The Volokh Conspiracy

As his Election Law Blog Rick Hasen has a fairly thorough summary of the just-released Justice Department Inspector General’s report on the politicization of the Civil Rights division. The bottom line: liberal and conservative employees of the division did not play well with one another. The IG largely absolves attorneys within the division of engaging in improper conduct but (as Hasen notes) there are some close calls. In most cases, however, it appears that what one side considered improper conduct was simply the other side pursuing its vision of how the division should operate, and that such decisions are within the discretion of each administration and its political appointees.

BLT has more on the report here.

Georgetown Law Professor David Cole has a terrific review of my new book, Flagrant Conduct: The Story of Lawrence v. Texas (Norton) in the April 5 issue of the NYRB. Cole presents the basic background, including what likely happened the night John Lawrence and Tyron Garner were arrested for the crime of “Homosexual Conduct,” a Texas law that forbade oral and anal sex for same-sex couples but not for opposite-sex couples. A similar Georgia law had been upheld in Bowers v. Hardwick (1986), which the Lawrence Court reversed.  Cole notes that it was unusual enough for the Court to recognize its own error:

But for it to happen in a mere seventeen years, the equivalent of a nanosecond in the “Jarndyce and Jarndyce” tempo of constitutional law, is nothing short of extraordinary. The story of how it happened is one of the great success stories of public interest law. It shows what a carefully orchestrated litigation campaign can do when supported by a passionate and growing social movement. At the same time, it offers a cautionary tale for the current controversy over the recognition of same-sex marriage, which may soon be headed, prematurely, to the Supreme Court.

The Supreme Court’s 2003 decision in Lawrence v. Texas devoted a scant paragraph to an anodyne description of the facts of the case, barely mentioned the defendants, and described their alleged conduct only as “a sexual act.” The Court was evidently more at ease with the nuances of constitutional jurisprudence than with the messy details of the case. Dale Carpenter’s Flagrant Conduct fills in the gaps, and provides a rich, meticulous, and fascinating account of the most important constitutional decision so far on the status of gays and lesbians in American society.

Unlike the Court, Carpenter revels in the factual details and the personalities involved in the struggle, as he takes us from the recesses of a private bedroom in a seedy condominium on the outskirts of Houston to the oral argument in the grand chamber of the United States Supreme Court. Along the way, he offers sharp insights into the politics, ironies, and strategies behind the Brown v. Board of Education of the gay rights movement.

Over the next couple of months I will be on an active speaking tour for my new book, Flagrant Conduct: The Story of Lawrence v. Texas, which has just been published by W.W. Norton & Co. 

Of perhaps greatest interest to readers of this blog are a couple of events coming up soon.  This Friday, March 16, I’ll be in Washington speaking at lunchtime at the Cato Institute, with commentary by Washington Post editor Charles Lane, and moderated by Cato’s David Boaz.   The following Thursday evening , March 22, I’ll be in New York speaking at the Institute for American Values, hosted by Elizabeth Marquardt, Director of the Center for Marriage and Families.

Both events are open to the public and free of charge, but require pre-registration at the links above.

That’s the subtitle Reason Magazine editors gave to this journalistic piece I wrote back in 1991 about the discriminatory origins and effects of the Davis-Bacon Act.  Reason recently posted it online, and I’m pleased to see that it holds up pretty well.  I explored the anti-black origins of Davis-Bacon in far more detail in a chapter of my book, Only One Place of Redress.

At Election Law Blog, Rick Hasen revisits the New Black Panthers Party scandal that engulfed the Department of Justice’s Civil Rights Division and became the source of largely partisan infighting on the U.S. Commission for Civil Rights. The Justice Department’s Office of Professional Responsibility concluded a report on the controversy back in March that largely confirmed my take on the matter. (I had missed news of this report, covered at TPM but largely escaping notice elsewhere.)

To recap, the original incident was no big deal. The NBPP members’ actions may have been illegal, but there’s little no evidence any actual voters were intimidated, so it’s not clear why this case was ever worth much attention. The OPR report is most enlightening  in its discussion of why the Obama Justice Department sought to narrow the injunction after it had obtained a default judgment. As Prof. Hasen notes, there were reasonable bases for the move — but no one at DoJ ever made a public effort to explain them.   DoJ officials acted as if there was something to hide, even though there wasn’t.  Had Department officials been more forthcoming, it would not have satisfied all their critics, but it would certainly have kept this tempest inside a rather small teapot.

UPDATE: After corresponding with some individuals who are closer to this case, I’ve concluded that I should have written that there was “little” evidence of actual voter intimidation, rather than “no” evidence.

