Copyright © 1999 by Paul F. deLespinasse, Adrian College
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Dr. Ferris: We've waited a long time to get something
on you. You honest men are such a problem and such
a headache. But we knew you'd slip sooner or later-
-and this is just what we wanted.
Hank Rearden: You seem to be pleased about it.
Ferris: Don't I have good reason to be?
Rearden: But, after all, I did break one of your
laws.
Ferris: Well, what do you think they're for?.... Do you really think
that we want those laws to be observed? We want them broken.
You'd better get it straight that it's not a bunch of boy
scouts you're up against--then you'll know that this is not the
age for beautiful gestures. We're after power and we mean it.
You fellows were pikers, but we know the real trick, and you'd
better get used to it. There's no way to rule innocent men.
The only power any government has is the power to crack down
on criminals. Well, when there aren't enough criminals, one makes
them. One declares so many things to be a crime that it
becomes impossible for men to live without breaking laws.
Who wants a nation of law-abiding citizens? What's there in that
for anyone? But just pass the kind of laws that can neither be observed
nor enforced nor objectively interpreted--and you create
a nation of law-breakers---and then you cash in on guilt."
(Ayn Rand, Atlas Shrugged p. 411)
A generation ago, antidiscrimination law seemed like a reasonable way to solve a very serious problem.
Pseudolaws requiring government and private actors to discriminate and segregate on the basis of race had been repealed or struck down. But these reforms had not brought dramatic improvement in the lives of black people.
Most positions of power in government and in private organizations were held by white people. Many of these people were prejudiced against black people. Prejudiced people stood in the way of hiring black people for the better jobs. The better jobs had disproportionately few black people in them.
Treating people on the basis of their race was clearly unreasonable and morally wrong. As S.I. Hayakawa, the distinguished Japanese-American semanticist, had already demonstrated before World War II, when we stereotype people it can lead us to outrageous decisions. It is stupid to think that you know everything about somebody merely because you know one thing. As Hayakawa explained it, if all you see when introduced to Mr. Miller is that he is a Jew, and you believe all Jews are the same, you might miss an opportunity to make a wonderful new friend who shares many interests with you. Or, on the other hand, you might be so busy protecting your wallet against the "greedy Jew" that you do not notice that Miller is about to run off with your wife. (Footnote 1)
Furthermore, racial prejudice and discrimination flew in the face of mainstream Judeo- Christian religion, which taught that all persons have equal sacred value.
Bad things were being done. One of the jobs of law is to prohibit people from doing bad things. It was hard to escape concluding that racial discrimination should be outlawed.
It turns out, however, that antidiscrimination law was based on analysis which failed to make necessary distinctions between government action and private action.
It is especially dangerous to yank "discrimination" out of the context of state action and into the context of private action without giving due heed to the different meanings of this word in these two contexts.
State discrimination deprives people of life, liberty, or property on the basis of pseudolaws which preclassify people in terms of their race. State discrimination is clearly intolerable. It deprives people of the equal protection of the laws, as prohibited by the Fourteenth Amendment to the U.S. Constitution. It violates the requirement, noted as far back as the 1789 French Declaration of the Rights of Man, that laws apply to everyone on the same basis. It countenances government by faction, as decried by James Madison in the Federalist Papers. It is manifestly class legislation, as described and condemned by Marx. It flies in the face of the Rousseau's requirement that laws be expressions of the general will--democratically enacted, applicable to everyone. Since the state acts by imposing sanctions on people, individuals can have no security if officials can arbitrarily determine the people upon whom sanctions will be imposed. In the context of state action, no discrimination at all can be tolerated.
The distinction between law and pseudolaw unequivocally condemns preclassification of any type in laws. Any rules in which such preclassifications appear are not laws in any real sense of the term.
