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Kay Hymowitz on Libertarianism and Civil Rights:

Happy New Year to all our Jewish readers. Through the magic of technology, I'm posting tonight via Powerblogs' "publish later" function a post I wrote earlier. But in observance of the holiday, I won't be responding to comments.

Kay Hymowitz has an essay in the Wall Street Journal on libertarianism, which at times is fair-minded (especially when she praises "the law professors who write The Volokh Conspiracy"!), and at times, not so much.

Here's an example of the not-so-much: "To the extent that libertarians are remembered at all for their role in the civil-rights era, it is not for marching on Selma but rather for their enthusiastic support of states' rights and the freedom of white racists to associate with one another."

Libertarians, it's true, deserve criticism for not being more involved in opposing Jim Crow. There was a fair amount of moral blindness there, not uncommon to whites of the era.

But Hymowitz's point is nevertheless exaggerated, at best. Certainly, libertarians did, and still do, support the right of freedom of association, but it's rather uncharitable to call this the "freedom of white racists to associate with one another." The principle of freedom of association existed and exists independently of the particular issues surrounding the civil rights movement. Unlike, say, conservatives, (to whom Hymowitz implicitly and unfavorably compares libertarians), libertarians did not abandon their belief in freedom of association once the Title VII passed and discrimination against blacks was off the table politically. One can argue, therefore, perhaps somewhat unfairly, that conservatives were less interested in freedom of association, and more interested in stifling the civil rights movement. One can't make that argument about libertarians, who continue to support the rights of everyone from the Nation of Islam to Utah polygamists to the Boy Scouts to religious "cults" to S&M fetishists to associate to their hearts content. In short, (some) conservatives, it seems, supported the "freedom of white racists to associate with one another." Libertarians supported freedom of association.

Similarly, since when were libertarians known for their support of "states' rights?" By far the two most prominent libertarian essays on civil rights in the early 1960s were Ayn Rand's "Racism" and Milton Friedman's chapter on discrimination in Capitalism and Freedom. Neither expresses any support for "states' rights."

In fact, Rand 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." Friedman, not surprisingly, thought that school choice was the best solution to the problem of segregation in schools, both southern and northern. But he also clearly states that given the choice of "enforced segregation or enforced integration, I myself would find it impossible not to choose integration." Enforced integration, of course, was the anti-states' rights position of the time.

By contrast, reading the leading conservative organ of the time, the National Review, discussing Jim Crow in the South is enough to make one sick to one's stomach. Here's a quote from a 1957 editorial:

The central question that emerges--and it is not a parliamentary question or a question that is answered by merely consulting a catalog of the rights of American citizens, born Equal--is whether the White community in the South is entitled to take such measures as are necessary to prevail, politically and culturally, in areas in which it does not predominate numerically? The sobering answer is Yes--the White community is so entitled because, for the time being, it is the advanced race.

And here's a quote from an essay by Richard Weaver, a longtime NR favorite, also in 1957: "'Integration' and 'Communization' are, after all, pretty closely synonymous. In light of what is happening today, the first may be little more than a euphemism for the second. It does not take many steps to get from the 'integrating' of facilities to the 'communizing' of facilities, if the impulse is there." And here's James Kilpatrick in NR, also in 1957: "the State of Arkansas and Orval Faubus are wholly in the right; they have acted lawfully; they are entitled to those great presumptions of the law which underlie the whole of our judicial tradition."

Admittedly, NR's writers were not uniform in their views, and they mellowed overall during the early 1960s, but it was still not exceptional at this time to find frankly racist views expressed by certain leading conservative thinkers of the era; I haven't looked at it for a long time, but I remember being pretty shocked when I read James Burnham's Suicide of the West as a college student, based on NR's consistent recommendation.

In any event, the point it not to condemn conservatism, or conservatives, for their past misdeeds. Rather, Hymowitz's article is in large part a critique of libertarianism for being insufficiently attuned to the importance of conservative values. She makes some reasonable points, but her implication that libertarians can learn from conservatives because libertarians were insensitive to racial injustice, well, that's a little much.

Dave Griffith (mail):
Not to admit too much historical blindness, but did libertarianism per se even exist in the pre-Voting-Rights-Act era? Admittedly, it was before I was born, and I realize both Mises and Hayek wrote before then, but I always assumed that most of libertarian thought only made moral sense after the end of Jim Crow, but before the degradataions of affirmative action.
9.13.2007 12:24am
John (mail):
How sad that people still "argue" that the adherence to a principle, such as freedom of association, that would support conduct such as the freedom of bad people to associate, means that the adherent supports each item of conduct his principle allows. The adherent supports the principle because on balance it does far more good than harm--not because it always produces good.

