By William K. Black
Quito: April 7, 2015
My April 4, 2015 column discussed the Wall Street Journal’s express endorsement of a right of merchants to discriminate against groups they detest. I explained that the WSJ was adopting the position of Richard Epstein and quoted Epstein about the policy question he found to be a “very hard question.” That question was “voluntary” hereditary slavery – he’s in favor of it as a “right” essential to “liberty.” But he admits that he finds it “very hard” to justify the impact of the “voluntary” contract of slavery on the “externalities” – and yes, he is talking about children as commodities. I quoted the passage from Epstein’s famous defense of discrimination in his book Forbidden Grounds to show how zany the policy views are that emerge like mold spores as soon as one endorses discrimination by merchants against groups they despise as a means of increasing “liberty.”
I also noted that, according to conservatives, every leading candidate for the Republican Party’s nomination for the presidency rushed to embrace the right of merchants to discriminate in the Indiana Act as originally passed. I stressed that the Indiana’s Act allowed merchants to discriminate against any group – blacks, Jews, women wearing “immodest” dress, LBGT, or Latinos as long as the merchant phrased his bigotry as a product of his personal religious views. Republican Party strategists try valiantly every couple years to wean the Party from hostility to women and minorities, but the fear of losing in the Republican primary to someone to ultra-right has so terrorized every major Republican candidate for the presidential nomination that they keep on taking symbolic and substantive actions that constitute “revealed prejudices.” That same dynamic explains the Indiana legislature’s Republican members’ votes and Governor Mike Pence’s original enthusiastic support for authorizing merchants to discriminate on the basis of factors such as race, gender, religion, or sexual orientation. It is odd that a law that would allow a merchant to discriminate against customers on the basis of their religious beliefs could be labeled a bill protecting religious freedom. One might hope the media would point this out in their articles and on radio and television rather than parroting the original Indiana Act’s oxymoronic title.
I explained that this fear of the primary opponent from the ultra-right was acute in Indiana because the most respected Republican Senator, “Dick” Lugar, was annihilated in the primary by a loon. The loon was so extreme (describing women who were impregnated by their rapists as receiving a “gift” from G-d), that he lost in the general election even though Indiana is an infra-red state. The true “gift” that keeps on giving in terms of U.S. presidential elections is the Republican Party’s palpable hostility to enormous numbers of Americans. Mitt Romney even gave these people a number – he said that it was his job if elected not to represent the 47% of Americans.
My April 4 column was responding to the WSJ’s claim that such discrimination by merchants represented “dissent” and that “liberals” (by which they meant often conservative major business leaders) were acting outrageously because they did not “tolerate” such “dissent.” The great thing about the modern WSJ is that it only takes a few hours to start crazy and then spin into full zany. Sure enough, by April 6, 2015, William McGurn (WSJ alum gone even wackier as the New York Post’s editor), had written in the WSJ calling for libertarians to go full-Epstein and endorse merchants’ “right” to discriminate against groups they despise.
“Take New York University’s Richard Epstein, who is arguably America’s leading libertarian law professor.”
Yes, there are few things better designed to increase “liberty” than to encourage merchants to refuse service to whatever groups they hate. If Richard (“voluntary hereditary slavery”) Epstein is the person you wish to make the leader of your intellectual movement, your next argument will be that we need to allow merchants to discriminate against anyone they hate without the bother of inventing a “religious” pretext for that hate. Sure enough, McGurn says we need to repeal the Civil Rights laws that ban private discrimination in housing, employment, and against customers. We have to do on the grounds of “freedom.” America lost its freedom when it lost Jim Crow.
“Undergirding the libertarian argument is as usual a larger argument for freedom. Far from simply privileging religious freedom, the libertarian case is built on a firm belief in the freedom of association for all Americans—and an abiding and healthy distrust about imposing anti-discrimination laws on private business providers unless they hold some kind of monopoly.”
I would have written that claiming that libertarians should lead a movement calling for the return of an absolute right of merchants, employers, and landlords to discriminate against despised minorities (or majorities in the case of women) results in “undermining” rather than “undergirding” the entire concept of being a “libertarian.”
Why exactly it is “healthy” to “distrust” the prevention of discrimination by merchants, employers, and landlords is not obvious to me. But then, I witnessed private sector elites force out of office the Nation’s most respected financial regulator, Joe Selby. They forced him out on the “grounds” that he was gay. Federal Home Loan Bank Board Chairman Edwin Gray personally recruited Selby to be the top professional supervisor in our region where we most desperately needed him to stem an epidemic of fraud among Texas and Louisiana savings and loans. The loss of Selby cost the Nation greatly. I saw Charles Keating’s lieutenants try to do the same thing in our office in San Francisco. Keating claimed that we objected to his massive looting of Lincoln Savings because we (the Federal Home Loan Bank of San Francisco) must have been gay and must have been out to destroy him because he was homophobic. I also personally experienced the “security clearances” we went through in which the questioner demanded that I inform him of which of my colleagues were LGBT. He threatened to recommend that I be denied a security clearance (essential to my job) because I refused to even respond to such a disgusting “investigation.” In my experience, discrimination is one of the most damaging assaults on freedom and liberty.