The whole "Main Road" along which mankind has ascended over the centuries has lead away from societies dominated by organized crime and towards societies regulated by legitimate government. The road has led from a world of pseudolaws and towards a world of laws. It has led away from arbitrary power wielded by gangsters and towards legitimate power wielded by government officials. It has led away from state discrimination and towards regimes which are not allowed to discriminate against individuals on any basis.
Discrimination by private persons or organizations, on the other hand, may manifest itself in two quite different ways. It may take the form of inflicting sanctions (deprivations of life, liberty, or property) on people selected on the basis of their race. Or it may take the form of refusing to confer inducements on particular persons selected for this purpose on the basis of their race.
Private infliction of sanctions is intolerable no matter how the individuals hurt thereby are selected. It is a principal function of government to outlaw the private imposition of sanctions; a key part of the standard definition of government is that it seeks a monopoly of the right to legitimately impose sanctions on people. If private persons beat somebody to a pulp, therefore, in any civilized society that action will be illegal no matter what their motivation for that action. It does not matter in the slightest whether the victim was chosen on account of his race or the attacker was an "equal opportunity" bully. The action is bad, not because it was or was not taken discriminatorily, but because it was taken at all. This, then, is not what people are talking about when they speak of "private discrimination."
Private discrimination in general, then, manifests itself in the form of refusals to associate. If a job applicant is not hired, and the reason for the employer's decision not to hire is the applicant's race, this is an example of discrimination. If a person applies for entry to a certain university, the university turns down the application, and the reason for the turndown was the applicant's race, this is another example of discrimination. The private discrimination does not deprive the rejected person of life, liberty , or property. It does not impose a sanction upon him or her. The result of private discrimination, instead, is to deny an inducement to the applicant. The discrimination manifests itself in the form of a refusal to take some action that the applicant wanted, not an insistence on taking an action that the applicant feared.
Denied inducements do not set anybody back. More importantly, they do not deny anybody the ability or opportunity to enter in to a voluntary association with anybody other than the party which has turned down their proposal to associate.
For example, imagine that one employer turns me down when I apply for a job. Suppose that this employer's reason for doing this was the fact that I am of a certain race. As a result of this turndown, I do not get the inducements from this employer that I would have gotten if I got the job. Naturally, I am disappointed. But remember that the employer also pays a price: he does not receive the inducements that I would have produced by working for him. And remember further that other employers are still free to hire me. The refusal of one employer to enter into a voluntary association with me does not adversely affect my opportunities with other employers.
Even if nearly all possible employers refuse to hire me, all it takes is one who is willing to take me on, and I have a job.
The situation with discriminatory private employers, therefore, is very different from any problems I might have with a discriminatory state. If such a state were to require all employers--on pain of sanctions for violators-- to refuse to hire me, to whom could I turn? (States have been known to do this kind of thing: In today's United States, for example, it is against the law for any person or organization to hire illegal aliens.)
Private "discrimination" therefore is essentially so different from state discrimination that conclusions and evaluations arrived at in the latter context cannot uncritically be extended to cover it. However there is an even more fundamental reason why state-imposed antidiscrimination rules are an inappropriate response to private discrimination: such rules are themselves pseudolaws rather than laws, and thus they share all of the shortcomings of pseudolaws.
There is a basic and unavoidable conflict between antidiscrimination rules and the very nature of law. Laws are general rules of action enforceable by sanctions. Most andiscrimination rules, however, are pseudolaws rather than law.
Let us begin by acknowledging that there is considerable ambiguity in the expression "antidiscrimination rule." On the one hand this expression may refer to a general rule of action whose goal is to reduce or eliminate private racial discrimination. Such a rule would, of course, be a genuine law, not a pseudolaw. Since the goal of minimizing private racial discrimination is a completely proper one, such a law might well be a good one--our exact evaluation of it, as with any law, would depend on cost-benefit analysis of the rule and any possible alternatives.