That, after all, is the concept behind all of our First Amendment jurisprudence--sure, the Amendment allows bigots to speak; on balance, however, it does far more good than bad. Just because you support the First Amendment doesn't mean you are a supporter of bigots.

This is not a hard point to grasp, and I assume Kay Hymowitz knows it. Her remarks thus apppear just to be mean spirited and dopey, rather than informed by anything sensible.
9.13.2007 12:24am
whit:
what has always bothered me in regards to freedom of association is the way that judges can completely remove it merely because somebody is arrested for domestic violence crimes.

in my jurisdiction, judges will issue no contact orders EVEN AGAINST THE WISHES OF THE ALLEGED VICTIM when a person is arrested for domestic violence. this completely removes the right of free association merely because there is PC that a DV crime occurred.

i've never understood why more libertarians don't come out against this.

i have had several cases where i had to arrest a respondent in a protective order against the wishes of the "petitioner" and even when the petitioner didn't want the order in place. a judge decided that the person was in danger, so can step in and unilaterally remove the right to free association.

is DV such a Politically Correct crime such that nobody will criticize these practices?

i am always amazed at how so many freedom lovin' folks criticize the war on drugs as eroding civil liberties but NEVER mention the war against domestic violence, which ime has been worse. what more basic right is there than the right of two people to hang out with each other

heck, even mary kay letournea and vili latu (sp?) eventually got that right.
9.13.2007 12:35am
Stating the Obvious (mail):
To Dave Griffith:

Yes, libertarianism does historically pre-date even the Voting Rights Act. I hear some can trace libertarian thought back even to the 1950s...

:-)
9.13.2007 12:36am
Thomass:
Dave Griffith (mail):

"Not to admit too much historical blindness, but did libertarianism per se even exist in the pre-Voting-Rights-Act era?"

I think libertarianism is older than American conservatism. Even books on the history of the conservative movement usually start the clock with the libertarian revolt against FDR's progressive collectivism.

Also, libertarianism has ties [or just is] to classical liberalism.. The ideology of the founders...
9.13.2007 12:47am
Mark Field (mail):

Similarly, since when were libertarians known for their support of "states' rights?"


There was a thread here about a year ago when I asked why libertarians would necessarily oppose federal regulation of the economy. That is, putting aside disputes about the propriety of specific regulations, what difference did it make whether state governments or the federal government did the regulating? I even went on to suggest that there were advantages for the libertarian in having just one source of regulation.

IIRC, Prof. Somin argued quite strongly for the benefit of state regulation, as did others (David Nieporent?). Now, that certainly doesn't make any of them a defender of "states rights", which is a term loaded with all kinds of historical baggage. But it does seem to be consistent with a distributed federal system, i.e., the sort of thing true "states rights" proponents might well defend.

Your quotes from Rand and Friedman are fine as far as they go, but I wonder whether they or others supported federal intervention against discrimination such as the Civil Rights Act or Voting Rights Act. Goldwater, remember, did not, and he appealed quite strongly to libertarians. I think you'll need more evidence to demonstrate that libertarians in general took the side of the angels on this one.
9.13.2007 12:49am
PJT:
Great post, could not agree more
9.13.2007 1:28am
unhyphenatedconservative (mail):
Whit, have you ever worked with DV victims, especially those who have undergone longterm abuse?
9.13.2007 1:50am
Richard A. (mail):
Goldwater opposed the civil rights act on the grounds, still valid today, that it created positive "rights" that are actually privileges of one citizen against another, as opposed to negative rights, of the citizen against the government.
"I am unalterably opposed to discrimination of any sort," he said in voting against it, but he said that it contained "provisions that fly in the face of the constitution." He cited the fair employment provisions and the public accommodations sections, both of which are on shaky ground in light of any strict reading of the constitution.
Again, these are shaky on positive-rights grounds rather than states' rights grounds.
9.13.2007 1:56am
David M. Nieporent (www):
But Mark, you're conflating governmental discrimination and private discrimination. Libertarianism cannot tolerate governmental discrimination, of course -- but the '64 Civil Rights Act also covered purely private acts. My understanding of Goldwater's position was that he opposed the CRA because of the latter, not the former. (He supported both the '57 and '60 Acts, both of which applied only to governmental discrimination.)
9.13.2007 2:20am
Ilya Somin:
Prof. Somin argued quite strongly for the benefit of state regulation, as did others

