By William K. Black
Quito: April 8, 2015
Well, the key to getting strong responses from readers is now clear. All I need to do is violate the standard rule on the three subjects to avoid to increase the chances of polite conversation – sex, religion, and politics. My series of three articles on Indiana’s original Act authorizing discrimination discusses each of those subjects. I thank Andrew for commenting on my third installment, which addressed the op ed in the Wall Street Journal urging “libertarians” to come forward to lead the charge to repeal all laws banning discrimination in private contracts. Merchants, landlords, and employers should all be allowed to discriminate against any group without the necessity of creating a religious pretext for that discrimination. I urged libertarians who were not nostalgic for the return of Jim Crow and the Klan’s embrace of discrimination to write and express their support for laws banning discrimination against groups in the marketplace. None has taken up my invitation, but I thank “Andrew” for writing to express his support for the repeal of laws banning discrimination against disfavored groups in the marketplace.
Andrew
April 8, 2015Sorry, 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?
My response:
I hope that Andrew is exaggerating his inability to feel even the slightest empathy for the victims of discrimination or the slightest familiarity with the literature on effects of discrimination on the victims. We can agree that the key is that he doesn’t “get it.”
“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.”
Andrew’s claim as to how he would react to discrimination – it would make him “glad” harkens to one of the most infamous passages the Supreme Court has ever issued in an opinion – and the most devastating takedown of the Supreme Court’s mendacity.
The disgraceful Supreme Court decisions, Plessy v Ferguson, 163 U.S. 537 (1896), upheld racial segregation under the rationale of “separate but equal.” The Court upheld Louisiana’s law segregating rail cars against the claim that the law violated the equal protection clause. The two sentences from Justice Brown’s opinion for the Court that have haunted Supreme Court Justices of conscience for over a century read:
“We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.”
Richard Kluger quotes this passage from Plessy in Simple Justice (1976) and then comments:
“Of all the words ever written in assessment of the Plessy opinion, none have been more withering than those … [of] Yale law professor Charles L. Black, Jr., who [said that in] … the two sentences… ‘The curves of callousness and stupidity intersect at their respective maxima.’”
I would add the curve of mendacity also intersected at the same point. The Supreme Court was not so much “stupid” in Plessy as it was dishonest.
Human beings are not “glad” to learn that a merchant refuses to serve them because they are Catholics,” or that they will never get their dream job in commercial banking because they are Jews, or that their daughter was called a “whore” by the landlord when she drove 45 minutes in response to a rental ad, but showed up without a head covering. Normal human beings are outraged, greatly inconvenienced, and internalize the bigotry.
So, why would I want to “force [my] business on them by government edict?” Well, first, because I’d like my dream job in commercial banking. (Jews were in fact excluded from commercial banking for over 50 years.) I’d also like our daughter not to be called a whore by the landlord who refused to rent the apartment that was the right price and the right location for our daughter’s new job. I know that our daughter would not react by being “glad” to be called a whore because the landlord considered her clothing “immodest” and be denied the apartment, particularly after a 45 minute drive out to where her new job would be. (That example, thank G-d, is hypothetical.) Our daughter would be devastated and my wife and I would be almost incapacitated with rage and the inability to do anything once Andrew repealed the anti-discrimination laws.
I know from historical accounts that Catholics in Indiana during the height of the Klan’s domination of that state were not “glad” to be denied services by merchants who were Klan members or intimidated by Klan members. The nature of bigotry is a noxious mixture of hate and fear. While there are polite bigots there are many bigots who not only wish to deny you, your children, your spouse, and your best (Irish Catholic) friend who you have invited to join you as your guest at a restaurant to celebrate her birthday service but delight in telling your party to leave the restaurant because “we don’t serve her kind.” And, no, real humans are not “glad” to have this happen to them.
Andrew seems to argue that it is impossible to distinguish between the marketplace and personal relationships when it comes to “freedom of association.” As he observes, we let people pick their spouses and friends, and we all know that such choices are frequently constrained by prejudices. He makes this statement, which he seems to feel is real challenge.
“Why don’t you come right out and say whether we have a freedom of association in anything at all?”
Yes, we have a right, whatever our Mom believes, to decide who we love and hope they will love us. I oppose arranged marriages, even though it is the family rather than the State that arranges marriages.
Love, however, has a way of confounding prejudices once people from diverse backgrounds meet. Our anti-discrimination laws, by reducing residential segregation and the exclusion of minorities from universities and jobs (the three principal places people meet in the real world) have remarkably expanded “freedom of association.” Intermarriage rates have expanded dramatically in the United States as a result. If you want to expand the scope of “freedom of association” in our most intimate relationships (which Andrew characterizes as “the most essential freedom”) then the single best way of doing so is to have effective anti-discrimination laws in housing, employment, and education. These laws are also one of the best means to reduce bigotry because as Americans increasingly associated with different ethnic groups we discovered overwhelmingly how much we had in common with each other. It is not simply intermarriage, but friendships among diverse Americans that became increasingly common. No one mandated this, it was simply the product of associating with diverse people in the schools and workplace. It is a (pun intended) pale version of “freedom of association” if our right to choose our friends and romantic loves is limited to a subsection of Americans who look just like us because we live segregated lives due to discrimination in education, employment, and dwellings.
