Legal Commentary

Final Thoughts on Libertarianism and Antidiscrimination Laws

By David Bernstein

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.

Full post as published by The Volokh Conspiracy on July 06, 2010 (boomark / email).