A couple of months back Republican Senate candidate Rand Paul stirred up a hornets’ nest of controversy when he (briefly) indicated his opposition to Title II of the Civil Rights Act of 1964, which banned racial discrimination in “public accommodations” like restaurants and hotels. The controversy was notable not only for its utterly irrelevance to any current political issue, but also for the fact that even many libertarians distanced themselves from Paul’s position. I was out of the country at the time and so didn’t get a chance to comment, but libertarian think tank the Cato Institute recently published a libertarian defense of Title II and other civil rights legislation, which got me thinking about the issue again.
Defenders of Paul’s position (and there were a few) typically made one of two arguments; one based on an appeal to principle; one based on free market economics. The first argument is the straightforwardly libertarian one that individuals have the right to dispose of their property as they see fit, and while we might not like it if a business owner refuses to serve members of a particular racial group, it is still wrong to violate his property rights by telling him he can’t do so. I don’t have much to say about this argument, except to note how incongruously unpersuasive it is to most everyone today. Libertarianism is also criticized as being absolutist, but of course there are areas in which lots of people are willing to be comparably absolutist in their defense of individual freedom. Had Paul said, for example, that he supported the right of neo-Nazis to march through the streets of Jewish neighborhoods waving swastikas, his views would have been in keeping with those of most of the intelligentsia. Yet displaying a similar solicitude when the subject involves commercial activity is viewed as borderline crankish. The reasons for this discrepancy are probably worth further reflection, but I won’t dwell on them here.
Perhaps sensing that the argument from principle is a surefire loser, others have contended that laws such as Title II weren’t really necessary to end private discrimination by businesses. According to this argument, any business that turned away a substantial number of potential customers would soon find itself out of business, and absent legal mandates segregation would simply collapse under its own weight (call it the ‘everyone’s money is the same color’ argument).
Many non-libertarians (and a few libertarians as too) appear to find this argument ludicrous. To quote The American Prospect’s Adam Serwer:
Paul’s free market fundamentalism is being expressed after decades of social transformation that the Civil Rights Act helped create, and so the hell of segregation is but a mere abstraction, difficult to remember and easy to dismiss as belonging only to its time. It’s much easier now to say that “the market would handle it.” But it didn’t, and it wouldn’t.
Similarly, in his Cato piece, David Bernstein argues that Title II was necessary to overcome a “white supremacist cartel” that was in control of the South in the 1960s:
Jim Crow segregation involved the equivalent of a white supremacist cartel. The cartel was enforced not just by overt government regulation like segregation laws, but also by the implicit threat of private violence and extra-legal harassment of anyone who challenged the racist status quo. This violence and extra-legal harassment was often undertaken with the approval of local officials; the latter, in fact, were often the perpetrators.
To break the southern Jim Crow cartel there were two options: (1) a federal law invalidating Jim Crow laws, along with a massive federal takeover of local government to prevent violence and threats against, and extralegal harassment of, those who chose to integrate; or (2) a federal law banning discrimination by private parties, so that threats of violence and harassment would generally be met with an appeal to the potential victim’s obligation to obey federal law. The former option was arguably more appealing from a libertarian perspective, but it was completely impractical. Not surprisingly, many prominent libertarians who have commented on the issue recently have stated that they would have voted for the 1964 Civil Rights Act, including its public accommodations provisions.
Curiously, both Serwer and Bernstein overlook a key piece of evidence supporting Paul’s position, namely that Title II only applied to certain types of businesses. Under Title II of the Civil Rights Act, racial discrimination was prohibited for restaurants, but not grocery stores, for hotels, but not department stores, for movie theaters, but not book stores. Some gas stations were prohibited from declining service based on race (e.g. if the gas station served food), while others remained free to do so. Indeed, so far as I am aware, if Barnes and Noble or Wal-Mart were to announce tomorrow that they weren’t going to serve blacks, nothing in Title II would prevent them from doing so.
If it was true, as Bernstein and Serwer claim, that Title II was necessary to break down segregation and discrimination by private businesses, then we should have seen a divergence after the Civil Rights Act was passed in the level of discrimination in businesses that qualified as public accommodations as opposed to businesses where Title II did not apply. On the other hand, if Paul is right, and market forces are sufficient to break down segregation in the absent of legal support, then we ought to expect discrimination to be reduced for both types of businesses at about the same rate.
As far as I am aware, the historical record supports Paul on this point. Racial discrimination lessened in public accommodation after passage of the Civil Rights Act, but it lessened about as quickly for non-public accommodation as well. If there was some divergence in the level of discrimination between Title II and non-Title II businesses such that, say, blacks could go to the movies freely but couldn’t buy a TV at the local department store, I’ve never heard of it.