To clarify my stance, I did not argue "for the benefit of state regulation." Rather, I argued that state regulation is, in a wide range of instances, less dangerous than federal regulation. What I defended was not "state regulation," but limits on federal government power.
9.13.2007 3:10am
Dr. Opine (mail):
I don't accept the premise of any of this. Labels are for simpletons...call yourself a liberal, a conservative, a libertarian, et al, you're just boxing yourself into positions. Take stances on actual issues instead of being doctrinaire about your views and then we can take you seriously. Cheers.
9.13.2007 4:22am
Ken Arromdee:
Whit, have you ever worked with DV victims, especially those who have undergone longterm abuse?

Does it matter? You could just as well give the same retort if the question was whether we should simply shoot domestic violence suspects without a trial. Certainly letting the police shoot all such suspects would reduce domestic violence. The cost to innocent people who happen to be labelled as suspects, however, is so high that we don't do it no matter how many victims it would help.

There are plenty of things we could do to suspects which would help people, whether domestic violence victims or anyone else, against the guilty--at the cost of hurting the innocent. Normally, we don't do those things. And it would seem obvious that giving the police the ability to keep two arbitrary people apart without a trial and contrary to both of their wishes is pretty likely to cause a lot of damage to the innocent.
9.13.2007 10:17am
DavidAWW (mail):
She makes some reasonable points, but her implication that libertarians can learn from conservatives because libertarians were insensitive to racial injustice, well, that's a little much.

True, not all libertarians. But NR would not now defend the sort of thing that was printed in the 1950s and 1960s about African Americans and civil rights.

There are some libertarians, (not all mind you but some), who are quite comfortable sounding not unlike those unsavory NR editorials and articles. Today!

Tom Palmer (of the Cato Institute) has a host of examples of racist libertarianism on his site.

http://www.tomgpalmer.com/archives/cat_the_fever_swamp.php

People can use libertarian arguments to bolster their racist agendas. Lester Maddox (southern segregationist in the 1960s) defended keeping African Americans out of his restaurant with arguments about states rights and the freedom to associate that sound just like a libertarian manifesto.
9.13.2007 10:37am
Blackadder (mail):
Murray Rothbard and Frank Meyer are two libertarian state's rights supporters who come to mind.

Also, the defense of Goldwater as a non-state's rights guy strikes me as being fairly weak. He opposed the '64 Act because he thought it exceeded the powers of the federal government. That's a state's rights argument.
9.13.2007 11:32am
KevinM:
I like your use of the publish-later feature to comply with your religious obligations. Ingenious, and well within the tradition as I understand it. Do you know if anybody has purposely marketed an electronic workaround for sabbatarian rules? "Shab-bot?" "Shabbosware?" "E-goy?"
(Lest I be misunderstood, just kidding around. A happy new year to you and your family.)
9.13.2007 11:51am
whit:
"Whit, have you ever worked with DV victims, especially those who have undergone longterm abuse"

yes.

of course.

i've also worked with people whose lives have been destroyed by drug dealers and drug use. does that mean we throw away civil rights because drugs are bad?

same point.

and again, i am talking about cases where the "victim" doesn't WANT an order, doesn't REQUEST an order and WANTS the right to "hang out" with the alleged offender. the state steps in and says "im your daddy. you are not an adult. you are not a free citizen. you have committed no crime, but i am going to tell you that you can't hang out with this person"

again, that's the point.
9.13.2007 12:36pm
Mark Field (mail):

To clarify my stance, I did not argue "for the benefit of state regulation." Rather, I argued that state regulation is, in a wide range of instances, less dangerous than federal regulation. What I defended was not "state regulation," but limits on federal government power.


That's how I understood your position and how I was trying to describe it. Not very well, apparently.


But Mark, you're conflating governmental discrimination and private discrimination. Libertarianism cannot tolerate governmental discrimination, of course -- but the '64 Civil Rights Act also covered purely private acts. My understanding of Goldwater's position was that he opposed the CRA because of the latter, not the former. (He supported both the '57 and '60 Acts, both of which applied only to governmental discrimination.)