Andrew conflates the unrestricted right to pick your spouse with the “right” to tell a black man that your firm does not hire blacks, the “right” of the supermarket not serve women who are not “modestly” dressed, the “right” of a city’s largest landlord not to rent to Jews or LGBT, and the “right” of a private (secular) college not to admit Muslims. He says that the right to choose your spouse is “the most essential freedom.” He implies that the same must be true of the three decisions in the marketplace and the secular private college I just discussed.
Andrew assumes that “economic transaction[s]” are so “ephemeral” that they are unworthy of a democratic government’s concern. Higher education lasts 4-10 years and forms for most Americans who complete higher education one of the most important bonds in terms of institutions and friends of any aspect of our life. For many of us, it is where we meet our future spouse. Employment relationships can last for decades and are a vital part of how many Americans define their lives. Among our first questions upon meeting someone is “what do you do?” We live in our apartments for years, and in our homes for decades. So, no, the civil rights laws’ anti-discrimination provisions do not relate to “ephemeral” and inconsequential relationships. These facts also explain why humans do not react to being denied entry to university, the right to buy a home or rent an apartment, or the denial of their dream job on the basis of discrimination as to their race, gender, or religion by being “glad” or blithely unconcerned because the results of such denials are so “ephemeral” that they are inconsequential.
Businesses are given licenses to serve the general public, particularly our most dominant form of business – the corporation. If they are unwilling to serve the general public because their hate for a particular group, such as blacks or Jews, as employees or customers is so palpable that they cannot function, then they are in the wrong line of work and perhaps even in the wrong Nation. But real life, and the literature, agree that is the rarest of business persons confronted by a ban on discrimination in the marketplace that suffers such associational terrors from employing a black person or serving a Jewish customer that he chooses to sell the business to avoid being compelled by a “government edict” to have a marketplace relationship with such groups. What has happened instead, commonly, is that the businessman’s bigotry is diminished when he actually has a marketplace relationship with black employees and Jewish customers.
The reason that bigotry against LGBT citizens has fallen so rapidly is that straights were already associating with gays closely – they simply did not know they were associating with gays. As gays “came out” Americans learned that their friends, relatives, and colleagues were LGBT. Instead of gays being the sinister unknown, they turned out to be your buddy who had the same concerns about his mortgage, his chances at promotion, and his sick mother that you had. Other hated minorities, however, rarely occurred in your own family and were easily observable – and therefore easily avoided. The civil rights acts’ bans on discrimination in the educational and commercial spheres, therefore, provided a far more critical role in reducing discrimination against these more observable minorities. Again, this greatly increased the scope of “freedom of association.” And nobody, despite the civil rights acts, other than your mother, tries to tell you who to marry.
Andrew is dubious that discrimination exists, and outraged that the victim of discrimination could have recourse to the rule of law.
“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.”
No I do not think that employers and landlords should be allowed to refuse to employ, rent to, or sell to black people. Yes, the victim needs to “claim discrimination” to start the defense of their rights under the law. Yes, this triggers legal rights to bring a claim before the judiciary. But why is Andrew so suspicious about claims of discrimination? Any historical awareness would make it clear that discrimination was the norm. And why the hostility to the “judiciary?” The judiciary is overwhelmingly strongly supportive of business interests, so the judiciary is rarely a hostile venue for business people.
Andrew Endorses the Absolute Legal Power of the CEO
Andrew asks me: “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?” Andrew has raised a good point. What are the limits on the business CEOs’ powers under Andrew’s view of an absolute right of the CEO to discriminate against any group or individual for any reason and to govern relationships through “voluntary” contracts? There are none.
Here is what happened in the U.S. when there were no protections against discrimination in the marketplace. We have seen the reality of what Andrew calls “freedom of association” as ruled by CEOs. I’ll begin with an aspect of his view of “freedom of association” that I have not yet discussed – unions. Favor a union? We won’t hire you. If you favor a union after you are employed we will fire you on the spot. How did the employer learn of workers who supported unions? They had undercover informers hired from detective agencies infiltrate workers’ meetings. Oh, and one company did not simply fire you, they blacklisted you throughout the employer association. Company towns and stores would get the workers in long-term debt so they were easily extorted to resist unions.
