American Values

Prudent Minimalism: How to Forge a National Consensus

The fourth post in the Volokh Conspiracy symposium on "Our American Story: The Search for a Shared National Narrative" (ed. by Joshua Claybourn).

|The Volokh Conspiracy |

The United States today is a sprawling country that contains around 325 million individuals of decidedly different views on large numbers of social and political issues.  One challenge that faces our nation, like any other, is how to forge some national identity that will allow us to move forward together in ways that allow for disagreements at home and protect us against our enemies abroad.  The common attitude toward this problem is to try to reconcile the irreconcilable by reaching agreement on the many, many issues that divide us as a nation.  In my view that effort to create a top-down consensus by force is far more likely to result in an exacerbation of the very tensions we are trying to ease.

The more people argue about points that really matter to them, the clearer they come to understand the depth of their differences.  An evangelical Christian will not agree to the proposition that religion is the opiate of the people, or that it is immoral to deviate from the Biblical commandments, including those that define marriage as a union between one man and one woman.  A supporter of Black Lives Matter will not rest easily so long as he or she thinks that institutional sexism or racism disfigures the face of the nation, and that much of that is attributable to a form of white supremacy that needs to be suppressed by the relentless enforcement of the civil rights laws.  And persons who are determined to eliminate poverty within our midst will have little patience with innovators and entrepreneurs who think that they can only thrive in a low tax, weak regulation environment.

My greatest fear for the future is that a constant insistence that all of these issues admit to  some collective solution will drive the nation even further apart than it already is.  To see why, it is important to return to fundamentals about the basic function of government.  I start from the premise that government works best only on those issues on which consensus across different social and economic groups is highest.  The first issue that meets that test is in my view the need to preserve order against the use or threat of force by private individuals against each other.  There is no one who can prosper knowing that lives may be shattered and property taken at the whim of others.  Even if most people in the world are law-abiding, it only takes on individual to wreak havoc, which is why the traditional preoccupation of  Thomas Hobbes or a John Locke to constrain the use of force lies at the heart of proper government function. On that issue at least, we should be able to maintain a needed consensus.  A similar approach explains why it is dangerous to put the monopoly power over essential facilities in the hands of a single person, to admit or exclude others at will.  The origins of the nondiscrimination principle in our law does not begin with the modern civil rights movement.  It begins with the notion that the owners of common carriers and public utilities had a duty to serve all persons equally on fair and nondiscriminatory terms.  The mechanics way be difficult to execute, but the basic principle remains a sound today as when it was announced by Sir Matthew Hale in England in the late seventeenth century.

The modern civil rights law also put this nondiscrimination principle front and center but with this critical difference.  No longer are the antidiscrimination rules used as an antidote to the public or private use of monopoly power.  Now they are asserted to apply in competitive markets as well, notwithstanding this huge difference.  Under competition, there are legions of other individuals who are prepared to render service if any given firm or individual is not.  To force individuals to serve those whom they do not wish to do has little gain in this context, regardless of the reasons offered for that decision.  Even straight racism, sexism or anti-Semitism has little social consequence if and only if the champions of those attitude cannot call on the power of the state to legislate their preferences into law.  The worst forms of discrimination will have strong negative reputational effects on the businesses that practices.  But they will not have that consequence if a substantial portion of the population is willing to continue to do business with those who hold those disfavored views.

A long time ago, Justice Harlan Fiske Stone announced that courts had to be especially zealous in the protection of "discrete and insular minorities" that could not protect themselves in the legislative process.  American blacks tortured by systematic state segregation—an abuse of government monopoly power—was a group in desperate need of protection from state power. But the victory of the civil rights movement should not blind us to the dangers that remain.  Individuals like Jack Phillips, the practicing Christian who refused out of religious convention to design a wedding case for a same-sex couple is as much in need of that protection from the modern "civil rights laws" as black Americans decades ago.  It is wholly improper for the state to force him to engage in that conduct against conscience.  The disappointed  gay couple can obtain a wedding case from dozens of nearby merchants.  Yet today Jack Phillips must face the intolerable choice to either abandon his religion or his business.  The constant drumbeat against him creates an atmosphere of abuse and resentment—not to mention overt threats of physical violence—that no decent society can accept. The long-term principle of religious toleration is put at risk by the modern civil rights movement, precisely because it fails to recognize any fundamental limitations on state power. Remember state monopoly power can be a danger whether used by our enemies or our friends.


