(Was Senator Santorum) Economics & Discrimination

Everything else
1

So how about laws that prevent you from selecting employees or patrons based on their race, gender, or sexual orientation? They seem to fit the “personal standards” part of your argument (i.e. the lawmakers believe in equality even if the individual in question doesn’t), so should they go, too?[/quote]

Outside of government action, which should be neutral, yeah, it should. People are allowed to be bigots and assholes. It doesn’t help anyone when you make Joe Bob the Grand Dragon serve food to someone he doesn’t want to–and it helps the black or Jewish customer least of all. I’d rather see that stuff die out because unprejudiced businesses do so much better than prejudiced ones–they have better-qualified employees and more customers. I think that forcing non-bigoted conduct onto bigots ultimately prolongs the process of getting rid of bigotry, because it doesn’t change the way anyone thinks but allows (forces) the bigot to stay in business by reaping the benefits of fairness despite his bigotry.

I think a lot of haters use government oppression as a crutch. Rather than just being exposed for the idiots they are, they get to spend all this time railing about how the government is coming down on them and forcing them to do stuff they don’t want. I say, let 'em be bigots, and I hope they starve when they go out of business. If their whole town is bigoted, let it rot. Fair and integrated businesses/towns will win out in the long run, because they have an enormous advantage in their diversity and their larger pool of employees and customers.

I realize that most people disagree, but I really believe that. The government is just foolish to outlaw crappy ideas. Crappy ideas should die their own crappy deaths.

On the other hand, if you think that prejudice hurts the person discriminated against, we’re drifting off-topic. Because then you’re still kind of agreeing with the original point–that government should only outlaw conduct that harms a victim–you’re just disagreeing as to whether there’s a victim in this case.[/quote]

This is a pretty good statement of a view I’ve heard several libertarians (notably talk show host Larry Elder) express. Rywill makes the case in such a clear fashion that I felt this issue deserved its own thread. I’ve long disagreed with the view expressed above, and here is my response:

Here is the core of the Rywill/Libertarians argument: “Fair and integrated businesses/towns will win out in the long run, because they have an enormous advantage in their diversity and their larger pool of employees and customers.”

The problem with this statement is that it completely disregards the idea that there can be very substantial market imperfections caused by the prevalence of discriminatory attitudes in a market.

Let’s take an example of a fictional southern US state in 1920. In this state, 70% of the population is white and 30% is black. The whites have 90% of the income, property and wealth, the blacks have 10%. A business that caters to whites only deprives itself of 30% of the population as a customer base and 10% the potential buying power so in theory it operates at a disadvantage as outlined in the Rywill Hypothesis ™ above.

However, IF the white population has a strong racial bias against doing business alongside blacks, then any business that caters to blacks risks losing the white business. So a business that tries to attract the entire market will end up doing business only with the black part of the economy, plus the small number of whites who ignore or rebel agains the conventional cultural mores. If the racial bias in the state is strong enough, then it may be that the ENTIRE white population will refuse to deal with any business that caters to blacks or to all customers regardless of race.

Therefore if the racial bias is strong enough, then there is strong economic incentive to operate white only businesses - the economy will not be able to exert a levelling effect on the racial biases of business b/c the biases create a large market imperfection which impair the ability of the market to level the playing field. What makes this work is the historical inequity (whites with 90% of the wealth) - a white only business only takes a small 10% hit vs a open to all business risking a 90% hit.

Also, since the vast majority of business will align along the 90/10 wealth split, the whites who do business with white only businesses will only take a small hit in their choices of whom to do business with. If their own personal racial bias is great enought to outweight the small reduction of economic choice, then they ARE acting rationally (taking into account their ir-rational prejudice as a baseline).

In other words, the libertarian hypothesis fails b/c it fails to take into account the strong effect that (irrational) bias can have on (rational) decision making.