An example of such a law whose goal is to minimize racial discrimination would be the open-accommodations portions of the Civil Rights Act of 1964. Although the Act was not stated in such terms, it could easily have been based on the rule: first come, first served. As applied to restaurants, hotels, motels, etc., such a rule, a law in the fullest sense of the term, could eliminate racial discrimination against travelers quite effectively. As, in fact, the 1964 Civil Rights Act did. We do not hear very much about this part of the 1964 Act very much any more, and the reason for this is that it was very effective in putting an end to the problem against which it was directed.
On the other hand, "antidiscrimination rule" may refer to a rule purporting to make "discrimination" illegal. Here, there is a major problem.
Discrimination is not an action. It is, instead, a reason for acting a certain way. It is a motivation. There is no such action as discrimination. Remember that failure to hire, to promote, or to retain an employee--actions, all!--may or may not be discriminatory. Failure by a university to admit a would-be student may or may not be discriminatory. The action is not the key to whether the antidiscrimination "law" has been violated; the legality or illegality is determined by the reasons why the action was taken. This is why such rules are pseudolaws rather than laws, since laws must be general rules of action.
If rulers can only impose sanctions upon people who violate genuine laws, this serves simultaneously to put limits on the people who are governed and upon those who govern. Those who are governed are limited because they know if they take prohibited actions they may be hit with sanctions. Those who govern are limited because, no matter how much they might like to clobber somebody with a sanction, they cannot do so unless that person takes a prohibited action.
The logic of the situation changes completely if the rulers are allowed to impose sanctions on people who have done something for reasons the rulers consider bad. Any action may be based on either good or bad motivations. Motivations are notoriously subjective; even the person who takes an action may not be entirely clear what his or her motive was for taking the action. It is even more difficult for some other person, including a government official, to ascertain the reasons why someone did something, since the determination must always be done inferentially. No one can directly observe a motivation, which resides (metaphorically, anyhow) in the heart of the actor. All other people can do is to infer what the motivation of an action "must" (might?) have been by looking at what can be seen, namely the actions and statements made by the person in question.
Statements by the person suspected of motivation-crime (thought-crime?!) of course cannot be taken at face value. If an action would be legal if taken for one reason and illegal if taken for another reason, the person who took the action would be unlikely to confess to an illegal motive even if that were exactly what led him to the action. Under these circumstances, an official or judge charged with enforcing an antidiscrimination rule inevitably has very broad discretion to determine what the motive for the action must have been. But broad discretion is exactly what the requirement that sanctions be imposed only for violating general rules of action takes away from officials. Broad discretion in officials is incompatible with personal security among the people, or so history seems to indicate. It is very dangerous to allow state action based on official evaluations of private motivations.
In fact, the invention of antidiscrimination law reversed the direction in which our civilization had been traveling along the Main Road to political progress. Antidiscrimination law moves us backwards towards more pseudolaw, towards more arbitrary treatment of people singled out by government officials. It moves us backwards towards more danger of bribery of public officials to use their discretionary powers in a way desired by people or organizations who are subject to their whims. Thus, it moves us backwards toward more demands by officials that people pay them protection money. It exposes people to being blackmailed by government officials. Antidiscrimination law is political recidivism!
Antidiscrimination law is just one more example of why "eternal vigilance" is necessary if we are to prevent government from sliding back downhill towards the conditions prevailing in its disreputable past. Perhaps there is a Second Law of Thermodynamics or Entropy rule applicable to politics as well as to physics! Left to themselves, regimes will find no lack of opportunities or excuses for repudiating the reforms that created legitimate government out of organized crime. Rulers will claim that they cannot rule in the general interest if they are not allowed to exercise "flexibility and boldness," to quote an expression used by the Supreme Court in a despicable 1960's decision that an emigrant, deported for having been a Communist before Party membership was illegal, could have his accrued rights to Social Security taken away. (Footnote 2) There appears to be no end to the possible excuses for treating different people according to different rules rather than having one set of rules that apply to everyone: "juvenile justice," alienage, the "insanity" defense, income levels.
