The Injustice and Tyranny
of Anti-Discrimination Law

ἢ οὐκ ἔξεστί μοι ποιῆσαι ὃ θέλω ἐν τοῖς ἐμοῖς;
Aut non licet mihi quod volo facere?
Or am I not allowed to do what I wish with mine own?

Matthew 20:15

To the extent anyone is offering a good-faith criticism, it seems to apply to the narrow exceptions of sole proprietors in the wedding industry, such as florists, bakers, photographers and singers. Our view is that their speech and conduct is protected by the First Amendment, but do liberals really now believe that the very few vendors who object to working at same-sex weddings should be forced to participate in what they believe to be a moral wrong?

...Fining or otherwise coercing any small number of private citizens -- who aren't doing anyone real harm but entertain politically unacceptable thought -- is thuggist stuff.

"Liberal Intolerance, Round II," The Wall Street Journal, April 4-5, 2015, A12

The effects of the late civil strife have been to free the slave and make him a citizen. Yet he is not possessed of the civil rights which citizenship should carry with it. This is wrong, and should be corrected. To this correction I stand committed, so far as Executive influence can avail.

Social equality is not a subject to be legislated upon, nor shall I ask that anything be done to advance the social status of the colored man, except to give him a fair chance to develop what there is good in him, give him access to the schools, and when he travels let him feel assured that his conduct will regulate the treatment and fare he will receive.

Ulysses S. Grant, Second Inaugural Address, 1873

Everybody has asked the question... "What shall we do with the Negro?" I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are wormeaten at the core, if they are early ripe and disposed to fall, let them fall! I am not for tying or fastening them on the tree in any way, except by nature's plan, and if they will not stay there, let them fall. And if the Negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone!

Frederick Douglass, "What the Black Man Wants"

As is so often the case, authoritarian government swung to the opposite extreme.

"The Graying of China," The Wall Street Journal, October 30, 2015, A12

Segregation laws required racial discrimination in private business, thereby violating rights of property, contract, and free association (i.e. liberty). The Civil Rights Act of 1964 prohibited racial discrimination in private business, thereby violating rights of property, contract, and free association. In moving from a legal regime of the former to the latter, freedom, with all its inherent rights of property, contract, and free association, was simply skipped over. Thus, what the Constitution calls "the Blessings of Liberty," were never even tried; and such laws reflect neither the letter nor the spirit of founding principles of the United States, or what should be those of any liberal republic. They do, however, reflect a theory that government knows best and that citizens cannot be trusted to govern of their own affairs in their own way. This is the collectivist ideology of 20th century authoritarian and totalitarian states, whose cancer, promoted by the ruling class, still eats away at American government.

Ἐγκλινοβάραγγος (Enklinobarangus)

The true test of one's commitment to freedom of association comes when he permits people to be free to associate -- or not to associate -- in ways he deems offensive.

Permitting discriminatory association practices in publicly owned facilities -- such as libraries, parks and beaches -- should not be permitted. That is because they are taxpayer-financed and everyone should have a right to equal access. But denying freedom of association in private clubs, private businesses and private schools violates people's right to freely associate.

Christian Americans have been prosecuted for their refusal to cater same-sex weddings. Those who support such attacks might ask themselves whether they would also seek prosecution of an owner of a Jewish delicatessen who refused to provide services to a neo-Nazi affair. Should a black catering company be forced to cater a Ku Klux Klan affair? Should the NAACP be forced to open its membership to racist skin-heads?

Walter Williams, "Free speech and liberty for all," November 25, 2015 -- of course, Neo-Nazis and Klansmen are not "protected" classes in the law; but at American colleges, an NAACP affliate would now be prohibited, after some court decisions, from imposing a test on those seeking membership -- racists actually could infiltrate and take over an NAACP chapter, just as atheists now can infiltrate and take over Christian organizations at many schools.

ἄνδρες Ἀθηναῖοι, ἀσπάζομαι μὲν καὶ φιλῶ,
πείσομαι δὲ μᾶλλον τῷ θεῷ ἢ ὑμῖν.
Men of Athens, I am grateful and I am your friend,
but I will obey the god rather than you.

Socrates, Plato's Apology of Socrates, 29d

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

The United States Constitution, Amendment XIII, Section 1.

The basic thesis here, to get right to it, is that anti-discrimination laws, in so far as they bind private transactions rather than government action, are unjust and unconsitutional, and that is because they violate the prohibition of the Thirteenth Amendment against "involuntary servitude." Since the basic thrust of the Thirteenth Amendment is to prohibit slavery, which we might say is one of the greatest evils that has ever existed in human history, to which "involuntary servitude" is the equivalent, we can also say that anti-discrimination laws share in this evil. The Marxists who run around complaining about "wage slavery," i.e. that most people must work for a living, never seem to notice this kind of slavery. As I have noted above in the epigraph, under Segregation, discrimination by race was required by law, while under the Civl Rights Act of 1964 discrimination by race was prohibited by law. Neither of these simply allowed freedom, or, in the words of no less than Jesus Christ, for anyone, , "to do what I wish," , "with mine own" [Matthew 20:15].

