Anyone who values freedom of association should also recognize the real tradeoff that antidiscrimination law involves. In a free society, Americans have long believed, even people with repulsive views have a right to express them, and to join with like-minded bigots in private clubs and informal gatherings. It is not crazy to imagine that in a more just world, an ideally just world, respect for that freedom would lead us to countenance—legally, if not personally—the few cranks who sought to congregate in their monochrome cafés and diners.
Yet that’s precisely why Paul’s 1.0 argument breaks down on its own terms: at the scene of a four-century crime against humanity—the kidnap, torture, enslavement, and legal oppression of African-Americans—ideal theory fails. We libertarians, never burdened with an excess of governing power, have always had a utopian streak, a penchant for imagining what rich organic order would bubble up from the choices of free and equal citizens governed by a lean state enforcing a few simple rules. We tend to envision societies that, if not perfect, are at least consistently libertarian.
Unfortunately, history happened.
***
“We have to start with some historical context,” e-mailed George Mason Law professor David Bernstein, who is also a blogger at The Volokh Conspiracy. “If segregation and discrimination in the Jim Crow South was simply a matter of law, federal legislation that would have overturned Jim Crow laws would have sufficed. But, in fact, it involved the equivalent of a white supremacist cartel, enforced not just by overt government regulation like segregation laws, but also by the implicit threat of private violence and harassment of anyone who challenged the racist status quo.”
“Therefore, to break the Jim Crow cartel, there were only two options: (1) a federal law invalidating Jim Crow laws, along with a massive federal takeover of local government by the federal government to prevent violence and extralegal harassment of those who chose to integrate; or (2) a federal law banning discrimination by private parties, so that violence and harassment would generally be pointless. If, like me, you believe that it was morally essential to break the Jim Crow cartel, option 2 was the lesser of two evils. I therefore would have voted for the 1964 Civil Rights Act,” Bernstein concluded.
***
The problem of Jim Crow in the South was a direct product of slavery–indeed it was a deliberate and concerted effort by Southerners to reimpose slavery in everything but name. Slavery was a private as well as a public institution, which is why the Thirteenth Amendment was not limited to state action. As such, even private conduct that amounted to “badges and incidents” of slavery should have been reachable by Section 2 of the Thirteenth Amendment, which empowered Congress to make laws to put that provision into effect. It was under Section 2 that Republicans in Congress passed the first Civil Rights Act of 1866, and the Freedman’s Bureau Act. Whether or not these acts were truly within the original meaning of the Thirteenth Amendment is, of course, a matter of dispute. I think the better analysis of the Thirteenth Amendment was explained by Justice Harlan in his dissenting opinions in the Civil Rights Cases and Plessy v. Ferguson. The opposing view that limited the reach of the Thirteenth Amendment was articulated by President Andrew Johnson — a “War Democrat” — when he vetoed the Civil Rights Act in his highly racist veto message. Because Johnson’s reading of the Thirteenth Amendment has largely prevailed among legal scholars of all stripes, Section 2 of the Thirteenth Amendment is generally overlooked in debates concerning the scope of Congressional power over “private” conduct.
***
The original intent of these amendments was — rather plainly, I think — to end slavery and everything like slavery, and to eradicate the original contradiction in the Constitution — that men were free, and yet one man could own another like property or a farm animal — and make the Constitution say what it always should have said…
It is hardly the biggest Constitutional stretch in history to think that the an amendment enacted to end “slavery” based on race can reasonably be read to encompass a harsh racial caste system and de facto peonage. (And on peons: Peasants in feudal society weren’t technically slaves, but they were peons, persons with sharply-curtailed rights and certain obligations (including deference) to their social betters/masters. I think a fair reading of “slavery” includes the idea of “peonage,” too. Unless there is some critical constitutional point here to be vindicated, I do not see any defensible purpose in arguing these amendments outlawed slavery but gave full constitutional blessing to regime of enforced peonage.)…
I disagree strongly with how libertarians (and, frankly, Confederate Revanchists) fight it, by claiming — with those initial 1875-1890 courts, which were in error — that all of this was perfectly legal and no business of the federal government whatsoever.
The federal government had made it its business through these amendments. And I repeat– an amendment is a part of the Constitution, with as much force as any other part of it, whether in the first document or the Bill of Rights.