On Friday the Washington Post ran an extensive story on the Justice Department’s handling of a voter intimidation case against members of the New Black Panther Party in Philadelphia.  Based upon the Post‘s reporting, which seemed quite thorough and balanced, I’ve come to the following conclusions:

1. The original case was small potatoes.  The Philadelphia district attorney’s office thought it was a “non-incident.”  Yes there were technical violations, but the Bush DoJ never identified any voters who felt intimidated by the Panthers, so it’s hard to justify making their conduct into a federal case.
2. It may not have made sense to pursue the case in the first place, but once the Justice Department obtained a default judgment, it made no sense to dismiss it and narrow the injunction.
3. As is so often the case, it’s not the crime but the cover-up.  Justice Department officials have never forthrightly explained their decision to dismiss the case and have alternately stone-walled and dissembled about the involvement of political appointees.  Had they instead come clean at the outset, this issue would have gone away and conservative complaints would have never gained traction (let alone this sort of coverage from the Post).
4. The Civil Rights Division at DoJ remains politicized and divided, as it has been for quite some time, and this cannot be good for the even-handed enforcement of federal law.

On September 14, the US Commission on Civil Rights will be hosting a conference on Civil Rights in the 21st Century that may interest many of our readers. The event will be in Washington, DC, at the National Press Club [HT: My fiancee Alison Schmauch, a special assistant/counsel at the Commission].

There will be many prominent civil rights scholars and activists from across the political spectrum among the speakers, including James Patterson, Harry Holzer, Amy Wax, Amitai Etzioni, and others. The keynote speaker will be Washington Post columnist William Raspberry. Alison points out that law students, in particular, may want to take advantage of the opportunity to meet prominent people in this field.

Here is my final contribution to the Cato Unbound mini-colloquium on libertarianism and antidiscrimination laws.

Meanwhile, my friend Bryan Caplan criticizes my argument (read the original essay here) that Title II was justified on libertarian grounds to break up the Jim Crow cartel. He argues that the logical implications of my argument that Title II suggest that the government should also have regulated the speech and marriage markets:

In fact, simple deregulation probably would have worked better for business than for marriage or speech. Both marriage and speech have a strong herding component. Most individuals don’t want to marry a member of a group that most people don’t want to marry, and most individuals don’t want to say things that most people don’t want to say. Despite weak incentives to defy the cartel, though, deregulation still worked wonders. In for-profit business, on the other hand, contrarian strategies often pay, big time. The first firm that hires qualified minorities or accepts minorities’ patronage cleans up. That’s quite an incentive for defiance.

I agree with Bryan that the segregationist cartel was very vulnerable to defectors, and, indeed, once Title II was passed, segregation in public places dissipated much more quickly and with far less violence and other resistance than almost anyone anticipated at the time.

However, the vulnerability of Jim Crow segregation was precisely the reason why white southerners who supported it were so intent on preventing any deviations from it. For example, in 1902, when Jim Crow was becoming firmly established, there were two private integrated universities in the South, one in Kentucky and one in Tennesse. By 1904, both states had passed laws forcing these universities to segregate. These universities were marginal institutions that served only a small fraction of the South’s populations, yet even border-state Kentucky couldn’t tolerate this small deviation from Jim Crow segregation.

Perhaps, as Bryan suggests, a 1964 law simply banning such segregation laws would have quickly led to the demise of the Jim Crow cartel. My reading of history, though, is that significant pockets of the South would have resisted through whatever formal and informal means were available, and that Title II was therefore necessary to break the cartel.

To follow up on Ilya’s post below, it’sworth noting that the post-World War II politician of national significance probably most beloved by libertarianish types (libertarianism was not a self-conscious movement until recently) was Sen. Robert Taft of Ohio. Taft, of course, lost the Republican presidential nomination to Eisenhower in 1952. The conservatives who eventually founded National Review supported Eisenhower, because he was an enthusiastic Cold Warrior. The more libertarian types supported Taft because he wasn’t, and because he more generally was not completely at peace with the New Deal, as Eisenhower was. The split between the Eisenhower and Taft supporters led to the demise of the first major post-war conservative intellectual journal, The Freeman (which eventually continued as the house organ of the Foundation for Economic Education).

Another dividing line between Taft and Eisenhower, though it had relatively little political salience at the time, is that Taft was an enthusiastic supporter of civil rights, whereas Eisenhower was at best lukewarm. Taft’s support for civil rights was in the great tradition of northern classical liberal Republicans going back to the 1850s. One of his most enthusiastic supporters was the African-American conservative/libertarian writer, Zora Neale Hurston.

The Taft-Eisenhower battle illuminates the fact that the more libertarian-oriented conservative tradition was civil-rights friendly. The more traditionalist National Review crowd, which took over the conservative movement, was not. Yet more reason for conservatives to be more abashed about claiming that their position on civil rights makes them superior to libertarians, and, for that matter, for some of our commenters to be a bit more circumspect about reading classical liberals out of the modern civil rights movement.