To tie this back into the Santorum debate, there are almost certainly people in this society who would pay 10% more for a product rather than deal with a homosexual. Fortunately for us right now, those people dont have a very big share of the wealth so that anti-gay bias in business right now is ir-rational. But there have been times and places in America where a variety of racial biases would have made perfect rational sense, assuming you take a deep level of prejudice as a baseline condition in the economy.

For that reason, I feel that a certain basic level of anti-discrimination law is necessary for the overall health and stability of the country. That doesn’t mean I like every paragraph and sentence of the numerous discrimination laws on the books right now, but I think the idea of anti-discrimination law is a necessary one at this stage of our societal development.

Dan

2

Excellent post, Dan. This thing is getting a little fragmented because I replied to Mark in the other thread, but here’s the gist of my reaction:

  1. I agree with your “market imperfection” analysis, but I don’t think the market is imperfect in that way on the larger scale. Sure, some towns are bigoted, and maybe some entire states are bigoted (but I doubt any state is 90% bigoted). The country is not. People can move. Maybe it takes a generation. Maybe two. But people will go where they are most accepted, and bigots will be left with the dregs (sure, as said in the other thread, some otherwise smart people are bigots. But not most. Most bigots have other dumb qualities).

  2. The CRA does not eliminate discrimination. People find other ways to discriminate. While the CRA definitely does some good, it also does a lot of harm in the sense that it props up bigots with money and with a “cause” to fight for. I think it is helpful in the short term but harmful in the long term.

  3. Whatever the economic result of the CRA, I think people have a right to be bigots. As it stands today, Joe Bob the Grand Wizard can refuse to have any black friends, refuse to invite the Jewish neighbors over to dinner, tell his kids not to play with the Hispanic kids, etc. Even though that makes him a complete and utter asshole and idiot, it’s his right. I think he should also have the right to not have people he hates in his store.

3

Being a private bigot is different than refusing access to a public accommodation you own (sporting events, hotels, shops, diners) based on race. This backgrounder has more information.

The Civil Rights act didn’t forbid racist statements, or being a racist; it just forbid it in government action or public accommodations, so you’re arguing against a bit of a strawman here.

4

I understand that the CRA doesn’t forbid racism; that’s exactly my point. It’s a straw man because it’s a silly distinction–it makes no real sense to stop there. Either people can express their views and use their property as they wish, or not. Why should my house be treated differently than my diner?

5

As to #1, I think you are glossing over the structural impact of the kind of bias-influenced market imperfections I was talking about. In my previous example, the split between white owned businesses serving 90% of the economic base and black businesses serving the other 10% would just reinforce over time: witha smaller economic base, the black businesses would make less profit and over time the wealth on the black side of the split would shrink. Even in our much more balanced and much more diverse society, if you allowed legal discrimination you could see an impact on socioeconomics that would be self-reinforcing. Based upon my experience of the world, there is still enough economic stratification, racial bias, and emergent discrimination that the CRA is still necessary.

I do agree that remedies like the CRA are not needed forever. There may be a time when those specific laws can be amended or repealed. Like preferential-affirmative action (which I believe has outlasted its usefulness and should be retired), remedies to past discrimination should not have an infinite duration. But we are nowhere near the point that we could completely legalize public racial discrimination without severe problems.

As to #2, Jason already addressed this in another thread. I realize you feel that the CRAs help prolong discrimination by giving a scapegoat/focus to the racially biased. I respectfully disagree. Although there is probably some scapegoat effect, it is MUCH less than the self-reinforcement of bias that would ocurr if discrimination were legalized. Sure its true that plenty of people are still racist in their heart of hearts, despite all our laws. But if you strip those laws away you make it MUCH more likely that racial bias will spread and flourish - legalizing discrimination legitimizes bias just as legalizing use of a drug (alcohol, caffeine) would legitimate its use (note that I don’t see this as a reason to oppose the legalization of marijuana which I feel is a relatively benign drug, but I DO feel it is a reason to oppose legalization of heavy drugs like herion and PCP). The reason that I consider racial discrimination to be a serious social problem like heroin/PCP rather than a minor issue like marijuana is that racial bias can lead to economic marginalization (as described above) plus the long and nasty history of racial opporession and hate crimes. So, while I understand that you cannot (and should not) legislate belief, we CAN legislate behavior. And restricting discriminatory behavior is still necessary.

