Civil rights and affirmative action are getting their closest reexamination in years. Unfortunately, the reexamination is not close enough. With scant exception, no one is willing to go to the core of the issue and condemn the entire rotten regime for what it is — massive violation of individual rights. The way civil rights are defined today confronts us with a choice between them and individual rights as conceived in the classical-liberal tradition. In other words, the alternatives are phony rights and genuine rights. The choice ought to be easy.
What is the core of civil rights as defined by the civil rights movement? Simply this: the right not to be discriminated against. The entire civil rights structure is dedicated to stamping out discrimination against particular minority groups, including blacks and Hispanics, and women. The mission of stamping out such discrimination is so single-minded that discrimination against unprotected groups is permissible, even imperative, if that is what it takes to end discrimination against minorities.
We thus have a clash between two purported rights. On the one side is the alleged right not to be discriminated against. On the other is the right to freedom of association. These rights cannot coexist. If freedom of association reigns, an individual has a right to associate or not associate using any standard he pleases. But if the right not to be discriminated against reigns, such freedom of association cannot be allowed. The two rights are directly opposed.
When two rights clash, at least one of the rights is counterfeit. How do we know? The very purpose of a rights theory is to avert conflict and establish what individuals may and may not legitimately do. In philosophy, that feature is known as compossibility. A rights theory that makes conflict inevitable is worse than useless. It violates its very purpose for existing.
The conflict between the right not to be discriminated against and the right to free association should be obvious. The right to free association is logically entailed in the basic right to life or the right of self-ownership. That right holds that an individual may do anything with his person and legitimately acquired property that does not involve the initiation of force against another person. If an individual owns his life, he has the right to choose with whom he’ll deal. That right to choose logically entails the right to use whatever criteria the person wishes. No rights are violated if he should abstain from dealing with a particular person. That statement remains true regardless of what criteria he uses. No rights are violated, simply because no one has a right to deal with him (absent, of course, some previous contractual obligation).
I said that the right to free association comes logically from the right to life. From where comes the right not to be discriminated against? Such a right would forbid others from using certain criteria (race, etc.) in deciding with whom to deal. But that would violate the right to free association established above. The right not to be discriminated against necessarily violates a logical implication of the right to life. So it cannot itself be entailed by the right to life — or else contradictory “rights” would come from the same source. That is impossible. The right not to be discriminated against thus cannot be a true right. It is a pure invention.
Any law that tells an individual he may not use race, ethnicity, sex — or any other criterion — in deciding whom to hire, sell to, rent to, or serve is a law that violates real rights.
That argument does not imply that any criterion is as good or rational as any other. Irrational criteria can be chosen. Here we are discussing only what a person has a right to do, not what is rational or good. A person has a right to be irrational as long as he violates no one else’s rights. If no person has a right to be dealt with, no rights are violated even when someone excludes that person on the basis of an irrational criterion.
But, the civil-rights advocate might say, how can black people enjoy the right to life if employers won’t hire them, landlords won’t rent to them, and restaurants won’t serve them? Although those abstentions from action do not violate rights, they surely can affect a person’s or group’s quality of life. Decent, rational people would be disturbed by the inconvenience and humiliation inflicted by such bigotry. The proper response, however, is not to interfere with the right to free association, which would set an ominous precedent. The best protection against what we may call economic bigotry is laissez-faire capitalism. The open, competitive marketplace assures that members of minorities (and women) have the maximum number of options, diluting the influence of bigots. For example, an employer who decides he will not hire blacks leaves talented workers available to his competitors. In an open economy, some of those workers may themselves become entrepreneurs and hire the others. If because of discrimination the workers are willing to work for less than whites, the firms hiring them will have a competitive edge over other firms. If the workers perform efficiently, their wages will soon rise, as other employers try to bid them away. (A lower wage has been known even to induce a bigot to put aside his bigotry to save money.)
Self-interest and the competitive marketplace will tend to remove obstacles to talent and competence. But the marketplace must be kept free of government interference. That is not usually the case. In South Africa, apartheid began when bigoted white labor unions lobbied for an “equal pay for equal work” law. Although it may sound like humanitarian legislation, it was specifically aimed at preventing black workers from underpricing their labor relative to white workers and winning contracts. In our country, the minimum-wage law is similar. By making unskilled (mostly minority) labor artificially expensive, it assures that employers won’t be tempted to use it in place of skilled union workers. Other regulation of the labor market, such as licensing laws, have similar intentions and effects.
Sometimes governments explicitly restrict the economic activities of targeted groups, such as blacks. The panoply of regulations known as Jim Crow laws falls into that category. Such laws mandated separate facilities for black people, such as railroad cars. It is not usually appreciated that many white businessmen opposed those rules if for no other reason than they were costly. The famous case of Plessy v. Ferguson , in which a black man tried to sit in a whites-only train car, was brought with the cooperation of the white railroad owner. (The U.S. Supreme Court, of course, refused to strike down the law mandating “separate but equal” facilities.)
Most common of all, however, has been the state’s segregation of its own facilities. It was a municipal bus company in Montgomery, Alabama, that required blacks to sit in the back. Government school districts confined black children to ramshackle “schools.” This brings us to a crucial point: while private individuals have the right to associate on any terms they wish, governments do not. Since governments do not discriminate when they tax their citizens, they may not discriminate in the provision of services or hiring. (To be more precise, they may not discriminate irrationally and invidiously. Some discrimination is neither irrational nor invidious: for example, discrimination against blind people in the hiring of Air Force pilots or against women and homosexual men in military units. Were government to abstain from rational discrimination, it would disserve the people it has taxed.)
The principle is simple: private individuals may deal or not deal with whomsoever they wish using any criteria they wish. Governments, because they coerce citizens to pay taxes, may not discriminate irrationally. This is precisely the distinction that was not made in the 1964 Civil Rights Act. That act struck down the Jim Crow laws in the Southern states, but it also outlawed private discrimination in hiring and so-called public accommodations. Some opponents of the act, such as Senator Barry Goldwater, favored barring discrimination by state governments but opposed banning private discrimination. He predicted that the ban would turn inexorably into a mandate for quotas — which is exactly what happened. The nature of the case made it inevitable.
Civil rights today means government interference with the private, noncoercive decisions of citizens. Thus, civil rights today are phony rights. To the extent they are enforced, individual rights are denigrated. We cannot have both. The best protection of minorities is individual rights and the free market they generate.
