Civil rights, wrongs, and extremism in the defense of liberty

[Rich Graves <rcgraves@disposable.com>]

Bill Frantz mentioned the 1960's civil rights movement as one of those 
revolutions that Thomas Jefferson thought were a good idea. Maybe 
that's what he had in mind, maybe not. It's good to keep in mind that 
other people, including many here, may have different conceptions of 
ordered liberty than we do. Here's a Bork piece from 1963.

I also recommend the lengthy article on "Liberalism Defined" in the 
21-12-96 issue of The Economist. It's online, at least for a while, at 
http://www.economist.com/issue/21-12-96/xm0017.html

-rich

http://www.tezcat.com/~nrn/bork63.txt

Civil Rights - A Challenge
by Robert Bork

Passions are running so high over racial discrimination
that the various proposals to legislate its manifestations
out of existence seem likely to become textbook examples
of the maxim that great and urgent issues are
rarely discussed in terms of the principles they necessarily 
involve. In this case, the danger is that justifiable
abhorrence of racial discrimination will result in legislation
by which the morals of the majority are self-righteously
imposed upon a minority. That has happened before in the
United States - Prohibition being the most notorious instance -
but whenever it happens it is likely to be subversive of free 
institutions.

Instead of a discussion of the merits of legislation, of which
the proposed Interstate Public Accommodations
Act outlawing discrimination in business facilities
serving the public may be taken as the prototype, we
are treated to debate whether it is more or less cynical
to pass the law under the commerce power or the Fourteenth
Amendment, and whether the Supreme Court is
more likely to hold it Constitutional one way or the
other. Heretical though it may sound to the constitutional
sages neither the Constitution nor the Supreme
Court qualifies as a first principle. The discussion we
ought to hear is of the cost in freedom that must be
paid for such legislation, the morality of enforcing
morals through law, and the likely consequences for
law enforcement of trying to do so.

Few proponents of legislation such as the Interstate
Public Accommodations Act seem willing to discuss
either the cost in freedom which must accompany it or
why this particular departure from freedom of the
individual to choose with whom he will deal is justified.
appears to recognize but to wish to avoid these questions,
for, in speaking on behalf of the bill before a congressional committee,
he went so far as to state that the law would create no
precedent. That of course is nothing less than an admission 
that he does not care to defend the bill on general principles.

There seems to be a strong disposition on the part of
proponents of the legislation simply to ignore the fact
that it means a loss in a vital area of personal liberty.
That it does is apparent. The legislature would inform
a substantial body of the citizenry that in order to continue
to carry on the trades in which they are established they must
deal with and serve persons with whom they do not wish to
associate. In part the willingness to overlook that loss of freedom
arises from the feeling that it is irrational to choose associates on
the basis of racial characteristics. Behind that judgment,
however, lies an unexpressed natural-law view that
some personal preferences are rational, that others are
irrational, and that a majority may impose upon a
minority its scale of preferences. The fact that the
coerced scale of preferences is said to be rooted in a
moral order does not alter the impact upon freedom. In
a society that purports to value freedom as an end in
itself, the simple argument from morality to law can
be a dangerous non sequitur. Professor Mark DeWolf
Howe, in supporting the proposed legislation, describes
southern opposition to "the nation's objective" as an
effort "to preserve ugly customs of a stubborn people."

So it is. Of the ugliness of racial discrimination there
need be no argument (though there may be some
presumption in identifying one's own hotly controverted
aims with the objective of the nation). But it is one thing
when stubborn people express their racial antipathies in
laws which prevent individuals, whether white or Negro,
from dealing with those who are willing to deal with them,
and quite another to tell them that even as individuals they
may not act on their racial preferences in particular areas of
life. The principle of such legislation is that if I find your
behavior ugly by my standards, moral or aesthetic, and
if you prove stubborn about adopting my view of the situation, I
am justified in having the state coerce you into more
righteous paths. That is itself a principle of unsurpassed ugliness.

Freedom is a value of very high priority and the
occasions upon which it is sacrificed ought to be kept to
a minimum. It is necessary that the police protect a
man from assault or theft but it is a long leap from
that to protection from the insult implied by the refusal
of another individual to associate or deal with
him. The latter involves a principle whose logical reach
is difficult to limit. If it is permissible to tell a barber or
a rooming house owner that he must deal with all who
come to him regardless of race or religion, then it is
impossible to see why a doctor, lawyer, accountant, or
any other professional or business man should have
the right to discriminate. Indeed, it would be unfair
discrimination to leave anybody engaged in any commercial
activity with that right. Nor does it seem fair
or rational, given the basic premise, to confine the
principle to equal treatment of Negroes as customers.
Why should the law not require not merely fair hiring
of Negroes in subordinate positions but the choice of
partners or associates in a variety of business and
professional endeavors without regard to race or creed?
Though such a law might presently be unenforceable,
there is no distinction in principle between it and what
is proposed. It is difficult to see an end to the principle
of enforcing fair treatment by private individuals. It
certainly need not be confined to racial or commercial
matters. The best way to demonstrate the expansive
ness of the principle behind the proposed legislation is
to examine the arguments which are used to justify it.