As to #3, I agree insofar as it applies to private activities and private rights of association. But in the public sphere, including the common marketplace of business, I strongly disagree, for the above listed reasons. I think there is a very sharp line between saying “We can’t make Joe Bob stop thinking racist thoughts and hating black people personally” and saying “We can’t stop Joe Bob from discriminating in public, in politics, and in economics”. People definitely have the right to be racist bastards in private but in the common public sphere, certain guidelines and laws are required so that all citizens can have at least a chance at equality of opportunity.

Bottom line Mr Rywill, I respectfully disagree with your entire position :). I understand the appeal of your argument - its a very optimistic ideal that market forces can cure all social ills. Unfortunately human nature doesn’t always create perfect market conditions. Which means we have to tweak the market in ways that make sense in terms of our other important principles like freedom, equality, etc.

NOTE - none of the above is an argument for racial quotas, rigid and overreaching anti-bias laws or for heavy nanny-state style market regulation. I strongly believe in balanced and limited government - I believe that both overly-regulated and under-regulated markets have problems. The devil as always is in the details.

But in terms of the principle of anti-discrimination laws we still strongly need those at least for the forseeable future.

Dan

6

As to #1, I think you’re ignoring what I was saying. I agree that the market imperfection would be self-reinforcing. But you are trying to limit the scope of the world to a single racist restaurant or town, when my point is that the racist town doesn’t exist in a vacuum. There are plenty of places to go outside that racist town. And I think once all the minorities and enlightened whites leave the microcosm of the town, the town is going to slowly die off.

As to #2, we agree that there is some scapegoat effect and I agree that legalizing an activity makes people feel more free to engage in it. I disagree that there will be economic marginalization over the long term (see above) and don’t see why the country’s history of racial oppression should allow for prospective prohibition of liberty conduct, because I don’t see what it has to do with our actual argument. I assume by “racial oppression” you mean slavery, which is already illegal and would remain so under my system; if you mean Jim Crow, that is also already illegal and would remain so under my system; if you mean racism in general, that’s just a restatement of our basic disagreement–whether it should be legal to be a racist and act on it in a way that doesn’t directly harm anyone.

The hate crime issue is a red herring, since the actions associated with hate crimes (beatings, vandalism, etc.) are already illegal. And in fact, hate crimes are the clearest example of legislating belief–I don’t see how you can say that we shouldn’t (in fact, you say we CAN’T) legislate belief but in the same breath approve of hate crime statutes (I realize you aren’t directly approving of them, but that seems to be what you’re getting at–sorry if I’m putting words in your mouth).

Finally, as to #3, you’re basically saying “I disagree for the reasons stated in 1 and 2,” so I’ll say the same :). It’s possible in theory, I know, to distinguish between “private racism” and “public racism,” although I think it’s very, very difficult to adequately draw the line and even if you do, you just end up with a nonsensical and arbitrary line.

It’s an unfair vast oversimplification to say I am advancing the idea that “market forces can cure all social ills.” I don’t believe that any more than you believe that nobody can be trusted to be fair except for politicians. I’m surprised that you would say the CRA tweaks the market in the name of “freedom,” since it’s clearly anti-freedom (but also anti-bigot, which is the point). I suppose it’s a truism that “both overly-regulated and under-regulated markets have problems,” so I don’t think that gets us very far either.

Bottom line: although I don’t think market forces will cure all social ills, I think they’re sufficient, over the long run of time, to deal with racism better than the CRA does. And even if I’m wrong, the CRA is still bad law because it subordinates one of our most precious rights–freedom of expression and association–to an ideal that is not as important: making sure people aren’t ignorant assholes to other people.