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  1. This all assumes there need be national consensuses (consensi?) on everything we do as individuals.

    No one ever suggests cutting back the scope of government. No, all you statists think only of ways to force everyone to agree on some miserable compromises on how we mind each others’ business.

    Consider that a society which emphasizes individualism, agency, responsibility, and accountability can perfectly well allow those who want socialism to voluntarily simulate socialism by contracting with each other to their hearts’ content; they can turn over their property and income according to whatever contracts they want.

    But a coercive socialist society cannot simulate individualism. It can’t even tolerate it.

    There’s your consensus, as voluntary and individual as people want.

    1. “No one ever suggests cutting back the scope of government.”

      Do you refer to proponents of bigoted, authoritarian immigration policies and practices? Advocates of statist womb management and big-government micromanagement of certain medical facilities? Those who believe government should enforce essentially limitless special privilege for religious claimants? Supporters of military belligerence and massive military budgets?

  2. It would certainly be nice to have a consensus to invoke the civil rights laws only against potential monopolists.

    However, we know that there is certainly no consensus on this issue, or likely to be one. On the contrary, the *mildest* term millions of people will apply to advocates of this libertarian position will be “divisive.”

    So if avoiding divisiveness is the important thing, why not simply go with the flow and let the government expand the civil-rights laws, hoping that the deployment of enough police will suffice to get people to fall in line?

  3. So Epstein thinks the first step to achieving a more unified country is to repeal civil rights laws?

    Yeah. That’ll work. Sure. Great idea.

    1. He did not say that.

    2. Agree with b11.

      Epstein’s blog took a wacky turn there at the end into one of the more divisive issues of our times.

      Not sure how that’s going to forge a national consensus.

      1. Yeah, if Richard Epstein is disagreeing with Eugene Volokh, who filed an amicus brief supporting the proposition that Phillips should be put out of business, that bodes ill for the prospect of forming a national consensus.

    3. A cake from every single bakery in the nation is not/should not be a civil right

      1. Should universities be entitled to exclude from their faculties every person who claims to believe in superstition — that supernatural stories are true, at the expense of science and reason?

        I doubt conservatives are ready to permit schools to refuse to hire anyone who claims to believe in creationism, or in a man rising from the dead, or a man living inside a fish, etc.

        1. If its a government created oligarchy providing a necessary service and gobbling up tons of taxpayer money ie the college system and big media platforms they should be under heightened scrutiny for discriminatory practices. If its 1 privately owned cake shop out of millions across the country not so much.

        2. Private universities, sure. Public, no, as that is government punishing religion.

          Indeed I recommend private facilities that ban the religious to do so loudly and proudly.

          1. A lot of private universities extract the vast majority of their money from government grants and mandate, not the least of which, you are required to send your children at vast expense to be brainwashed for 4 years that biology is a social construct or else they don’t get a sheepskin that allows them to be gainfully employed. OTOH there is no government mandate that you need a SSM cake from every single cake shop in the country. Now imagine telling an objective alien which is controversial and which isn’t

            1. no government mandate that you need one but there is a government mandate that they provide them funnily enough.

          2. Others can’t discriminate against superstition-based claimants. The superstitious, however, can discriminate based on bigotry.

            Got it. Good luck with persuading modern America on that.

            1. No, thats not it at all. If a cabal of fundamentalist Christians ran the vast majority of college campuses where you had to attend to get a job and also owned all of Silicon Valley I would be fine with government action to make sure that atheists and hindus got a fair shake while uploading the right of 1 muslim baker to choose not to bake a fundamentalist christian cake if there was a million other functionally equivalent or better alternatives available.

              1. Are you unfamiliar with the hundreds of conservative-controlled campuses that discriminate — customarily based on religion — in everything from admissions to hiring (professors to basketball coaches and janitors)? That engage in strenuous censorship and mock academic freedom? That teach nonsense, suppress science, mock history — yet are accredited nonetheless?

                These schools tend to be low-quality, low-ranked (or unranked) goober factories with sketchy accreditation and poor performance, but they exist and should not be disregarded. At least, not by honest, informed, decent people.

              2. No, thats not it at all.

                That is exactly it.

                What you see, over and over, is that y’all are arguing that any given butcher, baker or candle-stick maker should be able to refuse me service because of what his god thinks of gays.

                But at the same time, I am statutorily prohibited from refusing service to any given butcher/baker/candle-stick-maker based on what their god thinks of gays.

