Legal Discrimination?

I was talking recently with a friend about spending a great deal of time commenting around the Internet when I really should be writing blogposts. Now, I have no idea where those comments are, though I put a lot of thought into them.

Anyhow, I recently read a blogpost by Dave Roland, an astute policy analyst at the Show-Me Institute (where Chrissy works). Dave argues that private discrimination based on race, gender, sexuality, etc. is legally permissible though public discrimination is not. I wrote a long comment in response:

Hey, Dave. I had a few comments I was hoping you could respond to. I disagree vehemently with you and Dr. Paul about the legality of discrimination based on race, simply because it has caused, and continues to cause a significant harm to a great number of people. I am not sure on what grounds you’re justifying your libertarian analysis of this subject, but I don’t think it falls in line with traditional arguments against paternalism, such as J.S. Mill’s so-called “harm principle.”

“[T]he very idea of freedom requires us to tolerate certain decisions that we might find distasteful, to ensure that we have the liberty to make decisions that others might find distasteful…if one believes in personal liberty then one must necessarily be prepared to tolerate the fact that some individuals will use that liberty in ways that others might find offensive.”

It’s not just that we find segregation or discrimination based on race, sexual orientation, etc. “distasteful”, but that we actually believe it causes individuals significant harm for unjustifiable reasons. You did not invoke the so-called “harm principle” in your analysis, so I’m not sure which version of libertarianism you’re advocating here, but from that perspective, a great deal of harm is being caused to others. We are not suggesting that individuals should not be able to speak or move about freely, or that they should not be able to live a particular lifestyle or consume a product, but rather that they should not be allowed to engage in behavior that significantly harms a specific group of people. Indeed, the harms caused by discrimination and other wrongs done to the black community throughout the history of the United States are still significantly present today, and place the individuals within it at a significant disadvantage that is difficult to overcome and completely unjust.

“The effect might not be immediate, but eventually it will become plain that discrimination is both foolish and costly.”

This is completely ahistorical.

“A power that can be used in ways of which you approve can also be used in ways that you find repugnant.”

You see that this applies to political power, but why not economic power as well? Historical injustices against the black community led to an extreme concentration of wealth in the white community, which gave them extraordinary power to discriminate against blacks. Whether or not discrimination based on race is on the books matters not; it is equally unjust in either case. It’s irrelevant whether it was caused by economic or political power, though whites had a monopoly on both.

“The government’s sole responsibility would be to ensure that those who sought actively to harm others would be brought to justice and, if necessary, their victims compensated for any demonstrable, quantifiable injuries suffered.”

Do you believe that discrimination based on race does not harm others? Or that those who practice it do not do so intentionally?

“…those who believe that the world ought to be ordered in some particular way. But not only does it represent a denial of individual liberty, a government vested with the power to dictate decisions made by its citizens can very easily turn against those who had hoped to use it to pursue their vision of a “good” society.”

This is unfair. You believe that the world should be ordered in a particular way. Namely, you believe that no one should be denied your concept of “individual liberty.” You believe in a vision of a “good” society, something to the effect of: “A good society is one that does not violate rights X, Y, and Z (as I have construed them). A society that violates those rights is unjust. A society should not violate individual rights or liberties.”

Some people like to present themselves as skeptics. In a jousting tournament, the skeptic likes to present all other views as knights competing against each other, while she sits high above, judging and criticizing the competitors. But that’s not reality. The skeptic is a jouster just like everyone else.

You have a view of the good. You are offering prescriptive claims on how to construct social policies and what kinds of acts are morally permissible or impermissible against others.


A Facebook user posted this comment in reply:

Andrew I think that you were correct in many of the things you wrote in your response to the legal discrimination blog. Discrimination is wrong and harmful no doubt. However the blogger is correct in saying that private discrimination is still legal. If someone chooses to avoid people of different color, religion, creed, or any other difference on a personal level they are being a bit stupid but are still with in their legal rights.

I replied:

Thanks for your comment. I think the author’s comment was stronger than suggesting that we cannot completely prevent private discrimination by making it illegal. That is obviously true, in my opinion. He was suggesting that, even in cases where we could prevent it, we should not. In the case you bring up, preventing discrimination would involve violating one’s right to move about freely and her freedom to associate with people she chooses. This would be a serious violation of the right to a “pursuit of happiness”, and it’s a tradeoff that must be weighed. The anti-discrimination legislation in the Civil Rights Act is much different from the case you bring up. It deals much more with discrimination in public venues such as restaurants, bars, or schools as well as employment-based discrimination. It does not mandate that individuals associate with each other in the private realm.


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