In a good enough cause, the courts appear alarmingly willing to devalue the protection supplied by the rule of law by muddying the whole definition of law. In Terry v. Adams, (footnote 3) a Supreme Court case involving racial discrimination in voting conducted by a totally private organization to which the Fifteenth Amendment to the Constitution could not possibly apply, one Justice stated that although the actions taken by that organization may not have violated the law, they brought it "within reach of the law"!! No longer, it seemed, was the law to be seen as a line drawn by government in the sand which people could step across only at their peril. Now, if you even stepped too close to that line, the "law" (meaning government officials) could reach out, grab you by the throat, and pull you across the line! When there is a line, it is clear whether you have stepped across it or not. But how close is too close?
Writing in the Federalist Papers over two hundred years ago, Alexander Hamilton opined persuasively that the judicial branch of the proposed government under the new Constitution would be the "least dangerous branch." Unlike the Congress, it could not make new laws or control the public purse. Unlike the President, it would not have the power to enforce the law, to spend money, or to wield the sword against enemies foreign or domestic.
Hamilton was wrong. As we move backwards along the Main Road to political progress, courts have led the movement to replace laws with pseudolaws. Quick to strike down as unconstitutional pseudolaws that lack generality because of racial preclassifications, they have not struck down pseudolaws that are rules of motivation rather than rules of action. Instead, courts have seized the opportunity given to them by legislation such as the 1964 Civil Rights Act to peer judicially but not judiciously into the hearts of men. The "least dangerous branch" has moved the United States perilously close to a judicial dictatorship.
As we have seen, discrimination has very different implications when it describes state action and when it describes private action. The state acts by imposing sanctions--deprivations of life, liberty, or property-- on people, and if the people upon whom sanctions will be inflicted are chosen on the basis of their race this is completely intolerable. The state can act legitimately only against people who have violated its laws, and only general rules of action qualify as laws. A person's race is not an action at all and therefore cannot by itself violate any law. Moreover, even if a rule prohibits an action it is not a law if it only applies to that action when it is taken by a person of a given race, for such a rule is not general. A rule is general only if it applies to actions by all people without any exceptions. The "logic" of state action is the logic of sanctions, and discriminatory infliction of sanctions is the essence of pseudolaws.
Private action can take the form either of sanctions or inducements. Again, as we have already noted, private infliction of sanctions is illegitimate whether or not this is done in a discriminatory way. One of the most important functions of the state is to prohibit the private employment of sanctions. There is therefore no occasion to consider whether discriminatory private infliction of sanctions can be illegal, since such actions can be and should be illegal whether or not they were discriminatory. (Footnote 4)
The real issue regarding private action therefore lies in the arena in which inducements, not sanctions, are the actions in question. But the "logic" of inducements, which are found only in voluntary associations and trusts, makes discrimination in conferring them at worst an evil which must be tolerated to avoid much greater evils, at best a minor nuisance.
A voluntary association can be created only by the mutual consent of all of the parties to it. This fact by itself means that every individual has the means to protect himself or herself from disadvantageous voluntary associations. If a given association will make someone worse off, they can simply refuse to enter in to it. A person who is offered a job with poor working conditions and low pay is free to turn it down and will do so unless it happens to be the best available opportunity in his own opinion. An employer who interviews a qualified job applicant can turn her down unless she happens to be the best available employee in that employer's opinion.
The right to refuse to enter into a voluntary association is an intrinsic element of the very concept of a voluntary association. And of course this means that people will sometimes not be accepted into an association that they very much would like to join. Involuntary non-associations are an inevitable result of voluntary associations. And the judgment of each person involved in such a decision must be final and not subject to revision by any other person.
Refusals to associate may be for reasons that other people regard as good or bad. If Susan refuses to marry John even though he has proposed and strongly wishes to marry her, we may evaluate and even condemn her reasons (if she gives any, which she has no duty to do), but we cannot reverse her decision. Nor can any government, acting legitimately. Nor can any government reverse my decision not to accept a job offer from General Motors. If it could, we would be back to serfdom if not indeed slavery, and everybody understands this.