Disfavored minorities: the CEO has an absolute right to refuse to hire them, pay them far less if he does hire them, and constantly verbally abuse them. The landlord, real estate agent, and seller have an absolute right to discriminate – and discrimination in housing was the norm. People of color and women were systematically denied entry to most institutions of higher education. Jews were limited by quotas. It was nearly unthinkable to be openly gay and seek admission. It was common for merchants to deny services to blacks at hotels and restaurants. The victims of these forms of discrimination would have zero legal rights for protection from such discrimination or any redress.
Women: the CEO has the absolute right to refuse to hire them, pay them far less if he does hire them, and constantly verbally abuse them. But since most CEOs and corporate big shots are straight males, they can also engage in sexual harassment with impunity. In particular, they can condition hiring, pay, retention, and promotion on providing sex. After all, it’s obviously the women’s fault if they stay at such a firm! They must be whores pretending to virtue if they stay and complain about the officers’ behavior. After all, from Andrew’s perspective this is all “consensual” behavior arising from “freedom of association.”
Your Wife’s “Freedom to Choose” Sex with the Slimy CEO or Being Fired
There were no legal limits on CEOs’ power in any of these areas. Absolute power corrupts absolutely. The victims had no one they could complain to. The CEOs’ absolute legal power was not “filtered through the bureaucracy and judiciary whenever someone claims discrimination” because no one would have any legal power to protect the victims of discrimination of anti-union retaliation. Nor under Andrew’s plan would the victims of discrimination have any right to petition their democratically elected government for redress. Under Andrew’s plan it is absolutely illegitimate for the government to take any action against any of the forms of discrimination and anti-union retaliation I have set forth. That is true even when the CEO tells your pregnant wife that unless she has sex with him he’ll fire her on the spot – two days before her pension vests. The “freedom” part of Andrew’s vision of “freedom of association” in the marketplace is a cynical oxymoron designed to place the business elites in a position of absolute legal power over the non-elites. Your pregnant wife has the “freedom to choose” whether to be fired or coerced into sex with her slimy CEO.
Whistleblowers
The worst CEOs, of course, positively wish to restrict your freedom of association, e.g., with union organizers, and will have the absolute legal right to do so should Andrew get his way. At Charles Keating’s Lincoln Savings, for example, he required senior officials he appointed to promptly fire someone. They people being fired hadn’t done anything wrong. Indeed, they were far more likely to be fired for doing the right thing and acting ethically. But Keating was a past master in the realpolitik of “freedom of association” in the workplace. He was an all-purpose bigot who despised people of color and gays. The requirement to fire someone was a “signaling” device that you were the right kind of executive, by which he meant the worst kind of executive. So ask yourself what happens to whistleblowers in a world run under Andrew’s divine rights of CEOs regime? They have no protection, for any protection would have to come from a “government” “edict” that Andrew despises.
There can be few more painful restrictions on a CEO’s “freedom of association” than to require that he continue to associate with the whistleblower who is exposing the CEO’s felonies to the Department of Justice and the FBI. This is why the probability of retaliation against whistleblowers closely approximates 1.0. We do not have to speculate about the dominant approach of CEOs to whistleblowers today. CEOs overwhelmingly sought to have the SEC force whistleblowers to first bring notices of the CEOs’ crimes to the corporation controlled by the CEO! That would, of course, alert the CEO to the investigation by the SEC and the FBI and allow them to destroy documents and retaliate against the whistleblower. The industry position was outrageous – and close to universal – because Andrew is correct that felonious CEOs are desperate to end their association with whistleblowers. But criminal CEOs do not simply fire whistleblowers, they seek to discredit them. Keating, for example, paid for at least two private investigations of me in order to seek to discredit me. I was not the only regulator subjected to such investigations – which the corporation pays for even though the CEO is looting the corporation.
Corrupt CEOs routinely settle with whistleblowers through agreements that bar the whistleblower from making public the CEOs’ and the corporations’ crimes. CEOs are actively pushing employment contracts that give the workers no rights but require them to promise not to blow the whistle to the SEC and DOJ if they discover crimes by the officers or the corporation. Workers can be not simply fired, but sued, for doing the right thing. CEOs and their lackeys also encourage other employees to make the whistleblower’s life miserable.
I wrote a series of four columns recently about Richard Bowen and Sherry Hunt, the Citi whistleblowers to whom the Nation owes such thanks. I showed that they, and Bowen’s boss, suffered intense retaliation. Under Andrew’s precepts the criminals at Citi could retaliate against Bowen and Hunt with absolute impunity.
Conclusion
Andrew views the harm of barring discrimination in the marketplace and barring retaliation against union workers and whistleblowers as so self-evident that he does not attempt to demonstrate the harm of such laws. The strong opposition of the CEOs of many firms to the original Indiana Act demonstrates that they do not view anti-discrimination laws as harming their “freedom of association.” The business community has had over 60 years of experience with anti-discrimination laws and has never suffered an effort by “government edict” to tell them who they should date or marry. They did, however, probably suffer from efforts from Mom. But even libertarians have no solution to the desire of Moms to give their children advice on their romantic interests.
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