[size=2]Edit: removed a “therewith.” I have got to stop posting after work.[/size]

7

Uh, so people should have to move away from a city if they want to avoid institutionalized racism? That doesn’t sound better than the current setup.

There’s two reasons for a big bright dividing line between your house/what you say and businesses/employment:

  1. In terms of constitutional law, you can’t regulate freedom of expression or private residences (very much). The ICC, however, means they can regulate any form of “interstate commerce,” which is something public businesses engage in. No one can ban blacks from a public store or bar because they engage in interstate commerce (or could conceivably; someone just passing through could use both). By contrast, private residences (and also strictly private clubs, like Augusta National), can ban whoever they want. There’s some oddities like nondiscrimination to renters, which requires a bit of jumping through hoops to cram into the ICC, but the rational has held up to scrutiny.

  2. In terms of non-constitutional, why-is-this-ok type arguing, it’s the whole public sphere/private sphere thing. Your house isn’t very “public,” but a concert stadium sure is. Society is perfectly within its rights to enforce minimal standards in the public sphere, and especially so in the public sphere market. Most everyone agrees that you should be free to hire whoever you want in principle, but there’s all sorts of restrictions on this that society has decided are necessary, for various reasons; minimum wage laws, enforcable contracts for employment, and nondiscrimination.

Your complaint appears to be “the market would enforce these changes faster than the government can.” Yes, the market and the government both can change social norms (what we’re really arguing about here, even if influences can also run the other way), but why on earth would you think the market would go in the direction of less discrimination? It took a war to get rid of slavery; the market didn’t do a very good job there. It took social chaos to do the same for segregation.

Or maybe it’s “drawing a line between racist things we ban and racist things we don’t is inherently unjustifiable”; this is an odd complaint, as we ban all sorts of things without rooting out every occurence. To pick a particularly inflammatory example, we ban the selling and production of child pornography, but it isn’t legal to randomally break into people’s houses to see if they have any.

“Freedom of expression” and “freedom of association” are rights of individuals, not businesses. I think altogether, you’re conflating the market with society itself. The market is just a way society can decide to distribute everything. It’s an engine, not a driver, and I think the increasing fetishism its treated with is dangerous.

Freedom isn’t the right to do whatever the hell you want, either. I suspect our fundamental point of disagreement has libertarian root causes.

8

This may be the most intelligent, civilized debate I’ve ever read on the internet. I wish someone would come in here and call you guys a bunch of faggots just so I can be reassured I’m still reading a message board.

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I realize that interstate commerce is the hook that the CRA hangs on. I’ll just say that, as with many things that are regulated because of their impact on IC, I think that’s more just an excuse. For example, if someone decides to turn away all interstate visitors and also all intrastate Jews, he’s still going to face a civil rights suit (and lose). On the flip side, you can’t reasonably tell me that Augusta National has less to do with IC than some roadside diner in backwoods Alabama. And, as you’ve mentioned, even that thin excuse is ignored when the courts feel like it, as in the Shelley-type cases (no neighborhood covenants not to tell to blacks), racial steering cases, and discrimmination-in-renting cases. I mean, let’s be honest, Jason: we both know that IC is just an excuse to legislate against racism, which was clearly not contemplated by the Framers. I’m haven’t gotten into the constitutional issue because A) I don’t think it’s relevant to this discussion and B) if you’re just talking legalese, the courts have been pretty clear that IC is read extremely broadly (although somewhat less so in the last 5-10 years). In any case, I am assuming you and I can agree that racism is bad, it’s probably really not something the government was supposed to be able to legislate about originally, but the legislature and the courts have kind of invented an excuse that gives rise to more centralized government because they felt that times were changing but it would be too difficult to amend the Constitution to reflect that. In any case, the discussion we’re having is about whether it’s right and just and fair to legislate racism, not whether it’s constitutional. My appeal to things like “our right to freedom of expression and association” was meant to be just an appeal to what are widely considered Americans’ most fundamental liberties. It wasn’t meant to be an argument that the CRA should be struck down because, as a legal matter, it violates the First Amendment and nobody has ever realized it before.