But the Civil Rights movement was supposed to be about freedom. That's what everyone marched around chanting. I remember it. Somehow "freedom" turned into making others do what you want with their own liberty and property. In those terms, "civil rights" have now become the opposite of what they are supposed to be, since the very meaning of "civil rights" was to protect citizens from the government and to limit the power of government by specifying what it cannot do, e.g. abridge the freedom of speech -- something that is now actually a major goal of the Left, and of the infamous "cry-bully" student activists, as it always was of totalitarianism. Instead, "civil rights" now often mean making government stronger rather than the opposite, and enabling it to intrude into private affairs. This is a more serious matter than we find in the famous put-down by George Bernard Shaw, who said that the United States had jumped from "barbarism" to "decadence" without the intermediate step of "civilization." Since Shaw was actually a socialist, his idea of "civilization" apparently involves having the government tell people what to do -- something I have found common among American "educators," for whom "civilization" mean socialism. So if government has jumped directly from discrimination by coercion to anti-discrimination by coercion, this might be more what Shaw -- as with most Democrats and "progressives" -- mean by civilization.

In the Biblical reference, the point is not the authority of religion or the Bible or Jesus, but the reasoning of the passage. It is the Parable of the "Eleventh Hour," and the dispute is about wages, definitely an issue still alive in our time. The employer has hired people to work the day for a denarius. However, at the "eleventh hour," i.e. 5 PM, he has hired some more workers, who will only be working about an hour (i.e. until sunset, which, in most ancient reckoning, was defined as the 12th hour, whenever sunset actually occurs), but he will also pay them a whole denarius. The other workers protest, that they are getting paid proportionally less for a lot more work. If the employer will pay some a denarius for an hour, then those who have worked 8 or 10 or 12 hours should be paid 8, 10, or 12 denarii, respectively. The employer says no, because it is his money and he can pay what he likes. Of course, the point of the parable is that this is the practice of God. Those who come late to Salvation get the same reward as those who came early -- although the analogy may not hold when we reflect that salvation is not compensation, as wages are.

As employment law, this is now prohibited. God is engaged in "unfair" labor practices. An employer cannot pay what he likes, as this is governed by a host of Federal and State statutes and a whole Federal agency, the Department of Labor. At the same time, although there is no Constitutional basis for such Federal laws or such an agency, so that its actions are ultra vires, beyond the powers of the Federal Government, they have been allowed to continue, and judicial sophistries cooked up to justify them, because the majority opinion is that they are a good idea; and committed economists have at hand a body of theory, Keynesian economics, whose notion is to drive up wages, to justify such opinions and practices. These abridgements of freedom, property rights, and the Constitution, however, prepared the ground for anti-discrimination laws, whose further abridgements of freedom, property rights, and Constitutional government seemed a small thing, and morally edifying, once the principles of abridgement were allowed in the first place.

Essential to employment law and anti-discrimination law is the idea that business is not really private and so that when freedom is abridged through restrictions on business, this does not really violate the privacy or liberty of American businessmen. By engaging in business they assume new levels of obligation, it is thought, which makes them subject to limitations that otherwise apply to government rather than to private life. It is the simplest thing, indeed, to think that were principles of anti-discrimination properly apply to government, then they should also apply to buisness also, mainly because of the "power" that business has over workers (who are at the mercy of, shall we say it, "capitalists"). On the other hand, workers, in seeking employment or taking a job, are not themselves obliged to observe anti-discrimination priniciples. They can take whatever job they want, or quit it, for whatever reasons that seem good to them. If racists or anti-Semites don't want to work for black or Jewish employers, they don't have to. And if they quit their job, for instance, beause they discover that the business is owned or run by Jews, they are under no legal obligation to admit this, or admit to anything. Unless they are working under a contract whose obligations, to which they have agreed, must be discharged, they can proclaim, for good reason, bad reason, or no reason, "Take this job and shove it." Most employment is a "contract at will," which means it can be terminated by either party, at any time, without explanation. Employment law is eating away at contract at will, holding employers actionable for "wrongful termination" even in the absence of contracts, but employees are never held to do such standards -- heavens, that would be "involuntary servitude."

The argument that business is more like government than like an employee's choice is seductive, but it rests on a false and dangerous principle. Everyone has a right to make a living, and this right derives from the most obvious forms of Natural Law, i.e. if one were prohibited from making a living, then starvation and death could result. Since necessitas non habet legem, which means that any law can be abridged or violated if one's life is at risk or endangered, no prohibition or substantial restriction on the ability to make a living is right or just. While this principle is admitted in effect for anyone seeking a job (unless they are an illegal alien), it is violated if one seeks a living by running a business. Thus, you are free to sell your labor in any way you like (although you cannot accept a job for less than minimum wage, etc., which is construed as a limitation on employers rather than on job-seekers), but if you sell anything else, you can actually face onerous and often arbitrary restrictions and prohibitions, including record keeping to prove yourself innocent of any violations (violating the presumption of innocence; but this is the "inquisitorial" feature of "administrative" powers).

