Civil Rights Irony

"My old man was so full of hate that he didn't know that being poor was what was killing him."
--Agent Rupert Anderson (Mississippi Burning)

We have noted that there are two primary definitions of equality in the social context. One definition pertains to equal treatment under the law. This definition appears to be the one preferred by the Founders as implied by the country's founding documents. Let's call it the classical definition.

The other definition pertains to equality of income (or economic resources, or opportunities, or living standards). The definition has gained popularity over the past century with the rise of the Progessive movement. So let's call this one the progressive definition.

Not only are these definitions diametrically opposed w.r.t. liberty, but they also conflict in their implications for policy. Policy that is developed on the premise that both definitions of equality can be supported is likely to be confusing and unconstitutional in some manner.

An example of such policy is Public Law 88-352, more commonly known as the Civil Rights Act of 1964. The Civil Rights Act is divided into 11 sections, or 'Titles,' that are intended to address various issues related to discrimination and segregation.

Many sections seem consistent with the classical defintion of equality. Title 1 guarantees equal treatment for all voters. It is sad to think that this policy actually had to be written into civil code--nearly 200 years after the Declaration and Constitution generally guaranteed it in the name of liberty. Sections such as Title 5 related to the desegregation of public schools and Title 6 that prohibits discrimination in federally assisted programs, also seem consistent with the classical definition because they address equal treatment of public (shared) property.

Two sections, however, support the progressive definition of equality. Title 2 prohibits discrimination in places of public accomodation, which is specified to include privately owned businesses. Title 7 mandates 'equal employment opportunity' in hiring practices with the scope again including privately owned businesses. These conflict with the other sections because private property owners and 'protected classes' no longer receive equal treatment under the law. Private property owners are required to surrender property--which includes economic resources as well as the decision rights over them--to other groups (i.e., the 'protected classes'). This is unequal treatment under the law. Property owners are being treated differently than others. Protected classes gain access to resources that are not rightfully theirs.

The central conflict of the competing definitions of equality is well captured in the Civil Rights legislation. It boils down to this: Should the liberty of one group of individuals be infringed upon in order to advance the welfare of another group?

A tangential issue involves how discrimination can be decisively demonstrated. Sadly, most of the remaining sections of the Civil Rights Act of 1964, and well over half the total page count of the PL, are directed towards the establishment of the bureaucracy to oversee enforcement of a highly subjective behavior.

Finally, it must be noted that in truly free markets, chances of persistent discrimination based on race, gender, religion, etc are extremely low. Producers who make bigoted decisions lose customers as well as talented workers to entrepreneurs who recognize the opportunity. Bigoted operations get weaker and disappear.

Bigoted operations are likely to persist when markets are not free. For example, regulations that discourage entrepreneurs from entering a bigoted industry are likely to make discrimantory behavior more durable.

Ironically, regs like those imposed by Public Law 88-352, which raise cost of business thru EEO and compliance programs, are likely to do just that.

Another case of unintended consequence writ large...