I don't think this argument provides much support for libertarians. As others have pointed out, and in the context of those times, it's the same thing Lester Maddox said.
9.13.2007 12:42pm
whit:
also, the DV advocacy industry is just like any other industry (drug warriors industry, etc.) in that it has a vested interest in overstating domestic violence, creating work, and creating victims even when there really isn;t a victim

there are cadres of victim advocates whose entire philosophy (i have seen this endlessly) is that ALL men are potential abusers, and women never lie about domestic violence (or rape... see: Duke).

any time ideological warriors enter the law enforcement field... bad things happen
9.13.2007 12:43pm
CatoRenasci (mail):
Libertarian ideas have been around a very long time, though they were basically called 'liberal' before Wilson's time.

The libertarian (and indeed classical liberal) take on civil rights, as I have always understood it, is that laws like Jim Crow, using the power of the state to enforce discrimination are unacceptable - the state must not discriminate. However, what private citizens do, and whom they choose to associate with, is up to them.

Thus, one could opposed mandated segregation in schools as a libertarian, but oppose any attempt to close private schools that discriminate.
9.13.2007 2:50pm
LibertarianLurker (mail):
Mark Field, saying that libertarians shouldn't support freedom of association because Lester Maddox used the same argument is exactly analogous to people who argued against integration because the Commies were for it.
9.13.2007 3:34pm
Billy Beck (www):
Dave Griffith -- Do you remember when you were a little boy and you used to watch "Little House on the Prairie" on TV? Well, Laura Ingalls Wilder was a real person, and her daughter was Rose Wilder Lane.

Mark Field -- Let me try to explain something to you: freedom doesn't mean that anyone has to like you. They just have to leave you alone. That's exactly what should have happened to that asshole Lester Maddox and his restaurant.

Get it?
9.13.2007 3:43pm
DavidAWW (mail):
But aren't you (billy and lurker) agreeing with Maddox insofar as he wanted the state to protect his right to discriminate against African Americans who wanted to eat lunch at his restaurant?

The libertarian's freedom of association, if taken as some sort of absolute value, would want the state to protect Mr. Maddox's 'right' to associate with who he wanted to with regards to his business.
9.13.2007 4:39pm
Mark Field (mail):

Mark Field, saying that libertarians shouldn't support freedom of association because Lester Maddox used the same argument is exactly analogous to people who argued against integration because the Commies were for it.


This is true to that limited extent, but is not the point I was making. DavidAWW understood it correctly.

Remember that the point of the post was to distinguish between libertarians and conservatives in their attitudes towards the Civil Rights Movement. If both supported the right of Lester Maddox to refuse service to blacks, albeit for different reasons, that distinction is more blurred than the post suggested.


Mark Field -- Let me try to explain something to you: freedom doesn't mean that anyone has to like you. They just have to leave you alone. That's exactly what should have happened to that asshole Lester Maddox and his restaurant.

Get it?


Leaving aside the condescension, no, I don't get it. The context of civil rights in the South was such that if the law had taken the libertarian route -- that is, had protected Maddox in his right to refuse service to blacks -- the South would still be segregated today for the most part. That's because public opinion in the South supported an apartheid system in which blacks received inferior treatment. It was a method of racial control enforced socially, not by government. It was only because government intervened that we were able to break this dysfunctional social practice.
9.13.2007 4:51pm
Billy Beck (www):
"But aren't you (billy and lurker) agreeing with Maddox insofar as he wanted the state to protect his right to discriminate against African Americans who wanted to eat lunch at his restaurant?

The libertarian's freedom of association, if taken as some sort of absolute value, would want the state to protect Mr. Maddox's 'right' to associate with who he wanted to with regards to his business.


This is absolutely astounding to me.

You are talking about private property, sir.

Can you understand this?
9.13.2007 4:59pm
Billy Beck (www):
"The context of civil rights in the South was such that if the law had taken the libertarian route -- that is, had protected Maddox in his right to refuse service to blacks -- the South would still be segregated today for the most part."

Bullshit.

The overwhelming mass of segregation that you're talking about was enforced at law, and no "libertarian" would ever stand up for that.