McGurn emphasizes that Epstein, who supports marriage equality and loves businessmen’s ambitions, has written to decry “the relentless ambitions of an ascendant gay rights movement.” Yes, it is clear that we must dread the relentless ambition to be treated by merchants and employers with equal respect. The “libertarian” positions quoted by McGurn all agree that gays are way too pushy. They want to be treated as first class citizens and have their marriages treated that way. The “libertarians” decry the gays’ unwillingness to accept a second class citizenship that gives them most of the same rights as non-LGBT citizens. Astonishingly, LGBT citizens are unwilling to follow this sage advice to accept second-class liberty. Even more distressingly, as we can see from the reaction to the Indiana law (a reaction that would be vastly more intense if people knew that the original “religious freedom” act could be used by merchants to deny customers service on the basis of the customer’s religious beliefs (or lack thereof) – including Muslim’s and Jews denying service to women they considered to be dressed immodestly.
But heck, as Representative Cotton explained, all politics and discrimination is local. In Iran they might jail you for being LGBT, and in Jerusalem – both the Muslim and certain Orthodox Jewish neighborhoods a women who was not dressed “modestly” or who was simply walking or riding a bus in what the Orthodox males considered the wrong manner, time, or place) would not only be refused service by the merchants, she would be verbally and physically attacked. Now that’s real “religious freedom” (aka “dissent”) that a McGurn “libertarian” could love. And remember, as McGurn quotes approvingly, anyone who complains about discrimination by merchants, employers, and landlords is “totalitarian.”
McGurn thinks that now, in response to the public revulsion at and ridicule of Pence’s Self-Inflicted Pratfall, would be a great time for “libertarians” to come out of the closet and support the repeal of the civil rights laws banning private discrimination. The “bring back Jim Crow” movement is the perfect symbolism for McGurn’s oxymoronic version of “liberty.”
In the course of 10 days, we have witnessed the leading Republican candidates, supposedly desperately trying to rebrand themselves (ala that great Latino Jeb Bush) as Latino-friendly, rushing to embrace a law allowing merchants to discriminate against Catholics, Jews, and Latinos and the pages of the WSJ used to urge libertarians to brand themselves as “pro-the-right-of-merchants-to discriminate” on the basis of religion, race, gender, sexual orientation, nationality, or lack of “modest” dress by women.
We will see how many libertarians want to channel their inner Epstein. By next week they will exploring the “very hard question” of whether libertarians should also start a national campaign to endorse another one of Epstein’s suggested means of advancing “liberty” – allowing “voluntary” hereditary slavery. One cannot compete with unintentional self-parody, but unintentional “libertarian” self-parody is in a class by itself.
But I do not think many “libertarians” support McGurn and Epstein. I invite them to come forward and say so.
Sorry, I don’t get it. If someone doesn’t want to do business with you because of who you are, why would you want to force your business on them by government edict? I’d be walking out the door, shaking off the dust from my feet, and glad to be enlightened concerning where my money was going to go.
Freedom of Association, which you, Mr. Black, refuse to say by name, is the most essential freedom. It is freedom of choice. Its the right to chose who you want to be with and interact with on a daily basis. Its the base of the right of being able to chose who you marry, or who will have your children, or who will be your business partner(s) or who you decide to hire as an employee, what families you and your children will interact with, who you socialize with, and where you want to live?
I know you clearly don’t believe Americans should have a right to freedom of association in economic matters, in hiring, and in housing decisions – these questions must be filtered through the bureaucracy and judiciary whenever someone claims discrimination.
Why don’t you come right out and say whether we have a freedom of association in anything at all?
Is there any limit to the supposed power of the state to tell us who we must spend any given moment of our lives with? If there is some limit, what factor or principle sets that limit? Why for example, do we get a free choice of who to marry, but not who to do business with? Isn’t marriage and childbearing far more a compelling state interest given that it is the future of the state itself, than some ephemeral economic transaction?
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I think we should not do the disservice of associated the term “liberty” with these viewpoints by calling these people “Libertarians.” I am trying to promote the term “Neo Feudalists,” as I feel it is much more descriptive of the type of world they would bring about if given free rein. When people talk about this Indiana law, it’s often with examples of whether or not one person, based on being LGBTQ, or Muslim, etc. can walk into a shop and buy, say, a slice of pizza (bad enough, don’t get me wrong), but the defense of the law is offered in terms that would defend discrimination by private entities in any situation. So these people basically believe that a private business should, yes, be able to refuse to sell you something, but also, refuse to hire you, and a private educational institution (and they also think they should ALL be privatized, pre-school through higher ed.) should be allowed to refuse access on the same grounds, a private hospital should be allowed to refuse treatment, a private law-enforcement agency or fire department (I bet you don’t have to search very hard to find the same culprits endorsing these ideas) should be allowed to refuse help on the same grounds… etc., etc.
So, you have people who believe you should be able to make and enforce whatever rules you want on your own private property, who also believe in a gradual elimination of the very notion of public property and institutions (drowning in bathtubs and all that), and let’s not forget no laws to protect against the massive accumulation of wealth by a very few or against monopolies and the like. Seems like a recipe for massive, undemocratic corporate city-states, where the rest of us live with little or no property by the grace of the CEOs (if they don’t just revert back to calling themselves “lords” or “kings”). So, yeah, I think “neo-feudalists” is a pretty good term for these types. Not that I think we’re necessarily heading that way, since the rest of us wouldn’t necessarily let them get that far, but it is the logical extension of that kind of thinking.
100% correct, I’ve said the same for decades. Feudalism, is the end game – just as it is in North Korea & Cuba etc.