The same principle applies when the tables are turned, even though it is harder for many people to understand this. If Tom, Dick, and Harry want to work for General Motors and GM decides not to hire them, this decision must be final and not subject to governmental second- guessing. And this is the case no matter how bad GM's reasons for not hiring them might be.
It is, of course, too bad if somebody is turned down for an opportunity he or she regards as good. And it is even more regrettable if the other party had bad reasons for refusing to associate. But this does not justify state intervention in the situation. It is simply the downside of freedom of (voluntary) association.
There is an instructive analogy here with the downside to a market economy which clearly exists but which equally clearly does not justify getting rid of a market economy. The United States has a basically market economy, and it is all too easy to look around and see people who we are convinced are grossly overpaid for what they are doing. Different observers would no doubt have their own lists of the overpaid, but in my case it would include certain "musicians" in the rock and rap worlds, big-time professional athletes, and Hollywood stars. It is quite natural to look at such people and wonder why they are making millions of dollars a year at the same time as we ....well, let us not go into the financial details!
But to destroy the market economy in order to put an end to the undeserved fortunes of whoever happens to be on our "little list" would be very foolish. The market economy is generally beneficial, compared to all the alternatives, and to get rid of it would make nearly everybody worse off. We don't have to rejoice about the undeserved fortunes of some, indeed we are free to complain, but it is an evil that we have to live with because the alternatives are worse.
Similarly, a society in which nearly all associations are voluntary does offer opportunities for people to be kept out of particular associations for reasons which are very bad. Racial discrimination is certainly one of the possible bad reasons. But what are the alternatives? Are involuntary associations to be preferred to voluntary ones? What about the greatly heightened risks that people will be abused when associations are involuntary?
A society without any involuntary associations is, unfortunately, quite impossible. Government, or an involuntary association that is much worse than government--the quintessential protection racket--is inevitable. Absent government, private opportunity to inflict sanctions on other people is maximized, but to inflict sanctions is to create an involuntary association.
It is because of the huge potential for abuse of people in involuntary associations that special limitations must be placed on the state: the requirement of democracy and the requirement that sanctions be imposed only for violating general rules of action, laws. Laws imply, as we have seen, non-discrimination. No such special dangers, or need for special limitations, are created by voluntary associations.
Even though it is commonplace to refer to the "civil rights movement," perhaps insufficient attention has been given to what we mean when we speak of "rights." Whenever we say that someone has a right, some kind of related duty must exist for some person or persons. My right not to have my nosed punched implies a duty on the part of everybody else not to swing their fists in the vicinity of my nose. It will often clarify a situation if we seek to identify what kind of duties are related to a right that somebody claims, and exactly upon whom those duties rest.
Let us consider the "right" to buy real estate. Purchases, including purchases of real estate, take the form of a voluntary association based on the mutual consent of a buyer and a seller. The 1948 Supreme Court decision striking down state enforcement of a "restrictive covenant" in a deed prohibiting sale of a house to black people placed great weight on the fact that a voluntary association existed. The seller of the house was quite happy to sell it to a black person; the buyer was quite happy to buy it. There was a "willing buyer" and a "willing" seller, and the only thing standing in the way was a third party attempt to enforce a clause in the deed forbidding purchase or occupancy of the house by a black person. The Supreme Court simply said that state enforcement of the restrictive covenant would violate the equal protection clause of the Fourteenth Amendment. Although not expressed in so many words, the case differed little from later cases in which courts refused to enforce certain clauses in a contract on the grounds that the clauses were "contrary to public policy."
Twenty years later, the Supreme Court decided Jones v. Alfred H. Mayer in a very different way. As summarized by Donald G. Nieman:
The case involved a suit brought by a black couple
against a St. Louis real estate developer under
Title 42, section 1982 of the United States Code.
