Libertarianism and Antidiscrimination Law

The latest issue of Cato Unbound is devoted to the topic of "Discrimination and Liberty," inspired by Rand Paul's controversial remarks about the 1964 Civil Rights Act. In the lead essay, George Mason University law professor David Bernstein criticizes Paul's comments and offers "a better libertarian approach to antidiscrimination law." Freeman Editor Sheldon Richman, Cato Institute Research Fellow Jason Kuznicki, and Harvard economist Jeffrey Miron will all weigh in with reply essays over the next week. Read them all here.

Comments

[Brian Sorgatz]

Threadjacking alert: This is the sequel to an earlier threadjacking of mine in which I announced that I was threatened with homelessness. I'm happy to report that I've miraculously found an apartment?under circumstances that are both good and bad for my karma as a libertarian. You can read about it at my new blog post, "I didn't exactly learn rugged self-reliance, but at least I refused any more help from my mother."

[Jizz Mopper]

Stop jacking all over the place.

[Brian Sorgatz]

But I wish to be a seminal figure in the libertarian movement.

[Old Mexican]

You're just not that interesting.

Next!

[Jo Denny]

Oh wow, now that really makes a lot of sense dude. Well done.

Lou
http://www.feds-logging.at.tc

[Suki]

I hope this is something like "make no law that enforces discrimination" sort of thing. The solution to Jim Crow was not more laws but the repeal of bad laws. Unfortunately, we got more bad law.

[?]

This is so easy:
Government has no right to discriminate. Private citizens do.
The end.

[New World Dan]

Hopefully, one day, Rand Paul will learn that debating philisophical issues with liberal pundits and the undeducated masses is like arguing with your wife. No matter how right you are, you're still wrong. Just say "Yes, dear." and then go do what you would have done anyway.

[?]

The bots are interested!

SPOILER ALERT? Kuznicki will be playing the good boy-in-blue in this show:

Today, anti-racist infringements on constitutionally protected lib-
erties entail relatively mild restrictions on intra- and interstate com-
merce, with relatively mild penalties and due process of law for
alleged transgressors?features totally absent under Jim Crow.
Goldwater considerably overstated his case when he claimed that the
Civil Rights act of 1964 "bids fair to result in the development of an
'informer' psychology in great areas of our national life?neighbors
spying on neighbors, workers spying on workers, businessmen spying
on businessmen."

Suck it up, racists!

[mr simple]

Confronted with the hate speech analogy, progressives will typically reply that supporting freedom of speech is completely different from supporting the right to engage in discriminatory action.

Here's where his argument breaks down. Progressives don't give a rat's ass about free speech. The only freedom they believe in is the freedom to live your life they way they plan.

[Old Mexican]

Getting rid of JIm Crow was one thing. However, the Statists' quest to make man a "perfect" being could not simply stop there. No, the State must stop discrimination wherever it is found and however it is defined. People cannot have choice, 'cause choice implies freedom, and freedom implies inequality - thus we all must be turned into slaves, in order to be perfect.

[Tony]

What legitimate reason does the state have to recognize and encourage the freedom of racists to act on their racism?

[tarran]

What legitimate reason does the state have to recognize and encourage the freedom of homosexuals to act on their homosexuality?

[Tony]

Not exactly parallel, dumbshit.

[tarran]

Actually, they are; if the state declines to jail someone for engaging in homosexual acts, are they encouraging them, or merely leaving them alone?

If I were to propose that the government promote people to experiment with homosexuality, you probably would think it a waste of tax dollars - I expect you would reason that people should be free to pursue whatever romantic partners they wish without restriction (excepting pedophilia of course), and that the state should neither encourage nor discourage them.

You would argue this despite the fact that a powerful argument may be made that society has a compelling interest in controlling reproduction & thus sexuality.

When one looks at how racism manifests itself, one sees two broad categories of actions, injuries (let's burn the black guys out of their home) or non injuries (I refuse to buy supplies from a 'black' store).

The latter or non-injuries in that in a free society, people are free to choose who they do business with. One man may boycott GE because it makes nuclear weapons. Another person may boycott GE because it has a hispanic CEO. A third guy may boycott GE because they gave money to the Landover Baptist Church.

Three guys carry out the same act. Under your rubric, though, one should be criminally liable, and the other two should be free.

[Tony]

You would argue this despite the fact that a powerful argument may be made that society has a compelling interest in controlling reproduction & thus sexuality.

Not powerful at all, in that any such argument would immediately run afoul of the easiest understanding of equal protection.

Under your rubric, though, one should be criminally liable, and the other two should be free.

No. Any individual has the right to boycott anything for whatever reason. Businesses that cater to the public don't have the right to refuse service to persons based on race. These are separate things entirely, with separate rationales.

Homosexuality is an identity, sometimes even a protected class. Government has no role other than to ensure equal protection. Racists are not a protected class of any kind, and they are characterized not by birth traits but by an attitude universally condemned by modern society, the acting upon which causes a society that sanctions inequality by not pushing back against it, and for which there is ample evidence. My arguments are consistent and both rely on equal protection.

[tarran]

These are separate things entirely, with separate rationales.

Really, how?

I have A that I seek to trade for B. I don't like one guy with a supply of B, so I refuse to trade with him. I instead go to another guy who also has B and trade with him instead.

You're saying that if A is money, and B is, hearing-aids, I have that right, but that if A is Hearing-Aids, and B is money, I don't?

Yesss, very consistent....

[Old Mexican]

Re: Tony,

What legitimate reason does the state have to recognize and encourage the freedom of racists to act on their racism?

What legitimate reason is there for a state to be, in the first place? Your question is loaded, Tony.

[Tony]

So that we don't have to live in an anarchic hellhole?

