THE RIGHT TO BE UNCIVIL

A few months ago a dinner discussion with a friend triggered a reference to Barry Goldwater, the late senator and presidential contender who lost to Lyndon Johnson in 1964. I was 12 at the time and apolitical but recall him being portrayed as a racist by the New York media. My friend, who is neither stupid nor racist, shocked me with the comment that he agreed with Goldwater’s vote against the 1964 Civil Rights Act.

The fact that Goldwater’s dissent had nothing to do with racism is beside the point. My friend’s argument distilled to the libertarian belief that the government shouldn’t be legislating against people’s prejudices of any kind, no matter how appalling. Coincidentally, this discussion occurred at a time when I’d been thinking quite a bit about the evils of racism. Also coincidentally, I was in the process of reading a book by Lawrence Hill, Someone Knows My Name. This historical novel reconstructed in distressingly graphic detail the slave trade of the late 18th century, chronicling the life of one extraordinary black woman.

At dinner, after vehemently denying the validity of my friend’s argument, I got to thinking why a reasonable, intelligent person would even debate the issue. And I realized it merited some thoughtful analysis.

We discriminate all the time: what clothes we wear, what food we eat, the colors we paint our walls … with whom we chose to eat dinner. People often use the terms discrimination and prejudice interchangeably. Discrimination is nothing more than choosing according to one’s preferences. Prejudice, on the other hand, involves prejudging a person, thing or idea based on criteria that may or may not be valid. Things become more complicated when the actions are applied to race, religion and sexual preference.

In some ways the third category is the thorniest. In September of last year, a photographer lost her court battle after refusing to take a job at a gay wedding. In a separate incident, a baker closed his doors after being targeted legally by a lesbian couple for refusing to sell them a wedding cake. In both cases, the accused cited moral opposition and their right to free expression.

To prevent injustice, our laws have delineated certain protected groups that are excluded from our right to discriminate, regardless of whether this is motivated by prejudice. My friend believes that the marketplace should be allowed to mete out the consequences. For instance, businesses that engage in racial discrimination would have less patronage and might be driven from the marketplace by censure. In a perfect world, this argument might have validity (although I would argue that in a perfect world racial discrimination wouldn’t exist). His argument fails to take into account the concept of tyranny of the majority.

Our Founding Fathers feared this enough (otherwise known as “mob rule”) to make this country a democratic republic, not a democracy. If we were to remove the prohibition on racial discrimination, what protection would a minority have against local majorities recreating the Jim Crow laws of the early part of the twentieth century?

With the deinstitutionalization of racism over the last few decades (which is not equivalent to its absolute abolition) one might argue that there is now a substantial economic cost to racial discrimination and segregation that might validate my friend’s argument. We must not forget, however, that this economic incentive to “do good” was not operative in the relatively recent past, when these detestable practices were not only permitted, but condoned and even encouraged in some parts of the nation. It’s conceivable that pockets of like-minded bigotry could coalesce to create regional monopolies that would, in essence, impede market corrections, forcing the subjugated minorities to flee to locations distant enough to uproot them. The reprehensible nature and the consequences of this behavior, in my opinion, make it a moral imperative to act more quickly than market forces can to correct it; we need laws to preempt it. Freedom to discriminate is, in a sense, like freedom of speech. Yelling “fire!” in a crowded theater is as taboo as the freedom to subjugate.

Libertarianism without limits turns liberty into anarchy.

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