In a National Review post discussing the civil rights laws of the 1960s, Roger Clegg writes that “Conservatism is superior to libertarianism because it is less ideological and more readily acknowledges that circumstances matter.” Whatever the general validity of this claim, Clegg picked a very poor example to illustrate it.

As co-blogger David Bernstein has pointed out, numerous prominent conservatives, including many associated with National Review, actively defended racial segregation throughout the 1950s and 60s. They supported Jim Crow not only on “states’ rights” grounds but also because, as a 1957 National Review editorial put it, whites were “the advanced race” and could deny the franchise to blacks in order to protect “civilization.”

By contrast, as David also notes, most leading libertarian writers of the time – including Milton Friedman and Ayn Rand – were on the other side of this issue. Rand, for example, wrote that “[t]he Southern racists’ claim of ‘states’ rights’ is a contradiction in terms: there can be no such thing as the ‘right’ of some men to violate the rights of others.” She also denounced racism as “the lowest, most crudely primitive form of collectivism.”

Many 1960s libertarians can reasonably be criticized for underemphasizing the importance of ending segregation relative to other issues. But their record on these matters was considerably better than that of most conservative intellectuals of the day. Even if you think that libertarians were wrong to be skeptical of restrictions on purely private sector discrimination, the conservatives of the time were no better. And unlike in the case of the conservatives, libertarian opposition to private sector anti-discrimination laws was motivated by general support for a right of free association, whereas most of the conservative opponents were perfectly willing to support Jim Crow laws forbidding blacks from voluntarily associating with whites.

Some of the conservative support for segregation was simply a product of the racism endemic throughout much of society at the time. It is too often forgotten that many segregationists were big government liberals on economic issues, such as George Wallace and the recently departed Bob Byrd. But some was also linked to specific weaknesses of conservatism, such as excessive deference to tradition.

Roger Clegg, today’s National Review editors, and other modern conservatives should not be blamed for the mistakes of their predecessors fifty years ago. But black civil rights is not a good issue to focus on if you want to assert that conservatism is superior to libertarianism.

On the more general question of adjustment to “circumstances,” one of the main reasons why libertarians favor strict limits on government power is precisely because the private sector has greater ability and incentive to acquire knowledge about varying local circumstances and evaluate it in a rational way. Many conservatives emphasize these points when it comes to economic regulation, but tend to forget about them when it comes to the cultural and “moral” regulation that they often favor. Everyone agrees that “circumstances matter.” The real issue is which institutions are likely to do the best job of evaluating them and making needed adjustments.

UPDATE: In an e-mail that he asked me to post, Roger Clegg writes:

My point was that, in 2010, the fact that conservatism is less ideological than libertarianism and more willing to acknowledge that circumstances matter makes it is easier for conservatives (like me, notwithstanding my libertarian streak) than libertarians (like Rand Paul, notwithstanding his later retraction) to acknowledge the need for the 1964 Civil Rights Act. I was not suggesting that conservatives in the 1960s had a better record than libertarians;indeed, my suggestion was that the good instincts that both had also led both to the wrong conclusions then.

I appreciate the clarification. It certainly narrows the differences between us. But I still don’t agree with Clegg’s position. As I pointed out in the post, conservatives in the 1960s were far more wrong on Jim Crow than libertarians, and this was for reasons related to some general shortcomings of conservatism. Most libertarians had reached the conclusion that Jim Crow laws were unjust and should be abolished, while most conservatives had not. I also don’t agree that conservatism takes better account of circumstances than libertarianism in 2010. As comments by such scholars as Richard Epstein (quoted by Clegg himself), and co-blogger David Bernstein demonstrate, few serious libertarian commentators deny the need for the Act back in 1964, and virtually none deny that it was at least far superior to the pre-1964 status quo. Even Rand Paul, in his initial statement, didn’t reject the latter. In sum, nothing about the civil rights issue – either in 1964 or in 2010 – supports Clegg’s broad general claim that “conservatism is superior to libertarianism because it is less ideological and more readily acknowledges that circumstances matter.” And the evidence from the former period actually suggests ways in which conservatism – especially in its traditionalist variant – is in fact inferior to the libertarian alternative.

Over at Cato Unbound, Jason Kuznicki, prompted by V.C. commenters, takes up Shelley v. Kraemer, the 1948 decision in which the Supreme Court held that it was unconstitutional for state courts to enforce racially restrictive covenants. I respond, concluding that Shelley was probably correct, but that the Court could have articulated a much clearer and sounder rationale for its decision.