There is a categorical difference between mandating racial segregation at law, and leaving people alone to manage their own social relations according to their own values, even if you and I don't like them.
9.13.2007 5:05pm
whit:
"The libertarian's freedom of association, if taken as some sort of absolute value, would want the state to protect Mr. Maddox's 'right' to associate with who he wanted to with regards to his business. "

that is a "pure" libertarian viewpoint. personally, i'm NOT a pure libertarian, but it seems to me that there is a libertarian argument to be made for that. i have heard some folks over at reason.com make the argument that any business owner should have that right to decline service for ANY reason, to include racial stuff. they don't believe this because they are racist. they believe this because in a pure libertarian sense, the govt. should not have a say in those decisions.

similarly, i am a devoted capitalist pig, but i am not a "pure" (laissez faire) capitalist. i believe in some regulation and a social safety net.
9.13.2007 5:11pm
DavidAWW (mail):
There is a categorical difference between mandating racial segregation at law, and leaving people alone to manage their own social relations according to their own values, even if you and I don't like them.

Agreed.

But private segregation, given protection by the state, is itself an odious thing. I think, other things being equal, the state has the right to discourage it.
9.13.2007 5:18pm
LibertarianLurker (mail):
The libertarian's freedom of association, if taken as some sort of absolute value, would want the state to protect Mr. Maddox's 'right' to associate with who he wanted to with regards to his business.

It also supports the "right" of a private university to engage in as much affirmative action as it wants to. So what? Unless you think that libertarians were MOTIVATED by support for Jim Crow, the fact that they have a principle they were willing to apply consistently is hardly grounds for attacking them.

As for segregation in the South, it was clearly supported by a combination of law, private preferences, and the threat of private violence unpunished by law. I think it needed at least two of those pillars to continue. The problem for libertarians is that the Goldwater position only undermined one of those pillars, and only partially, because it was very difficult to get at subtle government action
9.13.2007 5:20pm
Billy Beck (www):
"But private segregation, given protection by the state is itself an odious thing."

Oh, really?

I don't let people named "David" into my house. That's because it's my house, and I make the rules. To the extent that the state protects private property these days (a sick laugh), then all it has to say about the matter is that it's my house and I get to make the rules.

Now what?
9.13.2007 5:30pm
DavidAWW (mail):
Unless you think that libertarians were MOTIVATED by support for Jim Crow, the fact that they have a principle they were willing to apply consistently is hardly grounds for attacking them.

I'm not attacking all libertarians. I'm attacking, if that's the right word, a principle--that the right of association is some sort of absolute principle. And, of course, those libertarians who use the principle to bolster their own animus against any of the civil rights reforms of the late 20th century.
9.13.2007 5:32pm
Mark Field (mail):

The overwhelming mass of segregation that you're talking about was enforced at law, and no "libertarian" would ever stand up for that.


Your opening clause is simply false. LibertarianLurker has it pretty much right: "As for segregation in the South, it was clearly supported by a combination of law, private preferences, and the threat of private violence unpunished by law. I think it needed at least two of those pillars to continue. The problem for libertarians is that the Goldwater position only undermined one of those pillars, and only partially, because it was very difficult to get at subtle government action."

My disagreement with LL is limited to whether segregation could have survived based on just one pillar, namely private preferences. While it's unprovable either way -- and of course the subsidiary issue of "how long?" is also important and unknowable -- I strongly believe private preferences a la Lester Maddox would have perpetuated segregation probably even until today.

Anecdotes have limited value, but I'll relate the story of another lawyer. He had a case in the mid-80s in southern GA. After court one day, he went into a small cafe near the federal courthouse. There was no hostess, so he started to walk over to an empty table. A waitress immediately came up and directed him to a different table on the other side of the restaurant. It didn't matter to him so he went with her. After deciding what to eat, he put down the menu and began looking around the restaurant. Oddly enough, all the black patrons were on the side where he started to sit down and all the white patrons were on the side where the waitress directed him. As new customers came in (all locals), that seating pattern never changed.

The other important factor is that of private violence unpunished by the state. It's only recently that federal prosecutors have been able to charge and convict some of the worst murderers of the 1960s. Juries in the South simply would not convict those accused of violence against blacks. As long as that remained the case, it would have been nearly impossible to eliminate segregation even by striking down the formal statutory support.
9.13.2007 6:02pm
Billy Beck (www):
"Your opening clause is simply false.

It most certainly is not.

"LibertarianLurker has it pretty much right: 'As for segregation in the South, it was clearly supported by a combination of law, private preferences, and the threat of private violence unpunished by law.'"

That's right, and of the three, two of them existed at the explicit or implicit sanction of the state. The first of the three is patently obvious. So is the second one. The third one ("private violence unpunished at law") actually represents the attitude of law (listen: that sun-glassed Southern sheriff stereotype exists for good historical reason) enforced by 'private' individuals with the obviously implicit sanction of the state, which almost always refused to protect and/or redeem the rights of these criminals' victims.