The most obvious argument to justify this difference is that no one needs to have a business. They are free to make a living with all the liberty of the employee; but, since they don't need to have a business, then, in the absence of necessity, extra conditions can be imposed on them. The problem with this argument is that it proves too much. If a businessman does not need to have his business, which means his business will not be available to the customers he wants to serve, then the customers who might be discriminated against by the business don't need to have the business either. If anti-discrimination laws preclude the existence of certain kinds of business, then the victims of discrimination are not better off. They would not have been customers of the existing business, and they will not be customers of the non-existing business. There is no gain in welfare there, and in fact a net loss in welfare, since the other customers who would have been served otherwise will lose that service.

There is also the loss in welfare generated by the laws themselves. If putative victims of discrimination can sue businesses for discrimination, and (with their lawyers) reap financial rewards for doing so, this is a negative sum game in which wealth is transfered by force. Since many anti-discrimination lawsuits are fraudulent or otherwise without merit, and the law no longer requires that discrimination be intentional (with case law doctrines like "disparate impact," which are sophistries made up out of whole cloth, precisely to get around provisons of the Civil Rights Act of 1964, which prohibited merely statistical evidence of discrimination), the opportunities for lack of merit, dishonesty, and outright predation are enormous. This does not add anything to social welfare; nor does it benefit most of those for whom the laws supposedly have been passed. Thus, the "Americans with Diabilities Act" (ADA), which requires businesses to make (vaguely and bureaucratically defined) "reasonable accommodations" for both disabled employees and customers (including "disabilities" like alcoholism, drug addiction, or mental illness), resulted in fewer disabled people being hired by business -- who could always find good reasons to hire others and who were in effect discouraged from hiring the disabled because of increased expense and legal liabilities. We even find people making a living, with their lawyers, by suing people, including businesses run by the disabled, for trivial breaches of the bureaucratic and sometimes senseless requirements of the ADA [note].

This can be devastating for small business, which typically operates at the margin anyway. A small business, for all the "power" of its greedy capitalist owner (who may be a Korean, Iranian, or Jamaican immigrant), can be destroyed by a lawsuit, with no durable increase in welfare for anyone, unless it is the lawyers (...oh). The unstated justification for this seems to be that people engaged in discrimination should be eliminated from business entirely, for moral reasons, regardless of the economic consequences. That rationale comes to the fore with private clubs, which do not need to observe anti-discrimination laws for their membership, since they are not businesses open to the public. Nevertheless, the public vilification directed at them can be considerable. This is conspicuous with Country Clubs, which may allow only male or, formerly, Christian membership. Now, Fraternities and Sororities on college campuses are, incredibly, being harrassed or required to admit both sexes. Generally, women's colleges are not the target of vilification or harrassment, and evidence suggests that women may do better in women's colleges rather than mixed in with men; but the the social and political environment tells against them, and several women's colleges are in an economically precarious or terminal condition. Most women gravitate to co-ed schools, where we then get accusations about the "rape culture."

This is a revealing circumstance. Social peace is promoted when people who don't like each other are separated -- as in "beaking-up" a fight. People will "self-segregate" with those they like, if left to their own devices. Enlightened political culture, however, doesn't like this, even when it is obviously what people prefer -- unless it is a call for all black dormitories or graduation ceremonies, and similar things, at colleges (where administrators fall all over themselves to allow such segregation). If people self-segregate into their own neighborhoods, the bien pensants persist in believing that this is the result of their being forced to be there, against their will, by malevolent forces. When low income ethnic groups simply cannot afford to live in affluent locales, the Federal Government now tries to require wealthy municipalities to provide "low-income" housing, i.e. the miserable squalor of public housing, in order to "integrate" the area. This is generally of no benefit to anyone and, if anything, results in the promotion of negative attitudes, as middle class people may observe or experience more intimately the social pathologies that are often the reason for poverty in "disadvantaged" groups. The rationality of ethnic prejudice is a truth to which the "progressive" mind is immune.

In employment, there are other odd preconceptions involved. In the popular forms of Cargo Cult economics, there are a fixed and limited number of jobs in the economy. Indeed, the progressive mind may be under the impression that the number of jobs will necessarily decline over time, as machines replace people to do work. Kurt Vonnegut wrote a story about this, where a few people pushed buttons and everyone else had nothing to do. This corresponds to no historical experience, where the introduction of machines has generally resulted in more employment rather than less. Most importantly, many traditional jobs have been eliminated, not because they don't need to be done, but because most people can find better paying jobs elsewhere. Thus, the 19th century American middle class family might have a cook and maids, usually in the form of poor Irish women. The 20th century middle class family no longer had such employees, until illegal aliens became available to do such work without all the requirements of employment law. Such practices have occasionally embarrassed even nominees for Cabinet posts in the Federal Government.