                And I am told this is “compromise”.

                1. 1 private baker =! Silicon Valley Oligarchy/University Oligarchy. This isn’t rocket science sheesh.

                  1. Correct.

                    I was bringing the point back around to the actual cases.

                    It was pretty obvious.

  4. In Blackstone’s time, innkeepers and “victuallers” were in a competitive market. Despite that, the Commentaries say they are obliged to serve everyone unless there is good reason, and that someone turned away without good reason has a cause of action.
    In living memory in my country, a competitive market for travel services left open a need for The Green Book to tell African-Americans where it was safe to stay on road trips. My country also realized that a lunch counter was a “victualler” and that “Just go to another lunch counter!” was not an acceptable solution.
    There’s a clear difference between that and wedding cakes, and the law could reasonably treat the two differently.

  5. The mechanics way be difficult to execute

    Ancient Philosopher Confuseus says: What????

  6. Not much of a solution since this idea of minimalism itself will be rejected. The belief system currently in vogue among the Twitterati, as a generalization of Marxist ‘thought’ from economic class into sex and race, needs conflict and the ‘other’ to exist. There has to be a struggle of the ‘oppressed’ overcoming the ‘oppressors’ thats a Prog’s reason to get up from bed in the morning. They derive meaning both from identifying as a victim and saving victims from the evil cis white males misgendering or making video game characters with big boobs or sticking plastic straws up turtle noses. Its one more day staving off the existential dread of your utter insignificance and powerlessness in modern day life.

    If conflit doesn’t exist it will be invented. See microaggressions, the sudden importance of transgender bathrooms, and affirmative consent every 20 seconds, to life when somehow people got along without it since up until 5 years ago. So they’ll be unhappy with any solution about leaving others to do their own thing especially if it actually works. I mean I guess you can say that about any authoritarian creed but its built into the very bones of modern ‘Social Justice’.

  7. “Even straight racism, sexism or anti-Semitism has little social consequence if and only if the champions of those attitude cannot call on the power of the state to legislate their preferences into law.”

    So e.g. black children growing up in an environment in which many businesses (actually or in effect) post ‘whites only’ signs in their storefront windows has little social consequence? If you believe this, Richard, I think that you are being naïve, reprehensibly callous, or willfully obtuse.

    1. Yes. It’s nonsense. In fact, he seems to contradict himself in the very next sentence:

      The worst forms of discrimination will have strong negative reputational effects on the businesses that practices. But they will not have that consequence if a substantial portion of the population is willing to continue to do business with those who hold those disfavored views.

      He also overlooks the case where reputational effects go the other way – where there are a significant number of customers who are attracted by the discriminatory practices.

      1. B11, I agree that Richard’s next sentence contradicts the one I quoted, but with my example (which concerned the objects of racism rather than its perpetrators) I was making a different, and I think more important, point.

  8. I think the very concept of some kind of national identity is flawed. Only in times of dire emergency does a community, much less a nation, put aside its differences to accomplish a goal. And, that goal needs to be able to be articulated as something very simple (even if the process of accomplishing it is complex).

    Having said that, it does start with the concept of “civil rights.” But laws? Maybe not. At the moment, not baking a cake can land you out of business, or possibly, even in jail. Not baking one for a neo-nazi, not so much. Your social, ethnic, racial, or economic status, might help you get into the college of your choice. Unless, of course, one is of Asian descent, in which case your high achievements might work against you. Those are just a couple of examples.

    Unless the large majority of members of a community can agree that individual rights cannot be abrogated for somebody else’s “good,” we will always fall short of any kind of consensus. Easily said. Nigh impossible to achieve.

  9. If Epstein thinks that bigoted cake makers are as in need of civil rights protections as black folks are, I’m glad to say that I do not wish to form a national consensus with him.

    1. I believe it important to note that not all religious Americans are poorly educated, bigoted, stale-thinking people.

      And that bigotry is not improved when wrapped in a cloak of superstition.

  10. Have always appreciated Professor Epstein, brilliant guy. This post could easily be a dictation from a 3 minute off the cuff comment.

    The point made reminded me of this amazing video:

    How Anti Racism Hurts Black People – John McWhorter

  11. Cool story.

    If it’s that important to you to protect Phillips, there are a few ethical paths to follow.