Perhaps the most common popular justification of
such a law is based on a crude notion of waivers:
Insistence that barbers, lunch counter operators, and
similar businessmen serve all comers does not infringe
their freedom because they "hold themselves out to
serve the public." The statement is so obviously a fiction
that it scarcely survives articulation. The very reason for
the proposed legislation is precisely that some individuals
have made it as clear as they can that they
do not hold themselves out to serve the public.

A second popular argument, usually heard in connection
with laws proposed to be laid under the Fourteenth
Amendment, is that the rationale which required
the voiding of laws enforcing segregation also requires
the prohibition of racial discrimination by business
licensed by any governmental unit because "state action"
is involved. The only legitimate thrust of that
"state action" characterization, however, is to enable
courts to see through governmental use of private
organizations to enforce an official policy of segregation.
There is a fundamental difference between saying that
the state cannot turn over its primary election process,
which is actually the only election that matters, to the
"private" and all-white Democratic Party and saying
that a chiropodist cannot refuse a Negro patient because
a state board has examined him and certified his
competence. The "state action" concept must be confined
to discerning state enforcement of policy through
a nominally private agency or else it becomes possible
to discern the hand of the state in every private action.

One of the shabbiest forms of "argument" is that
endorsed by James Reston when he described the contest
over the public accommodations bill as one between
"human rights" and "property rights." Presumably no
one of "liberal" views has any difficulty deciding the
question when so concisely put. One wishes
nonetheless, that Mr. Reston would explain just who
has rights with respect to property other than humans.
If A demands to deal with B and B insists that for reasons
sufficient to himself he wants nothing to do with
A, I suppose even Reston would agree that both are
claiming "human rights" and that this is in no way
changed if one of the humans is colored and the other
white. How does the situation change if we stipulate
that they are standing on opposite sides of a barber
chair and that B owns it?

A number of people seem to draw a distinction between
commercial relationships and all others. They feel justified,
somehow, in compelling a rooming house
owner or the proprietor of a lunch counter to deal with
all comers without regard to race but would not legislate
acceptance of Negroes into private clubs or homes. The
rationale appears to be that one relationship is highly
personal and the other is just business. Under any system
which allows the individual to determine his own
values that distinction is unsound. It is, moreover,
patently fallacious as a description of reality. The very
bitterness of the resistance to the demand for enforced
integration arises because owners of many places of
business do in fact care a great deal about whom they
Serve. The real meaning of the distinction is simply
that some people do not think others ought to care that
much about that particular aspect of their freedom.

One of the Kennedy administration's arguments for
the bill is that it is necessary to provide legal redress in
order to get the demonstrators out of the streets. That
cannot be taken seriously as an independent argument.
If southern white racists - or northern ones, for that
matter - were thronging the streets, demanding complete
segregation of commercial facilities, it is to be
hoped that no responsible politician would suggest
passing a law to enable them to enforce their demands
in court. In this connection, it is possible to be somewhat
less than enthusiastic about the part played by "moral
leaders" in participating in demonstrations against private
persons who discriminate in choice of their patrons. It
feeds the danger of the violence which they
are the first to deplore. That might nevertheless be
tolerable if they were demonstrating against a law that
coerced discrimination. They are actually part of a mob
coercing and distributing other private individuals in
the exercise of their freedom. Their moral position is
about the same as Carrie Nation's when she and her
followers invaded saloons.

Though the basic objection is to the law's impact
upon individual liberty, it is also appropriate to question
the practicality of enforcing a law which runs contrary
to the customs, indeed the moral beliefs, of a large
portion of the country. Of what value is a law which
compels service to Negroes without close surveillance
to make sure the service is on the same terms given to
whites? It is not difficult to imagine many ways in
which barbers, landlords, lunch counter operators, and
the like can nominally comply with the law but effectively
discourage Negro patrons. Must federal law enforcement
agencies become in effect public utility commissions
charged with the supervision of the nation's
business establishments or will the law become an 
unenforceable symbol of hypocritical righteousness?.

It is sad to have to defend the principle of freedom
in this context, but the task ought not to be left to those
southern politicians who only a short while ago were
defending laws that enforced racial segregation. There
seem to be few who favor racial equality who also perceive
or are willing. to give primacy to the value of freedom in this
struggle. A short while back the majority of the nation's moral
and intellectual leaders opposed all the manifestations of 
"McCarthyism" and quite correctly assured the nation that
the issue was not whether communism was good or evil but whether
men ought to be free to think and talk as they pleased.
Those same leaders seem to be running with the other
pack this time. Yet the issue is the same. It is not
whether racial prejudice or preference is a good thing
but whether individual men ought to be free to deal
and associate with whom they please for whatever reasons 
appeal to them. This time "stubborn people" with
"ugly customs" are under attack rather than intellectuals
and academicians; but that sort of personal comparison
surely ought not to make the difference.

The trouble with freedom is that it will be used in
ways we abhor. It then takes great self restraint to
avoid sacrificing it, just this once, to another end. One
may agree that it is immoral to treat a man according
to his race or religion and yet question whether that
moral preference deserves elevation to the level of that
principle of individual freedom and self-determination
If, every time an intensely-felt moral principle is involved,
we spend freedom, we will run short of it.