"My disagreement with LL is limited to whether segregation could have survived based on just one pillar, namely private preferences. While it's unprovable either way -- and of course the subsidiary issue of 'how long?' is also important and unknowable -- I strongly believe private preferences a la Lester Maddox would have perpetuated segregation probably even until today."

So what?

Here's a clue, babe: "private preferences" along those lines still exist today, despite your government. That's because they're "private": they exist where no government can ever reach them. And, in the meantime, we've raised entire generations who are ready and willing to ditch whole principles behind the ethical and political confusion.
9.13.2007 6:50pm
unhyphenatedconservative (mail):
Whit,

I would not classify myself as a DV industry or advocate. I do family law and I have represented both victims and those who are accused of DV. False allegations piss me off and I delight in nothing more than hammering the perpetrators.

That said, do you deny the dynamic in DV cases that the victim can become acclimated to the violence and even view it as normal? Would you not agree that in such cases, the individual can arguably be said to not have the level of free will which a judge should look at dispositively?
9.13.2007 8:22pm
Mark Field (mail):

That's right, and of the three, two of them existed at the explicit or implicit sanction of the state. The first of the three is patently obvious. So is the second one. The third one ("private violence unpunished at law") actually represents the attitude of law (listen: that sun-glassed Southern sheriff stereotype exists for good historical reason) enforced by 'private' individuals with the obviously implicit sanction of the state, which almost always refused to protect and/or redeem the rights of these criminals' victims.


Now your argument is incoherent. You want to count government inaction when it comes to eliminating some segregation (private violence in support of segregation), but don't want to count it when it comes to eliminating other segregation (Maddox's refusal to serve blacks, backed up by his threat of violence).

You can't have it both ways. If government inaction counts as government support for segregation, then it counts that way for Lester Maddox also.
9.13.2007 8:39pm
LibertarianLurker (mail):
Well, that's absurd. Under First Amendment law, government inaction toward hate speech does not count as endorsement of hate speech, but the government's refusal to protect people who engage in "love speech" from violence while protecting those who engage in hate speech is an illict endorsement of hate speech.

By your theory, any time the government "allows" someone to say something offensive or controversial, the government is endorsing it.
9.13.2007 9:00pm
Billy Beck (www):
"You want to count government inaction when it comes to eliminating some segregation (private violence in support of segregation), but don't want to count it when it comes to eliminating other segregation (Maddox's refusal to serve blacks, backed up by his threat of violence)."

The crucial concept here is not "segregation", but rights.

There is nothing "incoherent" about my argument, and you are very confused.
9.13.2007 9:37pm
Mark Field (mail):

Well, that's absurd. Under First Amendment law, government inaction toward hate speech does not count as endorsement of hate speech, but the government's refusal to protect people who engage in "love speech" from violence while protecting those who engage in hate speech is an illict endorsement of hate speech.


LL, I agree (with some qualifications). I'm pointing out the consequence of BB's argument, not making my own.
9.13.2007 10:07pm
J. F. Thomas (mail):
The crucial concept here is not "segregation", but rights.

So does your libertarian right to free association include restrictive covenants in leases and deeds that prevents the sale of property to minorities? These were very common and you will still occasionally find them--of course they are completely invalid because of civil rights laws. Wouldn't such clauses have to be enforced by the courts? Now the government has once again become directly involved in enforcing racial discrimination. It is not simply a matter of I can do as I please with my own property.
9.14.2007 12:39am
Billy Beck (www):
"So does your libertarian right to free association include restrictive covenants in leases and deeds that prevents the sale of property to minorities?"

Leases are one thing. Deeds are quite another. If I buy a property, then it's mine to do with as I bloody well please. That's what "ownership" is.

"Wouldn't such clauses have to be enforced by the courts?"

Against what?
9.14.2007 1:07am
unhyphenatedconservative (mail):
JF Thomas,

Your argument that "if the Courts enforce it, then it's state action" is absurd. By the same logic, if someone says something offensive in my home, refuses to leave and then I have him prosecuted for trespass, then the courts are abridging his First Amendment rights.
9.14.2007 1:54am
J. F. Thomas (mail):
Leases are one thing. Deeds are quite another. If I buy a property, then it's mine to do with as I bloody well please. That's what "ownership" is.