One thing I don’t mention over there, but I’ll point out here, was that racially restrictive covenants were an imperfect substitute for the explicit racial zoning the Supreme Court invalidated in Buchanan v. Warley in 1917. The covenants worked in some neighborhoods, but overall they were too difficult and expensive to enforce to prevent an influx of African Americans to American cities. See Michael J. Klarman, From Jim Crow to Civil Rights 262 (2004); William A. Fischel, Why Judicial Reversal of Apartheid Made a Difference, 51 Vand. L. Rev. 977, 981 (1998). In some cities, whites lobbied for a segregation laws precisely because restrictive covenants had proved ineffective in restricting black settlement. So while restrictive covenants mitigated the positive effects of Buchanan for three decades, they did not completely negate them.

UPDATE: Sheldon Richman adds his thoughts.

Today’s Washington Post reports that some civil rights organizations are still trying to determine whether (or how enthusiastically) to support Elena Kagan’s nomination to the Supreme Court.  It begins:

On the eve of Elena Kagan’s Senate confirmation hearings, her record on race in the Clinton White House and at Harvard Law School is producing discomfort among some leading civil rights organizations, leaving them struggling to decide whether they want her to join the Supreme Court.

Their reservations have introduced the first substantive division among liberals in what has otherwise been a low-key partisan debate over Kagan’s merits to replace Justice John Paul Stevens. . . .

The National Bar Association, the main organization of black lawyers, has refrained from endorsing Kagan, giving her a lukewarm rating. The group’s president, Mavis T. Thompson, said it “had some qualms” about Kagan’s statements on crack-cocaine sentencing and what it regards as her inadequate emphasis while dean at Harvard Law School on diversifying the school along racial and ethnic lines. Others have expressed reservations about Kagan’s views on affirmative action, racial profiling and immigration.

Several liberal groups that are stalwarts on civil rights matters have uncharacteristically hung back, trying to persuade Democratic senators to press her on such issues during the hearings set to begin Monday. Some, including the Mexican American Legal Defense and Educational Fund, say they are still trying to glean her beliefs from fragmentary evidence. Others have parsed Kagan’s public statements and actions and said they are uneasy.

Among other things, the story reports that some groups are put off by documents released from Kagan’s time in the Clinton Administration that reveal her disagreements with Christopher Edley on racial matters, such as whether Clinton’s race initiative should have included a ban on racial profiling.

Jeffrey Miron responds to my essay, and I respond to his, Richman’s, and Kuznicki’s responses.

Sheldon Richman responds to my Cato Unbound essay here, criticizing my position as being insufficiently libertarian, although he otherwise shares many of my underlying premises.

And Jason Kuznicki responds to my essay here, supporting Title II from a Hayekian perspective, while, unlike me, expressing no noticeable qualms about the vast expansion of the antidiscrimination edifice since 1964.

In other words, I am in the unusual position of being a moderate!

I should note that when I originally posted a link to my essay, some of our liberal VC commenters responded that they were unconvinced. So let me note that my assignment was to write an essay about “how libertarians should approach antidiscrimination laws.” In other words, my primary target audience was readers who already share the basic libertarian premise of a strong presumption against government interference in private market arrangements.

I was aware that other readers would be interested in the essay as well, and tried to correct some errors and misconceptions I’ve seen in left-wing blog posts about libertarianism and antidiscrimination laws. I explained what the general libertarianism position is, how it’s been misconstrued, and why the libertarian position is not any more dogmatic than, say, the liberal position on free speech.

That said, I wouldn’t expect any statist-leaning liberal to be persuaded by my essay that the libertarian position is correct. Strong opposition to any and all forms of (at least politically incorrect) discrimination is a defining aspect of modern American liberalism, and liberals do not share libertarians’ strong presumption against government action to right perceived social wrongs. If I were to try to persuade liberals to be more libertarian, pretty much the last place I’d start would be with antidiscrimination laws, given their centrality to modern liberals’ self-conception. (And, moreover, I point out in my essay that I think that from both a moral and tactical perspective, opposition to basic private sector antidiscrimination legislation should be rather low on the libertarian priority list. I note that if there were a sudden popular move to repeal antidiscrimination legislation unaccompanied by broader libertarian political trends, it would suggest that opposition to such laws came arose from hostility to minority groups, not from opposition to Big Government.)

So, if you are a liberal reader hostile to libertarianism, feel free to read these essays to get a better sense of the range of libertarian positions on antidiscrimination laws, and the rationales for these positions. But I don’t think anyone is trying to persuade you to abandon the core of your ideology with a 2,000 word essay on a limited topic.

I’ve written an essay for Cato Unbound, which the editors have titled “Context Matters: A Better Libertarian Approach to Antidiscrimination Law.” Over the next few days, Sheldon Richman of the Foundation for Economic Education, Jason Kuznicki of Cato, and Jeff Miron of Harvard will write comments, and then we’ll have some back and forth. Should be fun, and hopefully enlightening.