The disappearance of legal domestic help, however, is often the result of pay and regulatory mandates that render the jobs uneconomical, or at least uneconomical for middle class families who either cannot afford them or cannot take the time to jump through the bureaucratic hoops required to "comply" with all applicable regulations. Where this effect is felt in the larger economy, as in France or other progressive jurisdictions, when small and even large businesses are affected by the diseconomies of regulation, and persistent high levels of unemployment result, we can count on the bien pensants announcing, as Vonnegut assumed, that unemployment is now "the new normal," and that modern economies will never generate full employment again. Of course, this is a convenient argument. When government wrecks an economy, as it did during the Great Depression or in the mortgage credit collapse of 2008 (the "Great Recession"), it must try to avoid blame at any cost -- so it can do the same thing all over again, to the benefit of no one save itself.

On the other hand, the truth is not only that new kinds of jobs are created by every new technology, with unlimited possibilties always existing, for instance, in entertainment, fashion, housing, and transportation, but also that employment is entirely a function of wages. Market clearing wages, as opposed to moral or political price fixing, result in full employment -- which means no more than about 2% unemployment, which is the "frictional" unenployment resulting from people voluntarily looking for different jobs or otherwise temporarily unemployed, as when they change their residence for other reasons. In these terms, anti-discrimination laws in employment would seem to be superfluous. Everyone will have a job; and if an employer doesn't like the identity, for whatever reason, of an applicant, and the applicant really wants that job, for whatever reason, a lot of prejudice can be overcome offering to work for less than other employees.

As Thomas Sowell says, people like their prejudices, but they like themselves better, and the historical experience is that people will hire others they don't even like if it is in their interest to do so. Since Capitalism is frequently accused of being complely opportunistic and unprincipled, it is curious that this is forgotten when businesses are accused not hiring people purely out of prejudice. Segregation laws were seen by racists as necessary because there was no such thing as "white solidarity" when it came to discriminating against black people. Thus, as Walter Williams likes to say, why do you need racist laws when racists are going to do their racism anyway? Indeed, the laws were to enforce that racism against those unwilling to practice it, including, as it happened, actual racists who, paradoxically but understrandably, liked a good deal better than their own racism. Indeed, this is always what most infuriated Segregationists about capitalism.

Many evils of employment and business anti-discrimination laws result from the fact that wages and prices are usually set by forces that escape our ability to know or understand. The stock market goes up and down every day; and whatever it does, experts try to explain it. But the same experts, presumably with the same knowledge, are rarely able to predict what the market is going to do; and the market often leaves them really unable to explain, for all their cleverness, what has happened. This is revealing. Economists like Ludwig von Mises, F.A. Hayek, and Thomas Sowell consequently understand that markets are our way of dealing with our own ignorance about the conditions of both supply and demand that determine prices.

A reporter from the Daily Caller then pointed out that the women on Nancy Pelosi's own staff average 27 percent lower incomes than the men on her staff. Does that show that Pelosi herself is guilty of discrimination against women? Or does it show that such simple-minded statistics are grossly misleading?

Thomas Sowell, "The real 'war on women'," 6 June 2012

Yet, with a predictable regularly, news stories are released, for instance, that women only earn 70%, or some other fraction, of what men earn, and that this is clearly only the result of sex discrimination, which can only be remedied by more laws and regulations about wages and discrimination. When it was discovered, however, that women working in the Obama White House, and in the office of Democrat House of Representatives leader Nancy Pelosi, earned comparable fractions of what the men there earned, these embarrassing revelations were completed ignored, much less explained or defended. The "main stream media," with its partisan bias for government and the Democrats, knew that such fallsifying details (assuming that Barack Obama and Nancy Pelosi were not actually discriminating against women) would soon be forgotten, and that stories of the original form could be released again, without change, after a while. People would forget -- a circumstance essential to Democrat (i.e. government-promoting) propaganda and electoral success.

Similarly, it has been discovered more than once that dry cleaners tend to charge more for cleaning women's clothes than men's clothes. Laws have been passed to prevent this. I saw one politician claim that the only reason she ever heard for such differences is that women's shirts tend to button on one side, men's on the other. This was, of course, intended as a reductio ad absurdum of such discrimination, on the prinicple that all discriminination must actually be irrational. One wonders if she heard this from a Korean dry cleaner with a poor command of English. Or made it up (hoaxes are common in this kind of politics). However, it is not that difficult to see why dry cleaners might charge more for women's garments. For one thing, women use dry cleaning more than men. This alone means that we should expect men to be charged less, since their demand is low, which all by itself would affect prices, but also that dry cleaners would charge men less to try and tempt more of them in. However, the major reason for price differences is certainly that more women's garments require dry cleaning, because they are made from a variety of materials that cannot be washed. Also, women's garments come in a vast number of styles, which pose trouble for dry cleaners far beyond the silly case of mirror-image buttons. Delicate materials, or complex assembly, can lead to damage if the garments are not handled in the right way. This makes for more work than with a simple men's coat (wool, cotton, linen) or suit (wool -- polyester mercifully have now mostly disappeared for either), which might be the only things ever dry cleaned by men.