Then you don't know the first thing about property law. Deeds are full of restrictive covenants that you agree to be bound by that carry with the deed. That you will not transfer the property to "colored people or Jews" was quite a common restriction in deeds in the past. Just as keeping your garage door closed, your grass a certain length or painting your house a certain color are enforceable restrictions in many subdivisions and are written in the deed.

Your argument that "if the Courts enforce it, then it's state action" is absurd. By the same logic, if someone says something offensive in my home, refuses to leave and then I have him prosecuted for trespass, then the courts are abridging his First Amendment rights.

Well no, it is entirely different. If I bought a house with a restrictive covenant that prohibited its sale to "colored people or Jews" and I wanted to sell it a few years later to a nice "colored" family, it would be my neighbors, or the homeowner's association who would sue to block the sale. The court would be asked to block the sale on behalf of a third party, not the parties to the contract. Furthermore, in your hypothetical, the underlying crime is not the act of speaking, it is trespass (even though you didn't object to the tresspassers presence until you found his speech objectionable). In my hypothetical, the courts are enforcing the discriminatory act itself, not some secondary action.
9.14.2007 10:59am
Mark Field (mail):

Your argument that "if the Courts enforce it, then it's state action" is absurd.


In addition to J.F. Thomas's point, the SCOTUS disagrees with you. Shelley v. Kramer.
9.14.2007 12:40pm
unhyphenatedconservative (mail):
Mark,
SCOTUS disagrees with me? Oh my! Such a devastating response. I mean it's not like they ever get it wrong, right? I stand (or more accurately) sit, thoroughly chastened that I have had the temerity to disagree with our robed masters.

J.F. Thomas:

The underlying action brought to the Court is a secondary action because it is breach of contract. The contract is discriminatory, just as my example has a trespass action that is motivated by a desire to not have certain speech on my property. The underlying action is a breach of covenant, though the covenant is discriminatory.
9.14.2007 1:42pm
Mark Field (mail):

SCOTUS disagrees with me? Oh my! Such a devastating response. I mean it's not like they ever get it wrong, right? I stand (or more accurately) sit, thoroughly chastened that I have had the temerity to disagree with our robed masters.


Well, don't feel too bad. I'm sure all of us have made the mistake of characterizing an argument as "absurd", innocently ignorant of a unanimous Supreme Court opinion to the contrary.
9.14.2007 2:33pm
Billy Beck (www):
"Law never made men a whit more just; and, by means of their respect for it, even the well-disposed are daily made the agents of injustice."

(Henry David Thoreau)

or...

"Why do you think they call 'em 'opinions', dummy?"

(WJB III)
9.14.2007 3:00pm
J. F. Thomas (mail):
The underlying action brought to the Court is a secondary action because it is breach of contract

No, you are asking the court to enforce a specific covenant by enforcing it--prevent the sale to the black family, thus perpetrating the discriminatory act. Plus you are doing it on behalf of a third party, not the buyer and seller of the property. Taking your free speech example, it would be like a third party tried to get the government to shut down a meeting on your property because they, not you, objected to the content.
9.14.2007 4:50pm
unhyphenatedconservative (mail):
"Taking your free speech example, it would be like a third party tried to get the government to shut down a meeting on your property because they, not you, objected to the content."

But as an action enforcing a covenant to which I am a third party beneficiary.

Mark,

You're right. The fact that the SC was unanimous puts it beyond reproach. The robed masters have never erred and their word is Holy Writ if delivered unanimously. It's logic must never be questioned.
9.14.2007 6:44pm
Tim Fowler (www):
DavidAWW - Re: "People can use libertarian arguments to bolster their racist agendas."

That is certainly true but is that a defect in libertarianism? I would say no. People can use cars to get away from bank robberies but that's not the fault of the car.

Re: "Lester Maddox (southern segregationist in the 1960s) defended keeping African Americans out of his restaurant with arguments about states rights and the freedom to associate that sound just like a libertarian manifesto."

I would submit that for those reasons he did have a right to keep African Americans out of his restaurant. Obnoxious racists have rights too...
9.14.2007 8:32pm
Mark Field (mail):

You're right. The fact that the SC was unanimous puts it beyond reproach. The robed masters have never erred and their word is Holy Writ if delivered unanimously. It's logic must never be questioned.


Well doh. Everybody knows we should take anonymous internet blog trolls more seriously than unanimous opinions by the SCOTUS.
9.16.2007 9:21pm