases. But just as we don't know if a 7 or 11 will be the result of any given roll, there's no way to know ahead of time when government action will prove more efficient than the free market. And even IF the government coercion accelerated the pace of reform, there are other factors to consider. One is, do the ends justify the means? I don't like academics making excuses for radical Islamicists any more than I like restaurants not serving blacks, but I recognize that free speech and free association are inalienable rights. Next, and this is not unrelated, are there unintended undesired consequences? While I can't prove it as real life cannot be contained in a laboratory experiment, when you look at all the disaffected militia movement and white power types, I think the sense of victimhood that feeds their movements is directly fed by unjust laws that criminalize the rights of assholes.

So yeah, sure, libertarians are as hesitant to admit any imperfections in their philosophy as any other brand of human. But no, individual cases of "market failure" does not disprove the entirety of libertarianism. It just means that the world operates on probability not determinism and sometimes one benefits from taking a larger perspective on things than individual cases may immediately provide.

fyodor|11.1.05 @ 4:54PM|#

But if such services are proferred in the economic marketplace that is now defined as being in the public sphere

Interesting use of the passive tense there: "is now defined...." Yes, that's the rationale of the laws in question. I think it's pretty clearly a rationalization. Private property is private property and doesn't stop being private property just because your customers are not individually invited onto the premises.

The Government is not forcing a white shopkeeper to serve black people. It is only saying, if anyone runs a shop, then they must serve all customers on equal terms.

Seems to me you're looking for imaginative ways to deny the obvious. If someone does not want to serve a black person because he stupidly does not want to serve black people, then the law demanding that he serve all customers on equal terms is sure enough forcing him to do what he wishes not to. Calling it something different, and pointing out that it is not the exact same circumstance as another more universally reviled form of coercion, does not keep it from being what it clearly is. That's what the law always does, is force people to do what they don't want to, or to not do what they do want to. Which is why its use should be limited to cases of people violating others' rights.

|11.1.05 @ 5:08PM|#

the Feds would come in and kick their asses

Okay M1EK,

Please chime in on the conversation I've been having with 1skeptic.

Do you want to end government prohibitions against the free migration of people across the border? Now that the government forbids discrimination on the basis of race, religion, sex, etc., will you be at the front of the line to overturn their legislated discrimination on the basis of national residence?

|11.1.05 @ 5:34PM|#

This guy must be Stevo Darkly's arch-enemy:

... www.sethf.com/essays/major/libstupid.php

"Libertarianism Makes You Stupid." Hmm. I detect a slight amount of bias in this source. That's OK -- having a viewpoint doesn't mean the presentation of one's facts and logic are valid.

(But you object to me citing a Thomas Sowell piece that appeared in the Washington Times?)

Although I notice the essay you cite seems to be a bit short on facts or history, relying almost entirely on rhetoric and polemic, which doesn't impress me so much. (Although I can find logic convincing by itself it appears the writer knows what he's talking about.)

So this in turn leads Libertarians into amazing flights of fancy, for example, to deny the success of civil-rights laws. They must say institutional segregation was somehow all the government's fault, or it would have gone away anyway, or something like that.

Hey, I have an idea -- let's Ask a Black Man. Not just any random black dude, but an economist who has spent a 40-year career studying this kind of stuff.

The most dramatic rise of blacks out of poverty occurred before the civil rights movement of the 1960s. That's right -- before. But politicians, activists and the intelligentsia have spread so much propaganda that many Americans, black and white, are unaware of the facts.

There is a lot of political mileage to be gotten by convincing blacks that they owe everything to the government and could not make it in this world otherwise. Dependency plus paranoia equals votes. But blacks made it in this world before the government paid them any attention.

Nor has the economic rise of blacks been speeded up by civil rights legislation. More blacks rose into professional ranks in the five years preceding passage of the Civil Rights Act of 1964 than in the five years after its passage.

More apologist trash from an obvious racist at an even more right-wing forum here.

|11.1.05 @ 5:35PM|#

Oops, correction:

That's OK -- having a viewpoint doesn't mean the presentation of one's facts and logic are necessarily invalid.

|11.2.05 @ 2:37AM|#

No one here recognizes the impossibly vague language of anti-discrimination laws.

"The market may punish unjustified discrimination, only when there are enough actors to go the other way. In the short run, markets may be stuck at a suboptimal equilibrium, as it may be in no individual business's interest to be the first to break the consensus, because of expected retribution from the majority. Also, as I said before, people do give up absolute economic gain for relative status.

Nothing starts from a clean slate. Is setting a slave free enough, or should there be reparations? Till recently, all the employers and management were men. This had some consequences when women went into the workplace. Do you think the gender discrimination and sexual harrassment laws are unnecessary? Should women then just have found another job? And then another and so on, till they found their ideal meritocratic employer? For how long?

" You are certainly correct though (I think) about your assertion of breaking the consensus. Thomas Sowell, in a tract about anti-discrimination laws, wrote that as soon as one baseball team hired a black guy (I forgot who), the rest did so too just to compete. The more competitive the market, the more impetus to break the consensus. Similarly, when the trucking industry was deregulated, the number of black truckers increased dramatically (both examples are from Sowell's book, basic economics or the sequel to that one, I forget which).

The intentions of the law were admirable, but the law itself is very liable to manipulation. It has transformed into a protection of the favored parties, creating such doctrines as affirmative action, speech codes and the Bill Bennett Brouhaha. It has thrown the pendulum to the other side, instead of the probable gradual shift to the middle that would have occurred had a more libertarian course been taken (abolishing all Jim Crow type laws, but not instituting anti-discrimination laws).

I'd imagine that the paucity of women in the workplace was largely the result of society's casting of women as homemakers. I'm not convinced that there was widespread discrimination. I also think that the vast majority of sexual harassment claims is not anything worth punishing. Sexual harassment should be punished only if it falls under the purview of other crimes, like assault.

My first response when hearing a problem, particularly an economic one, is, "what has the government done to cause, or amplify, this problem?" And it seems that in every case, the government has done something. Sometimes minor, sometimes major, but true all the same. Oil: Taxes at local, state, federal levels, strict environmental regulations. And if the government is not at fault, I ask, what can PEOPLE do to remedy this problem, not the government. There probably are things that only the government can fix, but their proportion is vastly overestimated by both the left and the right.

M1EK|11.2.05 @ 9:49AM|#

Hey Stevo,

I posted the link you liked so much because it was funny, since it almost exactly pigeonholed the arguments you've used here. I do not assert it lacks bias.

And as for your link from "random black guy" - give me a fucking break.

dbt|11.2.05 @ 4:53PM|#

I haven't read this yet, but FYI ThinkProgress is a blog sponsored by CAP so it's not surprising they're working from the same list.

Moon|11.3.05 @ 10:50AM|#

Thanks, Mr. Sanchez, for helping to clear the air of some of the serial misstatements that have been running around. I'm firmly ensconced on the progressive side of the spectrum, but I'm also an attorney, and I simply cannot countenance the serial misrepresentations of his work endemic to most of the off-the-cuff commentary that's dominating the blogosphere (and the MSM commentariat, as well).

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