Originally enacted as part of the Civil Rights Act of
1866, section 1982 provided that all citizens were
entitled to the same right `as is enjoyed by white
citizens . . . to inherit, purchase, lease, sell,
hold, or convey real and personal property.' The
Court rejected Mayer's contention that the statute
had been aimed at the black codes and did not apply
to private action. .... Moreover, he concluded that
Congress had been fully justified in prohibiting
discrimination in the sale of real estate. `At the
very least, the freedom that Congress is empowered to
secure . . . includes the freedom to buy whatever a
white man can buy, the right to live wherever a white
man can live. . . .' (footnote 5)
The Jones decision was interesting for a number of reasons. First of all, it came four years after enactment of the Civil Rights Act of 1964, which also prohibited private racial discrimination in the sale of real estate. Yet the Court's decision was grounded on legislation enacted 98 years earlier. The 1964 legislation included procedural limitations making lawsuits difficult under some circumstances, whereas the 1866 law had no such limits.
There were good reasons why no procedural limits had been enacted in 1866; one of them was that Congress in fact did not intend for that law to "apply" to private action and could not possibly have so intended. Although the 1968 Court brushed off claims to that effect, the 1866 act was indeed merely intended to nullify any state legislation denying black people the right to enjoy and convey property in the same way that white people did. The duty created by the 1866 law rested on the state governments, and it was a negative duty: do not enact any racially-based pseudolaws pertaining to ownership, purchase, sale, etc. of property.
The Court's 1968 decision arbitrarily converted the property rights protected by the 1866 law into rights where the corresponding duty rested on private persons and organizations and was a positive duty to sell property even when the seller did not want to do so. We hear nothing in this case about a "willing seller," for this was not a case where the state was trying to prevent a transaction between a willing buyer and a willing seller. It was a case where the seller wasn't willing.
One problem with this decision is that the rights ascribed to the black couple were not "the same" as those of white people, as required by the 1866 law. No law, enacted in 1866 or at any other time, gave white people the right to buy a house over the objection of the seller. So the right conjured up by the Court in 1968 was actually greater than the rights which were supposed to be the standard under the 1866 law. "All people are equal, but some people are more equal than others"?!
Clearly, the 1866 law could not possibly have meant what the 1964 Court said it did. White people in the U.S. have never had a right to buy property in the sense announced by the Court. They have had a right to buy property if a seller agreed to sell; the right created a duty on the part of government and other third parties not to interfere in the transaction, not a duty on the part of a potential seller to agree to sell. But when the word "right" is decoupled from its specific meaning and applied arbitrarily by a court that has decided to improve on the legislature, there is no limit to the wonders that can be achieved.
The Jones cases illustrates how courts can be a dangerous forum. The civil rights movement properly decided to focus its requests for relief on the courts. The courts were available, not politically accountable, and potentially sensitive to the principles of law and justice invoked by the movement as grounds for relief. But the movement, in appealing to the courts, was playing with fire.
Ironically, by the late 1990's, critics and opponents of the civil rights movement began to score significant victories in the courts. Civil rights advocates well might have begun to reconsider the wisdom of their earlier claims that courts have nearly unlimited powers to do whatever the judges think proper. The principle of judicial supremacy had come back to haunt the movement which had helped to establish its legitimacy.
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Footnotes
1 See S.I. Hayakawa, Language in Thought and Action, 2nd Ed. New York: Harcourt, Brace & World, 1964, pp. 203-204.
2 Flemming v. Nestor, 363 U.S. 603 (1960).
3 Terry v. Adams, 345 U.S. 461 (1953).
4 See Appendix A to this book, "A Dialog on Hate Crimes" for additional discussion of this issue.
5 Donald J. Nieman, Promises to Keep: African Americans and the Constitutional Order 1776 to the Present. New York: Oxford U. Press, 1991, pp. 186-187.