Rand Paul’s comments regarding the federal ban on racial discrimination in public accommodations (Civil Rights Act of 1964, Title II) have brought the libertarian position on civil rights to public attention. (This is odd because Paul insists, “I’m not a libertarian.”)
It’s not been an entirely comfortable experience for libertarians. For obvious reasons libertarians are committed to freedom of association, which of course includes the freedom not to associate, and the right of property owners to set the rules on their property. Yet libertarians don’t want to be mistaken for racists, who have been known to (inconsistently) invoke property rights in defense of racial discrimination. (I say “inconsistently” because historically they did not object to laws requiring segregation.)
Evelyn Beatrice Hall could say, summarizing Voltaire’s views, “I disapprove of what you say, but I will defend to the death your right to say it.” But no libertarian I know relishes saying, “I disapprove of your bigotry, but I will defend to the death your right to live by it.”
Yet that is the libertarian position, and we should not shrink from it. Defending the freedom of the virtuous is easy. The test is in defending it for the vicious. What I want to show here, however, is that this is not the entire libertarian position. There’s more, and we do the philosophy – not to mention the cause of freedom – an injustice if we leave out the rest.
Let’s start with a question of some controversy. Should a libertarian even care about racism? (By racism here I mean nonviolent racist acts only.) I am not asking if people who are libertarians should care about racism, but rather: Are there specifically libertarian grounds to care about it?
Some say no, arguing that since liberty is threatened only by the initiation of physical force (and fraud), nonviolent racist conduct – repugnant as it is — is not a libertarian concern. (This is not to say libertarians wouldn’t have other reasons to object.)
But I and others disagree with that claim. I think there are good libertarian grounds to abhor racism – and not only that, but also to publicly object to it and even to take peaceful but vigorous nonstate actions to stop it.
Libertarianism and Racism
What could be a libertarian reason to oppose nonviolent racism? Charles Johnson spelled it out in The Freeman. Libertarianism is a commitment to the nonaggression principle. That principle rests on some justification. Thus it is conceivable that a principle of nonviolent action, such as racism, though not involving the initiation of force and contradicting libertarianism per se, could nevertheless contradict the justification for one’s libertarianism.
For example, a libertarian who holds his or her philosophy out of a conviction that all men and women are (or should be) equal in authority and thus none may subordinate another against his or her will (the most common justification) — that libertarian would naturally object to even nonviolent forms of subordination. Racism is just such a form (though not the only one), since existentially it entails at least an obligatory humiliating deference by members of one racial group to members of the dominant racial group. (The obligatory deference need not always be enforced by physical coercion.)
Seeing fellow human beings locked into a servile role – even if that role is not explicitly maintained by force – properly, reflexively summons in libertarians an urge to object. (I’m reminded of what H. L. Mencken said when asked what he thought of slavery: “I don’t like slavery because I don’t like slaves.”)
Too Close to Violence
Another, related, libertarian reason to oppose nonviolent racism is that it all too easily metamorphoses from subtle intimidation into outright violence. Even in a culture where racial “places” have long been established by custom and require no coercive enforcement, members of a rising generation will sooner or later defiantly reject their assigned place and demand equality of authority. What happens then? It takes little imagination to envision members of the dominant race — even if they have professed a “thin” libertarianism to that point — turning to physical force to protect their “way of life.”
It should go without saying that a libertarian protest of nonviolent racist conduct must not itself be violent. Thus a libertarian campaign against racism in public accommodations should take the form of boycotts, sit-ins, and the like, rather than assault and destruction of property. And if that’s the case, it follows that State action is also beyond the pale, since government is force. Hence the libertarian objection to government bans on segregation in privately owned places.
It would be a mistake, however, to think that ruling out government action would severely limit the scope of protest. As I’ve written elsewhere, lunch counters throughout the American south were being desegregated years before passage of the 1964 Act. How so? Through sit-ins, boycotts, and other kinds of nonviolent, nongovernmental confrontational social action. (Read moving accounts here and here.)
Yes, people got worthwhile things done without government help. Amazing, isn’t it?
Two more points in closing. First, libertarians lose credibility when they pretend to deny the obvious social distinction between a privately owned public place – such as a restaurant – and a privately owned private place – such as a home. We see this too often. A libertarian will challenge a “progressive” thus: “If you really believe there should be laws against whites-only restaurants, to be consistent you should also demand laws against whites-only house parties.”
That’s a lousy argument.
When I walk past a restaurant, in the back of my mind is the thought, “I can go in there.” I have no such thought when I walk past a home. It’s a matter of expectations reasonably derived from the function of the place. Homes and restaurants are alike in some important respects – they’re privately owned – but they’re also different in some important respects. Why deny that?
Of course, it does not follow from this distinction that government should set the rules for the restaurant. The libertarian needs to challenge incorrect inferences from the distinction – not the distinction itself.
Sit-Ins and Trespass
Finally, no doubt someone will have raised an eyebrow at my inclusion of sit-ins in the list of appropriate nonviolent forms of protest against racist conduct. Isn’t a sit-in at a private lunch counter a trespass?
It is — and the students who staged the sit-ins did not resist when they were removed by police. (Sometimes they were beaten by thugs who themselves were not subjected to police action.) The students never forced their way into any establishment. They simply entered, sat well-behaved at the counter, and waited to be served. When told they would not be served, they said through their actions, “You can remove me, but I will not help you.” (Actually, blacks could shop at Woolworth’s and similar stores; they just couldn’t sit at the lunch counters. Boycotts hurt the stores’ bottom lines.)
I could buttress this defense of sit-ins by pointing out that those stores were not operating in a free and competitive market. An entrepreneur who tried to open an integrated lunch counter across the street from Woolworth’s would likely have been thwarted by zoning, licensing, and building-inspection officers. He would have had a hard time buying supplies and equipment because the local White Citizens’ Council (the “respectable” white-collar bigots) would have “suggested” to wholesalers that doing business with the integrationist might be, shall we say, ill-advised. And if the message needed to be underscored, the Ku Klux Klan (with government’s implicit sanction and even participation) was always available for late-night calls.
Did the beneficiaries of that oppressive system really have a good trespass case against the sit-in participants?