    (A) Change laws limiting the legal notion of “public accommodations” such that contracted services such as his custom-cake services are not public accommodations.
    (B) Give everyone a “conscience exemption” to non-discrimination laws.
    (C) Repeal all non-discrimination laws and see what happens.

    These responses do not prioritize any one group or belief over another, and continue to treat everyone equally before the law. Anti-gay beliefs are no more protected then anti-Semitic or anti-black beliefs.

    Instead, religious liberty activists went with option (D) argue that anti-gay religious beliefs are uniquely important and should receive exemptions to non-discrimination laws that no other religious belief receives.

    They argued it in court: give anti-gay beliefs special protections, but don’t those dirty anti-black or anti-Jew beliefs aren’t worth protecting.

    We see it in legislatures: give exceptions for anti-gay beliefs, but leave the non-exception status quo for all other categories.

    We see it in articles like this. Call out the half-dozen non-discrimination cases involving gay people in the last decade, but never mention the literally hundreds of non-discrimination cases that happen, ever year, involving race, religion, ethnicity, sex and so-on.

    So long as you insist on treating anti-gay beliefs as uniquely deserving of protection, you will lose, even if you “win”. Why? Because if you were actually okay with tearing down all non-discrimination laws (which will happen if you “win”), you wouldn’t be arguing in favor of treating anti-gay beliefs as a special case.

    1. I’d say that if, for example, a Nation of Islam baker didn’t want to cater an interracial wedding, the happy couple could simply go to the baker who *isn’t* in the NOI and get their ceremony catered.

      As a matter of fact, I’d wonder about an interracial couple who were so insistent on using the occasion of their wedding to legally harass a Black Muslim who literally did nothing to them, except send them and their business elsewhere.

      But in addition to this, one can’t simply insist that new suspect classes should be continuously added to the civil-rights laws. If sexual orientation must be protected, why not political orientation? Why is one more deserving of protection than the other?

      But if you add political orientation, then you get compulsory National Socialist cakes for Hitler’s birthday, just like Gary Johnson advocated.

      1. And why not size discrimination? Force big-and-tall clothing stores to sell clothes for skinny people, and conversely force all stores to sell clothes for larger persons.

        Then add dietary preferences to the statutory list. Why should a kosher deli discriminate against pork-lovers? Why shouldn’t pork-eaters be able to walk into any restaurant – open to the public, remember – and demand a nice ham sandwich, never mind any silly religious objections?

        Really, is there any logical stopping place?

        1. You know, I hear that Bubba’s BBQ Shack doesn’t offer a full menu of vegan options. Aren’t vegans human beings?

          “Hath not a vegan eyes? hath not a vegan hands, organs, dimensions, senses, affections, passions? fed with the same food…”

          OK, not fed with the same food, but you get the idea. What kind of bigotry can account for the law giving Bubba a free pass to discriminate against vegans?

          1. OK, you ran out of steam on this one.

            Bubba can serve what he/she/ze feels like.

            There are laws about who he can’t deny service to.

            1. Right.

              Bubba can decide what we wants to put on his menu. But if a vegan decides to stray, and comes in looking for a rack of ribs Bubba does have to serve them.

              1. Yes, but why should the law be this way? So far I’ve seen no clear principle from your allies about what should be a suspect classification or not.

                Simply saying “well the law doesn’t say that” misses my point – after all, plenty of jurisdictions don’t list sexual orientation as a suspect classification, yet I presume you want those jurisdictions to *change* their laws.

                What other suspect classifications should they add, or is sexual preference somehow more sacred than political preference, eating habits (talk about genetic predispositions!), etc.

                1. And as for selling BBQ on equal terms to vegans and non-vegans, do you think a similar ruse would work in the case of race discrimination? A store has beauty products geared only toward white-skinned people, but allows dark-skinned people to buy those products – would that fly?

                  1. A store has beauty products geared only toward white-skinned people, but allows dark-skinned people to buy those products – would that fly?
                    Yes. Hair salons do it all the time. Pressuring cosmetic companies to expand their lines is a social issue, not a legal one.

                    1. Very interesting…sounds like a loophole for the legislature to close, wouldn’t you concur?

                    2. No I wouldn’t.

                    3. So a store could sell wedding cakes with a bride and groom on them, and inscribed “To the Bride and Groom,” and have no products for same-sex marriage, and that would be all right?

        2. re: “force all stores to sell clothes for larger persons”
          My wife is from Argentina. She tells me that this is the case there.
          (Nuts, if you ask me. But then, most “progressive” ideas are.)

