A Right to Discriminate?

Yale University Press

Contents

Chapter One

This book examines the idea that there is a freedom of association that creates a right to resist antidiscrimination law. Where did this idea come from? There are two answers to this question because the idea of a right to exclude has two sources. One of these, the older of the two, is broadly libertarian. The newer source is narrower, rooted in the First Amendment's protection of free speech.

The earlier, libertarian rationale implies such a broad right to exclude that it is inconsistent with nearly any antidiscrimination law. Some courts adopted it, but this was an innovation of the Civil War period, devised specifically in order to authorize discrimination against African Americans. It has never transcended its maculate provenance. The free speech rationale is not so tainted and can provide a basis for limiting antidiscrimination law. But this basis generates a fairly narrow right to exclude.

The Libertarian Right to Exclude

The central claim of libertarianism, the philosophy of a minimal, laissez-faire state, is that government ought not to intervene in the private sector because to do so violates citizens' rights, because government cannot be trusted with such powers, or because the unregulated private sector is already the best of all possible worlds. Libertarianism in its classic form-call it "paleolibertarianism," to distinguish it from the neolibertarianism of the contemporary writers whom I address in Chapter 4-rests on three claims, which I will call "Rights," "Distrust," and "Optimism."

The Rights claim is that laws against discrimination are unjust regardless of what the consequences of discrimination might be. It resembles Kantian deontology in that it insists on economic rights without depending on predictions about the workings of an unregulated economy.

It begins with the premise that law should not interfere with liberty except to prevent violations of rights. Interferences for any reason other than the prevention of rights violations are themselves rights violations. When A associates with B but refuses to associate with ITLITL, that association does not violate any rights of ITLITL. No one has a right to compel others to associate with another one. Therefore, A has a right not to associate with ITLITL. It follows that the law violates A's rights when it penalizes A for his or her refusal to associate with ITLITL. When a state violates people's rights, it fails to show them the respect to which they are entitled.

Theories of this kind are familiar in the liberal tradition, but they rest on a remarkably constricted account of the human interests that the state can legitimately protect. A society could, on this account, have a permanent outcast population in a state of chronic economic misery, vulnerable to ruthless exploitation, and the state would have no power to remedy this situation, even if the culture of prejudice that is maintained thereby is one that itself produces numerous rights violations. The social world that libertarianism envisions is not a society of free and equal persons. Rather, it resembles feudalism: the poor and weak must place themselves under the protection of the rich and strong, on whatever terms the latter are willing to grant.

It is bizarre to think that respect for people demands such person-destroying results. Not only does this account fetishize a historically contingent distribution of entitlements; it also misreads the history it fetishizes. As we shall see shortly, the idea that property entails an absolute right to discriminate is not embedded in the common law from time immemorial but is an artifact of the Jim Crow era. Immanuel Kant, who is the wellspring of such rights-based arguments, was not himself so indifferent to considerations of human welfare.

Another strand of libertarian thought does attend to consequences. It rests on two interdependent claims: that government is not to be trusted (Distrust), and that an unregulated capitalist economy produces good results (Optimism). The claims are interdependent because the strength of each depends on that of the other: even a largely self-regulating economy might usefully be tinkered with by a sufficiently wise and trustworthy government, whereas if an unregulated economy leads to disaster, even an incompetent and corrupt regulator may be better than no regulator at all.

Both claims are exaggerated. The idea that capitalist economies can regulate themselves may have been plausible in John Locke's time, but it is hardly so in ours. Unregulated markets do not distribute goods in a just way. Their capacity to satisfy people's preferences is routinely hamstrung by monopolies, externalities, collective action problems, information asymmetries, and other market failures. They also produce aggregate effects that no one wants, such as vicious cycles of boom and bust. This is why libertarianism has been such a flop. No unregulated economy exists in any modern industrial country. And government has not proved to be all that untrustworthy. After the judiciary stopped reading libertarianism into the Constitution in the 1930s, the U.S. economy did not collapse, but rather was able to rely on its economic output to win World War II and the Cold War. Central management of the money supply has produced a marked softening of the business cycle. Libertarians worry about regulators being captured by powerful interests, but much of modern regulation manages to pursue the public interest. The classic tales of wasteful overregulation that are repeatedly cited in the media have been proved apocryphal. As a general matter, experience falsifies both Optimism and Distrust.