Within that realm, I agree that there are easy cases for the dividing line. Yeah, a stadium is public. A house isn’t. My concern is with the huge gray area. What if I run a business out of my house and people sometimes walk up to the door and ask for my services? What if I run a “private” club that takes essentially any member as long as it’s a white male? What if I run a private club, like the Boy Scouts, that can’t be effectively competed with because it has such a well-recognized name that it dominates its field? What if I run a nonprofit public club like a book club? What if I run a small business that takes public clients, such as a law firm? I just think there are lots of hazy areas and the government must (and has) drawn the line in a very arbitrary way. This isn’t the main argument against the CRA–I understand that there are lots of laws where the government ends up having to say “Well, you were driving 56 miles an hour, and that’s too dangerous. But the guy behind you was going 55, and that’s okay.” But I think the CRA demands a particularly convoluted and arbitrary set of decisions, which is just another indicator that it’s a kind of half-ass measure that does more harm than good nowadays.

I agree that freedom of expression and association are individual rights, but individuals own these businesses and, to most small business-owners, the way they run their business is a strong reflection of their individual values. For example, when my dad owned his printing shop, he wanted to make sure everything was printed exactly right. Part of that was because he wanted repeat business, but a lot of times he had customers that were probably never coming back. He wanted the job to be right because he’s the kind of guy who likes to do things right, and it’s important to him that his business reflect that. If I ran a diner, and four guys in full KKK regalia came in and ordered lunch and started talking about how the black man is ruining this town, I’d like to be able to ask them to leave. But at the same time, I recognize that some people, for their own stupid reasons, feel just as strongly about serving blacks. I hate and disagree with their reason, but I recognize their right to run their business.

I’m sure you’re right that the root of our disagreement has a libertarian root. I’m a libertarian generally, although I don’t agree with their entire platform and I do think certain aspects of the market need to be regulated (antitrust law, contract law, etc.). You’re pretty clearly liberal, based on what I’ve seen of prior posts, so it’s natural that we’re going to clash on whether the government should force people to be better people.

Oh, and for Jim Preston’s benefit: Jim, you’re a fag.

10

I mean, let’s be honest, Jason: we both know that IC is just an excuse to legislate against racism

No argument there. I have no complaints, though, as I’m pretty happy with the current setup. You’re right about Augusta; I should have mentioned a private golf club without international television coverage.

You’re also right about the borderline cases; they’re messy, and in the way social science laws always are and numerical speed limit laws aren’t. I don’t see it as that big of an issue; it’s no more arbitrary than lots of things the government does, and it hasn’t imposed an enormous compliance cost on society. The “running a business out of your house” thing is just a subset of the general question about what sort of business regulations (zoning, handicapped access, fire escapes, whatever) apply to a business in a private home, for one, so I don’t think it’s special.

An interesting side argument is that there’s apparently no stopping the states from passing all the non-discrimination laws they want; they proceed in exactly the same manner, except instead of shoving 'em between the ICC and 1st amendment they just have to keep the laws from bumping up against the 1st. If the entire process of deciding what’s ok & private and what’s bad & public is so fraught with inconsistency, why is it ok for states to pass laws along these lines, as in your alternative suggestion?

I don’t think the government should “force people to be better people”; I just think you need to enforce minimum standards in the marketplace. I don’t support hate speech-type laws, for one, because they completely go across the fuzzy line.

Jim, I’ve heard you’re a big fan of man-on-dog with the senator.