[R C Dean]

I'm hungry. Recipe, anyone?

[Zeb]

There is a difference between not acting on something and recognizing and encouraging it.

[Tony]

In my opinion, not in this case.

[tarran]

Wow... just wow...

the last time I read your argument, Tony, it was being used by someone to explain why we thought the U.S. government should nuke Iran. Because, after all, there was no difference between leaving Iran alone and encouraging it to nuke Israel.

[Tony]

I don't know about that. All I'm saying is that, especially and unequivocally in the case of the 1960s, government not acting was the same thing as government sanctioning racial segregation, since it was rampant in certain regions, and anyway government had to act to end the laws that supported it.

[tarran]

If the government not acting would support segregation, why were the Jim Crow laws passed anyway?

Why were businessmen willing to fight Jim Crow laws all the way to the Supreme Court, & state attorney generals willing to press the matter so fiercely?

[gnut]

Last week, the editor of a web site called "Atlas Shrugs" solicited donations for a potential lawsuit against the PayPal corporation, because they had discriminated against her.

The right-of-center crowd was angry; not at this traitor to the ideals of Ayn Rand and the rule-of-contracts, but at the PayPal corporation.

Judging by the reactions of her conservative and libertarian supporters, Pamela Geller has a right to use PayPal services.

[gnut]

Last week, Pamela Geller -- the editor of the "Atlas Shrugs" web site -- solicited donations for a potential lawsuit against PayPal. "Great, another lawsuit. Want to make a contribution to my fight?"

Rather than direct their anger at Ms. Geller for betraying the ideals of Ayn Rand, her conservative and libertarian supporters were quick to condemn PayPal for discriminating against the "Atlas Shrugs" web site, while turning a blind-eye toward her hypocrisy.

It's as though they believe that Pamela Geller have a right to use PayPal services.

[gnut]

Last week, the editor of a web site called "Atlas Shrugs" solicited donations for a potential lawsuit against the PayPal corporation.

"Great, another lawsuit. Want to make a contribution to my fight?"

Conservatives and libertarians were angry. But their outrage was not directed at Pamela Geller for betraying the ideals of Ayn Rand, but at the PayPal corporation for discriminating against her.

Commenters on various blogs who tried to justify Ms. Geller's hypocrisy claimed that PayPal violated their contract, one of the most Holy and Sacred documents to Ayn Randians. In addition to being unfamiliar with adhesion contracts in general, they obviously had not read section "V. Rights, Obligations and Disclaimers of PayPal" of the contract (emphasis added):

3. Closing Accounts and Limiting Account Access.
PayPal, at its sole discretion, reserves the right to close an account at any time for any reason, including but not limited to a violation of this Agreement, upon notice to the User and payment to the User of any unrestricted funds held in custody. . . .
4. Termination. PayPal, in its sole discretion, reserves the right to terminate this Agreement, access to its website, or access to the Service for any reason and at any time upon notice to you and payment to you of any unrestricted funds held in custody for you.

In an update to her blog post, Ms. Geller wrote (emphasis in original):

UPDATE: A number of trolls have written to admonish me for taking an un-Randian approach to the paypal affair. I beg to differ.

Businesses are free to conduct business with whom and however they choose and let the market decide. Absolutely.

I do not believe for a moment that the government should step in and regulate or force a business into doing bad business (i.e., sub prime mortgages) and/or changing its policy. But I also believe that it is in my power to call attention to bad business practice and make it known and let the market decide. If paypal is going to punish courageous voices and free men while sanctioning evil, people should know that before they give their business over to such quisling companies.

If "Atlas Shrugs" had prevailed in the lawsuit against PayPal that was considered, the judgment would have been enforced at the point of a government gun.

Pamela Geller and her supporters believe that she has some kind of right to use PayPal's services. That is most certainly un-Randian of them.

Last week, the editor of a web site called "Atlas Shrugs" solicited donations for a potential lawsuit against the PayPal corporation.

"Great, another lawsuit. Want to make a contribution to my fight?"

Conservatives and libertarians were angry. But their outrage was not directed at Pamela Geller for betraying the ideals of Ayn Rand, but at the PayPal corporation for discriminating against her.

Commenters on various blogs who tried to justify Ms. Geller's hypocrisy claimed that PayPal violated their contract, one of the most Holy and Sacred documents to Ayn Randians. In addition to being unfamiliar with adhesion contracts in general, they obviously had not read section "V. Rights, Obligations and Disclaimers of PayPal" (emphasis added)

3. Closing Accounts and Limiting Account Access.
PayPal, at its sole discretion, reserves the right to close an account at any time for any reason, including but not limited to a violation of this Agreement, upon notice to the User and payment to the User of any unrestricted funds held in custody. . . .
4. Termination. PayPal, in its sole discretion, reserves the right to terminate this Agreement, access to its website, or access to the Service for any reason and at any time upon notice to you and payment to you of any unrestricted funds held in custody for you.

In an update to her blog post, Ms. Geller wrote (emphasis in original):

UPDATE: A number of trolls have written to admonish me for taking an un-Randian approach to the paypal affair. I beg to differ.

Businesses are free to conduct business with whom and however they choose and let the market decide. Absolutely.

I do not believe for a moment that the government should step in and regulate or force a business into doing bad business (i.e., sub prime mortgages) and/or changing its policy. But I also believe that it is in my power to call attention to bad business practice and make it known and let the market decide. If paypal is going to punish courageous voices and free men while sanctioning evil, people should know that before they give their business over to such quisling companies.

If "Atlas Shrugs" had prevailed in the lawsuit against PayPal that was considered, the judgment would have been enforced at the point of a government gun.

Pamela Geller and her supporters believe that she has some kind of right to use PayPal's services. That is most certainly un-Randian of them.