They meet the same fate when they are applied to antidiscrimination law. Richard Epstein has argued that consumer welfare would be maximized if a right to discriminate were allowed. Epstein's optimism about the fate of minorities in unrestricted markets is one that is supported neither by history nor by economic theory. Once more, the premise of Distrust is called into question by the success of anti-discrimination laws in dismantling discriminatory markets and opening economic opportunities to black citizens. Before the Civil Rights Act of 1964, unregulated markets had perpetuated race discrimination for decades, and the act, far from being incompetent meddling in a thriving economy, produced a huge decrease in the disparity between black and white incomes.

There is, of course, a valid core to libertarianism. Markets generate wealth better than any rival economic arrangement. They are distributively just insofar as they make the availability of resources to any person depend on the value of those resources to others. And they necessarily preclude some kinds of centralized direction: "Freedom means that in some measure we entrust our fate to forces which we do not control." But these generalizations have important exceptions. In the face of market failures, state intervention is appropriate. Courts have learned that they are not very good at deciding whether these conditions obtain in any given case, so they generally stay out of the regulation question and leave it to the political branches, the virtues of free markets notwithstanding. There is a big difference between being right most of the time and being right all of the time. Einstein showed that Newton was right most of the time.

Origins of the Libertarian Right

If the libertarian claim is so weak, why has it had such a powerful hold on Americans' imaginations? Why would anyone think that there is an absolute right to discriminate?

The idea of a legal prohibition against discrimination is as old as the United States. At common law before the Civil War, every business that held itself out as open to serve the public arguably had a legal obligation to serve anyone who sought service. The range of businesses that held this obligation is not clear. The legal authorities expressly extended the duty only to inns, blacksmiths, and common carriers, such as trains. But an exhaustive survey finds that "legal authority for the proposition that businesses other than common carriers and innkeepers have a right to serve whomever they wish is sparse to nonexistent." The reasons given for the duty were almost always that these businesses had held themselves out as ready to serve anyone, and that they could therefore be treated as "common callings" with a duty to provide service. This logic obviously applies to all businesses open to the public.

The rule had a limited scope. Boardinghouses, for example, which rented rooms on a more permanent basis than inns, were exempt from the duty to serve the public. But this limit was not a matter of constitutional right. It was just where the nondiscrimination obligation stopped. There was no reason to think that the courts would have interfered if the obligation had been extended further by statute.

This rule's sphere of application began to constrict around the time of the Civil War, when legal rights were for the first time extended to African Americans. At that point, courts changed the rule without saying that they were doing so. They held for the first time that most businesses had no common-law duty to serve the public. At the same time, some legislatures specifically abrogated that duty. This was the origin of the rule that now prevails throughout the United States. The Iowa Supreme Court's 1885 declaration of the right to exclude arose in the case of an establishment that refused to admit black customers:

It may be said, as a general rule, that the law does not undertake to govern or regulate the citizen in the conduct of his private business. In all matters of mere private concern he is left free to deal with whom he pleases, and to make such bargains as he is able to make with those with whom he does deal.

The Iowa court held that inns still had an obligation not to discriminate, but only five years later, the North Carolina Supreme Court declared that even innkeepers could exclude people who are "so objectionable to the patrons of the house, on account of the race to which they belong, that it would injure the business to admit them to all portions of the house."

The libertarian right to exclude, then, is racist at the core. This change in the law had the purpose, clear on the face of some of the opinions, of permitting businesses to refuse service to African Americans.

Joseph Singer observes that this shift in the common-law rule should not be understood as the lifting of a regulation of property. On the contrary, it amounted to a forcible transfer of property rights:

The courts ... took a property right belonging to the public-an easement of access to businesses open to the public with a concomitant duty on businesses to serve the public-and replaced it with a business right to exclude correlative with no right of access by members of the public, unless the business fit into a narrow range of public service companies. (26)

At the same time that it was expanding businesses' right to exclude, the courts upheld laws that required racial segregation of customers, which was an unprecedented intrusion on businesses' property rights. The courts held that these were reasonable regulations.