What we can say for certain is that politicians who get on their high horse about discrimination in dry cleaning have never been dry cleaners, and have never paid any attention to anyone who actually knew anything about dry cleaning. But we do see something that is all too common in legislation these days, as Thomas Sowell frequently notes, which is the willingness to impose costs on others for which the government assumes no liability and takes no responsibility. Thus, the farcical dry cleaning anti-discrimination laws raise prices for men, who then in effect subsidize women's dry cleaning -- or least the dry cleaning of women who wear fashionable clothes -- just as ObamaCare wants the young, who earn less early in life and have accumulated no savings, to pay for insurance they don't need in order to subsidize others, who then think they are getting a bargain, or even something "free" from the government, when they may be both older and wealthier than the youth who subsidize them. Modern government, indeed, is always robbing Peter to pay Paul; and it shouldn't surprise anyone that anti-discrimination law should share in this dynamic.

The idea that ethnic or racial minorities need anti-discrimination laws because otherwise they cannot possibly be economically successful is refuted by voluminous evidence, much of it obvious from a general knowledge of American or world history. Thus, no one doubts that Jews were discriminated against in 19th and 20th century America, or that Jews arriving from Russia, say, in the 1900's were extremely poor. On the other hand, before anti-discrimination laws even existed, Jews had already become the wealthiest group, by family income, in the United States. Even today, the majority of hate crimes involve attacks on Jews. So, with so much hatred and anti-Semitism, how could the Jews have become so wealthy? Anti-Semites, of course, will say that Jews became wealthy by theft and cheating, or by an international conspiracy (i.e. capitalism) to exploit and defraud the workers.

Regardless of the merit of such claims about the Jews -- and their absurdity -- the curious thing is that similar explanations must be offered for other minority groups that have been successful in economies with a relatively unsuccessful majority. Thus, the Chinese in South-East Asia (Vietnam, Thailand, Malaya, Indonesia, the Philippines, etc.), Indians in East Africa (Kenya, Uganda, etc.), Lebanese in West Africa (Ghana, etc.), Japanese in (pre-WWII) California, or Koreans in Harlem (etc.) are successful or even the most successful groups in their economies, and they draw the same kinds of resentment, hatred, accusations, and violence that historically have been directed against Jews. What the history of these groups decively falsifies are two axioms of leftist or "progressive" politics:  (1) that political power is a necessary condition for economic success; and (2) that political power is a sufficient condition for economic success. While successful minority groups in unsuccessful majority economies refute the former, the experience of communist economies helpfully refutes the latter. Josef Stalin had as much power as anyone in history, but when the Soviet economy didn't perform as it was supposed to, the explanation became "wreckers" and spies, who simply needed to be killed for their influence to be erased. But then millions of murders and slave labor in the Gulag never helped; and the most remarkable thing about the Soviet economy is that when the veil was lifted by Mikhail Gorbachev, it turned out that no one, certainly not Western apologists (e.g. John Kenneth Galbraith), but even the CIA, had no idea how "underdeveloped" the country really was. Little Taiwan had a larger economy than the Soviet Union, which had been represented by all, for decades, as the second largest economy in the world. This is conveniently forgotten by the clueless idiots (e.g. Bernie Sanders or Elizabeth Warren) who now, even in the United States, are again promoting socialism. The embarrassment of the apologists was short-lived.

The necessary and sufficient conditions for economic success are:  (1) the human capital of virtues and knowledge in individuals (often part of a cultural heritage); and (2) the rule of law that protects rights of person, property, and contract of individuals. Where successful minority groups are vulnerable is when the envious majority ignores the rule of law and violates rights of person, property, and contract. Thus, as happened more than once in Europe, the Jews could simply be robbed and then expelled, as they were most notoriously from France, England, and Spain. But, taking their human capital with them, they could earn back their wealth, and the envy of others, elsewhere. Similarly, in World War II the Japanese of California, who were often prosperous off of agricutlure, were forced to sell their land against deadlines that prevented the recovery of its honest value. This deliberate policy was the revenge of everyone who resented their success. After the War, Japanese-Americans rebounded quickly, but their success tended to be in the professions and non-agricultural business. For a while, Japanese gardeners were back, but then the institution faded from fact and even memory (replaced by Korean gardeners hiring Hispanic workers). This happened after laws prejudicial to the Chinese and Japanese -- for instance in California that aliens "not eligible for citizenship," which meant Chinese and Japanese immigrants, could not own land -- were repealed but before actual anti-discrimination laws against private business were passed.