      2. I’d say that if, for example, a Nation of Islam baker didn’t want to cater an interracial wedding, the happy couple could simply go to the baker who *isn’t* in the NOI and get their ceremony catered.

        Part of the problem here is the implicit assumption that discrimination of this sort is an odd, one-off phenomenon that doesn’t really have much effect.

        That’s not true. We know that there are distinct, identifiable, groups who have suffered discrimination from a great many sources. It is a systemic problem, not a rare idiosyncrasy. Treating it as if it’s just some lunatic who doesn’t like red-headed people or something is misunderstanding the problem.

        1. The original post suggested invoking “civil rights” laws only in the face of a monopolistic situation.

          Nowadays we see popular celebrities marrying interracially, and in short a sea change in attitudes. Can we still say there’s a monopolistic situation where interracial couples need a Green Book to find a caterer?

          1. Some changes in attitudes. Not necessarily universal ones. There are plenty of people around who think SSM, for example, is immoral, or somehow wrong. And there is plenty of bigotry.

            I don’t see the case for restricting the civil rights law to monopolistic situations. Restaurants and hotels, to take an obvious example, surely operate in a competitive environment, yet they practiced discrimination, even in places where that was not required by law.

            Employers in the Jim Crow South were not subject to laws requiring discrimination in hiring and other employment practices, yet they engaged in it widely.

            1. When you see Strom Thurmond supporting the appointment, to the Supreme Court, of a black man married to a white woman, then I think “sea change” is the appropriate term to describe the change in attitudes.

              1. And I suppose I should mention electing a President who was born of an interracial relationship.

                There’s really no avoiding the existence of a fairly fundamental change in attitudes.

                As for monopolies, my take is that if you can show the business whose practices you’re challenging remains rife with racism, etc., then by all means hold that business to account for the discrimination in the industry…though that’s still not a good excuse to violate the religious freedom of the Black Muslim baker.

                1. For interracial marriage I think “sea change” is appropriate.

                2. OTOH, there is stuff like this.

          2. So choose option C and get on with it.

            But if you’re going to keep the law, there’s no call to pretend offense when someone seeks to use it.

            1. “pretend offense”

              There are so many psychics on the Internet with the power to read minds…with your skills you could really pull in the big bucks.

              1. And you continue to avoid the actual point.

                1. I was distracted by your mind-reading prowess by which you divined that I was pretending to be offended about something or other.

                  1. Interestingly, you avoid *my* point by failing to explain what additional suspect classifications, beyond sexual orientation, you would add to the civil rights laws.

      3. “Find another baker” is a cop-out, and you should know that if you don’t already.

        Simply put, if it would be wrong to enforce our non-discrimination laws, then the non-discrimination law is wrong and should be changed.

        1. I’m not the only one suggesting changes to the civil-rights laws.

          I would change them so that the plaintiff has to prove a pattern of discrimination in the industry to which the company he’s suing belongs. You can throw out terms like “cop-out”…or you could use actual arguments against that idea.

          Meanwhile, you want to change federal and state civil-rights laws to add a new suspect classification – sexual orientation. You’re not content to simply leave the laws as they are, with some laws covering sexual orientation and others not.

          Yet you fail to articulate the principle on which which you operate in adding new suspect classifications. Is sexual orientation the *only* classification you want to add, or do you have other changes in mind? Why, for example, should businesses be free to discriminate based on politics – refusing service to citizens who simply want to honor the birthday of their favorite politician?

          1. I’m not the only one suggesting changes to the civil-rights laws.

            No. You weren’t (until this post) suggesting we change them at all. You were explicitly advocating that people just not enforce them.

            I wasn’t subtle about what I was objecting to.

            1. To clarify things, would you mind giving a quote where I said that?

              1. Well, that shut things down quickly.

  12. I’ve been curious for a while as to how far anti-discrimination laws restrict speech rather than actions.

    Is a racist business owner allowed to hang a sign espousing said racism, as long as he serves the people he despises?

    1. Is a racist business owner allowed to hang a sign espousing said racism, as long as he serves the people he despises?

      Yes. You can, in fact, fill your lunch counter to the brim with historical cultural artifacts of Jim Crow, frame the Cornerstone Speech and hang it on the wall, and name your restaurant something degrading to black people.

      But so long as you don’t actually treat black customers differently, you’re legally fine.

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