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The Libertarian Plea to Bring Back Jim Crow: An Oxymoron

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Reprinted from neweconomicperspectives.org

My April 4, 2015 column discussed the Wall Street Journal's express endorsement of a right of merchants to discriminate against groups they detest. I explained that the WSJ was adopting the position of Richard Epstein and quoted Epstein about the policy question he found to be a "very hard question." That question was "voluntary" hereditary slavery -- he's in favor of it as a "right" essential to "liberty." But he admits that he finds it "very hard" to justify the impact of the "voluntary" contract of slavery on the "externalities" -- and yes, he is talking about children as commodities. I quoted the passage from Epstein's famous defense of discrimination in his book Forbidden Grounds to show how zany the policy views are that emerge like mold spores as soon as one endorses discrimination by merchants against groups they despise as a means of increasing "liberty."

I also noted that, according to conservatives, every leading candidate for the Republican Party's nomination for the presidency rushed to embrace the right of merchants to discriminate in the Indiana Act as originally passed. I stressed that the Indiana's Act allowed merchants to discriminate against any group -- blacks, Jews, women wearing "immodest" dress, LBGT, or Latinos as long as the merchant phrased his bigotry as a product of his personal religious views. Republican Party strategists try valiantly every couple years to wean the Party from hostility to women and minorities, but the fear of losing in the Republican primary to someone to ultra-right has so terrorized every major Republican candidate for the presidential nomination that they keep on taking symbolic and substantive actions that constitute "revealed prejudices." That same dynamic explains the Indiana legislature's Republican members' votes and Governor Mike Pence's original enthusiastic support for authorizing merchants to discriminate on the basis of factors such as race, gender, religion, or sexual orientation. It is odd that a law that would allow a merchant to discriminate against customers on the basis of their religious beliefs could be labeled a bill protecting religious freedom. One might hope the media would point this out in their articles and on radio and television rather than parroting the original Indiana Act's oxymoronic title.

I explained that this fear of the primary opponent from the ultra-right was acute in Indiana because the most respected Republican Senator, "Dick" Lugar, was annihilated in the primary by a loon. The loon was so extreme (describing women who were impregnated by their rapists as receiving a "gift" from G-d), that he lost in the general election even though Indiana is an infra-red state. The true "gift" that keeps on giving in terms of U.S. presidential elections is the Republican Party's palpable hostility to enormous numbers of Americans. Mitt Romney even gave these people a number -- he said that it was his job if elected not to represent the 47% of Americans.

My April 4 column was responding to the WSJ's claim that such discrimination by merchants represented "dissent" and that "liberals" (by which they meant often conservative major business leaders) were acting outrageously because they did not "tolerate" such "dissent." The great thing about the modern WSJ is that it only takes a few hours to start crazy and then spin into full zany. Sure enough, by April 6, 2015, William McGurn (WSJ alum gone even wackier as the New York Post's editor), had written in the WSJ calling for libertarians to go full-Epstein and endorse merchants' "right" to discriminate against groups they despise.

"Take New York University's Richard Epstein, who is arguably America's leading libertarian law professor."

Yes, there are few things better designed to increase "liberty" than to encourage merchants to refuse service to whatever groups they hate. If Richard ("voluntary hereditary slavery") Epstein is the person you wish to make the leader of your intellectual movement, your next argument will be that we need to allow merchants to discriminate against anyone they hate without the bother of inventing a "religious" pretext for that hate. Sure enough, McGurn says we need to repeal the Civil Rights laws that ban private discrimination in housing, employment, and against customers. We have to do on the grounds of "freedom." America lost its freedom when it lost Jim Crow.

"Undergirding the libertarian argument is as usual a larger argument for freedom. Far from simply privileging religious freedom, the libertarian case is built on a firm belief in the freedom of association for all Americans--and an abiding and healthy distrust about imposing anti-discrimination laws on private business providers unless they hold some kind of monopoly."

I would have written that claiming that libertarians should lead a movement calling for the return of an absolute right of merchants, employers, and landlords to discriminate against despised minorities (or majorities in the case of women) results in "undermining" rather than "undergirding" the entire concept of being a "libertarian."