A dramatic example of the necessary and sufficient conditions for economic success is found in the history of the town of Rosewood, Florida. By the 1920's, when, with the help of Woodrow Wilson, the Ku Klux Klan had revived and become influential in much of the nation, Rosewood was both predominately black and economically more prosperous than the majority white towns around it. Naturally, this engendered envy, of a particulary nasty, racist kind. In January 1923, a white woman in nearby Sumner claimed to have been beaten and raped by a black drifter. This was a lie, since she had been beaten by her own (adulterous) lover; and it was not clear that the mythical "drifter" would have had anything to do with Rosewood anyway. Nevertheless, white mobs attacked Rosewood, murdering residents and literally burning down the town. Law enforcement did nothing about the massacre and destruction either while it was going on or afterwards. The town was actually abandoned as survivors never returned. It wasn't until 1994 that the State of Florida decided to compensate the families of survivors, to the tune of $2 million. The 1997 movie Rosewood presented an apparently accurate portrayal of the events.

Rosewood, Florida, did not need anti-discrimination laws, affirmtive action, or the welfare state. All it needed was the protections that any government is obliged to provide its citizens -- with such obligations specifically imposed on States like Florida (or any State) by the Fourteenth Amendment. That these obligations were not met is no argument that government must be given more power to tell people who are actually minding their own business what to do with their own liberty and property. The people of Rosewood, in the course of actually minding their own business, were the victims of what was essentially "domestic terrorism."

The process of ending Segregation and the unequal protection of the laws began with Brown v. Board of Education in 1954. The curious thing about Brown, however, was not just that it didn't strick down all segregation laws -- only those for schooling -- but that its rational was not what we would expect. Thus, the finding was not that "separate but equal," which had been allowed by Plessy v. Ferguson in 1893, actually had never resulted in "equal," but always in unequal. Instead, the finding of Brown was that black only education could never be equal because black children would always feel unequal in comparison to white society. Thus, black children could only do well if put with white children. This finding, however, was contradicted by something that existed within a few blocks of the Supreme Court building, which was all black Dunbar High School of Washington, D.C.

Despite, in fact, unequal funding and fascilities, the students at Dunbar consistently outperformed two and sometimes even all three of the other, all white, high schools in the District of Columbia. Its graduates ended up among the most successful black people in their times. We might expect that this success would have resulted in some envy from the white population of the District. It may well have; but what we hear instead is the envy and resentment it provoked in the black community. That Thurgood Marshall ignored Dunbar in Brown may not have been surprising. He and other "leaders" may not have wanted Dunbar to be successful. No problem. The subsequent "civil rights" movement destroyed everything that was excellent about Dunbar High School. It is now like so many other terrible inner-city schools, where "education" is simply a jobs program for unionized teachers. Black parents want charter schools or vouchers for their children, but they have been betrayed by the black "leaders" and the Democrat politicians that the parents often end up voting for anyway.

Why would the black community detest Dunbar High School? This even got to the point where a movement to save the original building at Dunbar was defeated and it was demolished. One gets the feeling that the objections, to "elitism" or whatever, were actually part of the accusation that success in education meant "acting white" (ho'ohaole was actually a word for this in Hawaiian). This is part of the problem in inner-city schools, where successful students may be shunned or beaten, despite black "leaders" themselves constantly touting educational advancement as the road to success. It's just that they don't put their political power where their mouths are. Perhaps the anti-education students pick up on this and figure that the "leaders" don't really mean what they say. Failure, ignorance, and resentment are more authentically "black."

It is hard to imagine more destructive and self-destructive attitudes. Yet it is all perfectly consistent if we realize the ideological background, which is, again, Cargo Cult economics. Thus, everyone is simply owed their "share" of the economic "Pie." This even applies in education. Before preferential policies were abolished by the voters in California, under-qualified minority students admitted to the University of California often simply didn't graduate. When preferences were abolished, black enrollment, for instance, went down, but black graduation rates didn't, or even went up. With a lot more failure in the old system, for a while Democrat politicians contemplated requiring the University to graduate more minorities. This could only have been accomplished, of course, with the kind of "social promotion" that had already devastated primary and secondary education, or by steering students into soft programs, like "ethnic studies," which would be worthless in life but where high grades could be handed out indiscriminately.

But the very idea of requiring certain graduate rates gives away the game. It is not about education or about an effective preparation for life. It is about an entitlement to "honors" that must be equally distributed. And if an employer is suspicious about the qualifications of a person with an ethnic studies degree, then the anti-discrimination laws are there to punish and loot his business, so that the "victim" can get an economic windfall without even having the job or ever working at it. Thus, actual economic considerations are overruled by political entitlement. It is nothing less than the hand of Joe Stalin ready to work its magic again.