In a remarkable argumentative move, the courts sometimes justified these regulations in terms of freedom of association. Since white customers did not want to associate with black ones, they reasoned, the segregation rules upheld whites' freedom of association. Thus, in 1867 the Pennsylvania Supreme Court justified a railroad's forcible segregation of its passengers on this ground. The court regarded the "feeling of aversion between individuals of the different races" as a fact of life. "If a negro take his seat beside a white man or his wife or daughter, the law cannot repress the anger, or conquer the aversion which some will feel." It concluded that

following the order of Divine Providence, human authority ought not to compel these widely separated races to intermix. The right of such to be free from social contact is as clear as to be free from intermarriage. The former may be less repulsive as a condition, but not less entitled to protection as a right. When, therefore, we declare a right to maintain separate relations, as far as is reasonably practicable, but in a spirit of kindness and charity, and with due regard to equality of rights, it is not prejudice, nor caste, nor injustice of any kind, but simply to suffer men to follow the law of races established by the Creator himself, and not to compel them to intermix contrary to their instincts.

The Supreme Court made the same argument in 1896 in Plessy v. Ferguson, in which the Court upheld a statute requiring segregation of rail cars. It, too, denounced "an enforced commingling of the two races."

This is a strange argument because it indicates that association is being "compelled" unless segregation is forcibly imposed. That imposition, of course, affirmatively bars association by whites and blacks who do want to associate with one another. Nonetheless, as we shall see, the "forced association" defense of segregation persisted for a long time.

The argument becomes more intelligible if one brings forth the background assumption that any reasonable white person would want to discriminate-that the desire to be free from having to associate with blacks is a natural and normal part of being white. This is reflected in the Pennsylvania court's invocation of the "feeling of aversion" as a matter of natural "instincts." Call this the "pariah assumption"; we shall encounter it again. There is a tension within this view, since the "instinct" in question increasingly appears to need policing and reinforcement. As C. Vann Woodward noted long ago, the program of Jim Crow denounced Reconstruction as a futile attempt to change supposedly immutable social mores, while it was itself an elaborate and ambitious program of social engineering.

Eventually, the expanded common-law right to discriminate very nearly became constitutionalized. The Court in the late nineteenth century was drawn toward a libertarian line of reasoning. The most charitable reading of this libertarianism would hold that the capacity to buy and sell one's labor was the central ideological basis of the Civil War. The Thirteenth and Fourteenth Amendments, on this reading, centrally stood for nonslavery, and nonslavery centrally meant the right to own property and to freedom of contract. Rights of property and contract must presuppose some baseline. I have to know what my rights are before I can know whether the state is infringing on them. If property and contract are merely whatever the law says they are, then there are no rights, independent of the positive law, to infringe. The courts responded to this problem by taking as the baseline common-law rights. Whenever a law infringed on liberty or property without adequate justification, it was unconstitutionally depriving people of liberty or property without due process of law. As the common-law baseline shifted, so did the scope of constitutionally protected liberty.

This tendency began as early as 1856, and it received the imprimatur of the Supreme Court in 1905. In Lochner v. New York, the Court struck down a maximum-hours law as an unwarranted interference with freedom of contract. The Court thereafter struck down a wide range of regulations of business for interfering with economic liberty. Racial segregation ordinances remained untouched, but now there was a colorable argument that a law prohibiting discrimination violated rights of property and contract by forcing people to enter into economic associations that they did not desire.

In the late 1800s, laws banning racial discrimination in public accommodations were enacted in many states, reflecting the political power of black voters. These laws were attacked on freedom of association grounds as early as the 1870s. Challengers repeatedly argued that antidiscrimination laws were unconstitutional interferences with property and contract. The arguments were plausible inferences from libertarian principles, but they never prevailed.

(Continues...)

Excerpted from A Right to Discriminate?by Andrew Koppelman Tobias Barrington Wolff Copyright © 2009 by Andrew Koppelman and Tobias Barrington Wolff . Excerpted by permission.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.