Why exactly it is "healthy" to "distrust" the prevention of discrimination by merchants, employers, and landlords is not obvious to me. But then, I witnessed private sector elites force out of office the Nation's most respected financial regulator, Joe Selby. They forced him out on the "grounds" that he was gay. Federal Home Loan Bank Board Chairman Edwin Gray personally recruited Selby to be the top professional supervisor in our region where we most desperately needed him to stem an epidemic of fraud among Texas and Louisiana savings and loans. The loss of Selby cost the Nation greatly. I saw Charles Keating's lieutenants try to do the same thing in our office in San Francisco. Keating claimed that we objected to his massive looting of Lincoln Savings because we (the Federal Home Loan Bank of San Francisco) must have been gay and must have been out to destroy him because he was homophobic. I also personally experienced the "security clearances" we went through in which the questioner demanded that I inform him of which of my colleagues were LGBT. He threatened to recommend that I be denied a security clearance (essential to my job) because I refused to even respond to such a disgusting "investigation." In my experience, discrimination is one of the most damaging assaults on freedom and liberty.

McGurn emphasizes that Epstein, who supports marriage equality and loves businessmen's ambitions, has written to decry "the relentless ambitions of an ascendant gay rights movement." Yes, it is clear that we must dread the relentless ambition to be treated by merchants and employers with equal respect. The "libertarian" positions quoted by McGurn all agree that gays are way too pushy. They want to be treated as first class citizens and have their marriages treated that way. The "libertarians" decry the gays' unwillingness to accept a second class citizenship that gives them most of the same rights as non-LGBT citizens. Astonishingly, LGBT citizens are unwilling to follow this sage advice to accept second-class liberty. Even more distressingly, as we can see from the reaction to the Indiana law (a reaction that would be vastly more intense if people knew that the original "religious freedom" act could be used by merchants to deny customers service on the basis of the customer's religious beliefs (or lack thereof) -- including Muslim's and Jews denying service to women they considered to be dressed immodestly.

But heck, as Representative Cotton explained, all politics and discrimination is local. In Iran they might jail you for being LGBT, and in Jerusalem -- both the Muslim and certain Orthodox Jewish neighborhoods a women who was not dressed "modestly" or who was simply walking or riding a bus in what the Orthodox males considered the wrong manner, time, or place) would not only be refused service by the merchants, she would be verbally and physically attacked. Now that's real "religious freedom" (aka "dissent") that a McGurn "libertarian" could love. And remember, as McGurn quotes approvingly, anyone who complains about discrimination by merchants, employers, and landlords is "totalitarian."

McGurn thinks that now, in response to the public revulsion at and ridicule of Pence's Self-Inflicted Pratfall, would be a great time for "libertarians" to come out of the closet and support the repeal of the civil rights laws banning private discrimination. The "bring back Jim Crow" movement is the perfect symbolism for McGurn's oxymoronic version of "liberty."

In the course of 10 days, we have witnessed the leading Republican candidates, supposedly desperately trying to rebrand themselves (ala that great Latino Jeb Bush) as Latino-friendly, rushing to embrace a law allowing merchants to discriminate against Catholics, Jews, and Latinos and the pages of the WSJ used to urge libertarians to brand themselves as "pro-the-right-of-merchants-to discriminate" on the basis of religion, race, gender, sexual orientation, nationality, or lack of "modest" dress by women.

We will see how many libertarians want to channel their inner Epstein. By next week they will exploring the "very hard question" of whether libertarians should also start a national campaign to endorse another one of Epstein's suggested means of advancing "liberty" -- allowing "voluntary" hereditary slavery. One cannot compete with unintentional self-parody, but unintentional "libertarian" self-parody is in a class by itself.

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William K Black , J.D., Ph.D. is Associate Professor of Law and Economics at the University of Missouri-Kansas City. Bill Black has testified before the Senate Agricultural Committee on the regulation of financial derivatives and House (more...)
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