This is probably what we have to expect from the "Black Lives Matter" organization, which promotes the idea that the police are the real problem of the black community, mowing down young black men in an "open season" on them. Unfortunately, whatever one thinks about police shootings, it is mostly young black men who practice an "open season" on each other, and on anyone else; and black lives don't seem to have ever mattered before when it was simply black-on-black crime -- a problem that has only gotten worse, especially in places like Baltimore and Chicago, since the rise of a political movement against the police. Demonstrators still carry signs with a web address for the Revolutionary Communist Party, something that is neither clearly shown, identified, or discussed by the media. This is already what we saw back in the 1960's among black militants, nationalists, and radicals. They thought the police were the problem; and their behavior helped elect Richard Nixon as a "law and order" President. Probably not what they had in mind.

Thus, the idea that anti-discrimination laws merely force businesses to behave in a rational manner, i.e. to stop irrationally excluded employees or customers because of bigotry and prejudice, in fact leads to all the irrationalty that substituting political for economic considerations, or legal fiat for individual rights, commonly brings about. The further we get into decades of legal complications, which get further and further from the principles of the Civil Rights Act of 1964, the worse the irrationality becomes. Until we finally get to people who aren't the least interested in any individual rights, even of "victims," and whose ideas about economics are deliberately divorced from any reality. Thus, the history of Jews or Chinese just doesn't matter when it is not the political narrative that is being promoted. Indeed. If racism were the continuing cause of black poverty, or black crime, then it is hard to see how the most economically successful ethnic group tracked by the U.S. Census is now people from India. Jews and even Mormons may be more successful, but the Census does not ask about religion. Be that as it may, one notices the economic success of people from India, as entrepreneurs in small business, or in the professions (with Indians well represented as physicians and anesthesiologists), yet these are people whose skin is "black" in any way that used to make a difference to racists, as in British India itself. So the purported universal racism of white people makes extraordinary exceptions for Indians or (black) West Indians when it comes to economic dealings. But it is not like activists will ever pay any attention to these paradoxes. There was a time when black success could be violently destroyed, as at Rosewood, Florida; but when the success of Dunbar High is despised by black people themselves, the job of the Klan is already done for it -- as Walter Williams likes to say, the KKK could not have designed a better "educational" system to destroy black people. Anti-discriminations laws, meanwhile, cease to do what they were supposed to, in favor of claims on the substance of others.


The right of anyone to engage in business to earn a living, under the same conditions in which they have a right to choose an employer at will, is established by the principle of necessity. However, necessity also requires exceptions to the absolute control over one's own property. Thus, I have previously considered "privileges of necessity," whereby, for instance, the person dying of thirst, emerging from the desert, cannot be refused water by a person who already has enough for themselves. The dying person, because of necessity, has the right to use any amount of force, including deadly force, to obtain water. Of course, having freely provided the water, the provider is owed a debt that the beneficiary is obligated to discharge in a timely and reasonable manner.

This brings us to the issues raised by President Grant above, that the "colored man" should expect that "when he travels let him feel assured that his conduct will regulate the treatment and fare he will receive." As it happens, the Common Law required non-discrimination for "common carriers" in transportation and for those providing lodging in some circumstances. These circumstances, we have no difficulty imagining, involve necessity. Thus, in the days of Segregation, black travelers might find themselves unable to find a place to stay, because none of the accommodations where they arrived would provide rooms to black people. If you are left out on the street, however, you may well be in danger from the elements, or other evils (e.g. crime). So all travelers, by necessity, have a right to accommodations that are otherwise offered for that purpose -- unless the travelers themselves pose some health or safety threat to other guests.

Now, one might say, this principle of necessity opens the way to fruitless lawsuits just as much as anti-discrimination laws. I don't think so. The circumstances for cause in these cases are much more specific than otherwise. Also, we might not expect the problem to arise very often. Thus, in modern travel, we tend to find chain hotels at nodes of movement, like airports or freeway access points. National chains of hotels or motels will wish to avoid the opprobrium of racial discrimination and will certainly have their own non-discrimination policies. If those are violated by a particular owner, then the cause of action is not necessity but simply breach of contract. By the same token, airlines, bus companies, or other carriers can be expected to have the same policies. And if such a company, for instance, announced that it was going to be "whites only," how many whites would actually be eager to be identified with such a concern? Anyone who voted for Barack Obama, perhaps twice? This does not sound like a good business model, unless a business is so small, and in such a bigoted locale, that a tiny customer base is agreeable. But such a business probably would not be inconveniencing others, unless its clientele turned out to be racists of such a violent sort that they would attract the attention of the police anyway.

Now, it might be argued that the opprobrium of racial discrimination might disappear if anti-discrimination laws were repealed, so that all the true, lingering racism of all white people would suddenly be revealed. If this were true, it is a little perplexing how anti-discrimination laws got passed in the first place, when white majorities in the country would have found little resistance, apart from the moral, to prevent such things. But Bull Connor with his police dogs and fire hoses aroused white indignation in places where people did not know how the South had been operating -- an indignation, as it happens, similar to what was aroused by black rioters, especially in places, like Detroit, where black incomes were actually elevated -- a place that subsequently was destroyed by welfare state politics. Black Democrat politicians, not white people, destroyed Detroit -- a place where Henry Ford, who actually didn't like Jews, had happily always employed black people. In fact, Henry Ford loved George Washington Carver (d.1943), worked with him on materials for Ford automobiles, and tried to hire him away from the Tuskegee Institute -- but Carver didn't leave. Ford ended up building a replica of Carver's birthplace at his historical park in Michigan. Meanwhile, the Democrat desruction of Baltimore and Chicago is hard on the heels of Detroit.