11

Rywill: I don’t disagree with you on every single point; you and I are in general agreement on several major issues here including the importance of liberty and the fact that market factors can influence personal (racial) behavior. However, we do have some very large disagreements and I think they boil down to 2 differences we have on the issue of liberty.

1)First off, I get the sense that you consider liberty to be THE paramount principle of our society. I would respectfully point out that America was founded on not one but three core principles: liberty, equality and a representative form of government. These three ideas permeate our founding documents and form the core of our society. Specifically, when discussing civil rights legislation, the trade off is between liberty and equality. I believe that it is appropriate to restrict individual liberty to a (limited and reasonable) degree in order to secure a certain amount of equality of opportunity. (Please note I am not talking about social equality or equality of outcome - I am just talking about baseline equality in terms of access to political and economic venues). I believe there is a VERY strong equality interest in limiting liberty by prohibiting certain forms of private discrimination, when the private discrimination impacts the public sphere, in areas like hiring, doing business, renting, contracts, etc. I believe this is an area of core disagreement between you and I. We’ll just have to agree to disagree :). (I do feel that the overall history of our country strongly favors my position.)

2)You seem to be acting as if only government action can restrict freedom and you seem to ignore the fact that private acts can also restrict liberty. Sometimes, restricting liberty in certain ways can create other types of liberty, a point that you seem to either disagree with or ignore. Specifically in our racially biased state example, the white businesses who refuse black customers are restricting the liberty of those black customers by limiting their economic options. A civil rights law which restricts the freedom of businesses to discriminate on race does create more choices for the blacks in the example, which increases their freedom. I don’t take this to extremes: I don’t believe that tightly regulating all social interactions would enhance freedom. But a reasonable level of regulation can create a more free atmosphere for ALL citizens. Once again, this is an area where we disagree, and once again I feel the weight of historical example is on my side :).

In any case, you are of course free to continue believing your libertarian ideas :). (As long as they keep getting defeated at the polls.)

Dan

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Sharpe, a most excellent post!

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Dan, I think you’re right that we agree on a lot but have some fundamental disagreements.

  1. If I were to put together the three founding principles of the country, I’d say they were liberty, equality before the law, and representative government. However, I agree that those legal principles have mutated over time and that equality in general is now the second principle. I do believe that liberty is extremely important (that’s why we’re called “libertarians” :) ), although I also agree with you that there are many times when liberty must be set aside–or, more accurately, when two peoples’ liberty interests come into conflict, and one person’s liberty interest must yield to another’s. And you’re right that we just have a core disagreement regarding how much liberty a businessowner should have to give up to guarantee equality for his fellow citizens. I also agree with you that the history of our country, at least since around 1970, is behind your ideas and not mine, for whatever that’s worth.

  2. I absolutely agree that private acts can restrict freedom, if you mean in the sense that if my neighbor asks to borrow my bicycle, I can tell him “no.” I mean, I think that’s what you’re getting at–that by refusing to let people into your home, or business, or anything else that you own, you restrict the “freedom” of those people, in the sense that they cannot do whatever they want.

But I absolutely disagree with you that laws regulating that conduct increase overall freedom, which seems to be what you’re saying. Again, this is just a case where two people’s freedom interests come into conflict–my neighbor wants to use my bike, but I don’t want him to use my bike. The law needs to decide whose freedom interest is paramount. A law that says I have to give up my bike increases my neighbor’s freedom but reduces my own; a law that says I can refuse him use of my bike increases my freedom but reduces his. I don’t see how any of these laws increase freedom. They simply redistribute freedom.

On the other hand, if all you’re saying is that whenever the businessman’s freedom is reduced by the CRA, there is a concomitant increase in the patron’s freedom, I agree with you. The question is just, Is that the right way to distribute freedoms? I think no. You think yes. Since we’re talking about the same law as in #1, I still agree with you that historical precedent is on your side for the last 30 years or so. But that doesn’t change the fact that I think no, and I hope that someday enough people think no that the CRA is repealed.