One might also think that the repeal of anti-discriminations laws would mean the endorsement by the government of discrimination. It would "send the wrong message." This is a general problem with the law in our day. The purpose of law can never be to "send a message." This is a distortion of its proper purpose, which is to institute justice. Thus, an objection to repealing drug laws is that it would mean that drug abuse is endorsed as harmless. No, all it would mean is that that law would not be in the senseless business of destroying the lives of people who supposedly are already destroying their lives through drug use. Thus, even though drug users may not actually be destroying their lives, we are going to do it for them. Since this is not justice, it is hard to say what really motivates it. Not even Prohibition made the possession or use of alcohol illegal (only the manufacture, transport, or sale). But what we see with the drugs laws, which criminalize both, looks like the moral judgment that drug use makes the users wicked and sinful, deserving of even draconian punishment (often greater than penalties for murder). Nothing of the sort has any business being in the laws of the United States of America, despite its Puritan origins.

Thus, the repeal of anti-discrimination laws ought not be construed as the endorsement of racial or other bigotry -- altough it is a hard truth that not all prejudice is bigoted or irrational. What we should worry about instead is the manner in which the Civil Rights movement, which began righteously protesting Segregation, has evolved into the racial hatred of white people -- which is what a lot of "progressive" politics and attitudes are about -- with the desire to establish a totalitarian police state in order to effect racial revenge. Liberal guilt turned into racial guilt even recruits useful idiot white "liberals" to this cause, but it will in fact never do any good for anyone, and it is a loser in any honest democratic election, if honest elections are what activists ever actually want, rather than a violent race war.

The locus classicus for the libertarian critique of anti-discrimination laws is Richard A. Epstein's Forbidden Grounds: The Case Against Employment Discrimination Laws [Harvard University Press, 1995]. Rarely are these views voiced in public. When Rand Paul was first elected to the U.S. Senate from Kentucky in 2010, he said something about the 1964 Civil Rights Act going too far. This is not allowed in polite company. He was so widely denounced that he apologized and has never said anything of the sort since. Thus, the goodness, wisdom, and justice of anti-discrimination law is generally accepted as beyond doubt or discussion.

Ethnic Prejudice, Stereotypes, Discrimination, and the Free Market

Religious Morality and Discrimination

The War on Religion and Conscience

Political Economy


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Copyright (c) 2015 Kelley L. Ross, Ph.D. All Rights Reserved

The Injustice and Tyranny
of Anti-Discrimination Law; Note

Thus, the bathroom near my office at the college where I used to teach originally had "In" and "Out" doors that simply swung if one pushed on them. If I were in a wheelchair, I would have found that convenient. Just roll into the doors and push them open. However, the bathroom was remodeled in tune with ADA requirements. The two doors were replaced by one, which did not push open but had the ADA mandated handle to open it. The door was strongly sprung so that it forcefully swung closed when released. One could even say that it would slam closed.

The result of this was that anyone in a wheelchair because of quadriplegia might be unable to open the door. Even if they could reach and grasp the handle, they might not have the strength to turn it. Unlike a doorknob, however, the handle can simply be depressed to be used (obviously its advantage for the disabled). So perhaps such a person could make it into the bathroom without grasping the handle; but then leaving the bathroom would be a more serious problem. The handle would then need to be grasped, as the door would need to be pulled open in the direction of the person in the bathroom, against all the power of the springs. A wheelchair could be backed up to pull the door open, but, again, if one did not have the strength to grasp the handle, the power of a powered wheelchair would not help.

Even without a disability myself, the bathroom door was so strongly sprung that it was really hard getting it open to enter or leave the bathroom. Because of that (and because the bathroom, after remodeling, was insufficiently ventilated), I began using wedges to hold the door open. Sometimes these were available on the floor. Other times I would actually make a wooden wedge at home and bring it to the college. Those wedges tended to disappear, but after a while available college wedges seemed to be available all the time. Perhaps some janitor realized that there were problems with the door.

Thus, the old "In" and "Out" doors were much friendlier to the disabled (and everyone), while the regulation door, with its one-size-fits-all mandates, was a nightmare, and not just for certain disabled people. There was apparently no means to rectify the irrationality of this; and I am at least grateful to find at many airports, and elsewhere, that bathroom doors have been eliminated altogether. On the other hand, enlightened politicians have occasionally suggested that even private houses be required to be equipped for the disabled. I can just see it, struggling with one of those damn doors in my own home.

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