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December 25, 2004

equality of opportunity: two

Don Herzog: December 25, 2004

A while ago, I started thinking about equality of opportunity.  I suggested that the familiar contrast between equality of opportunity and equality of outcome is too quick.  So is the familiar maneuver of accusing the left of being committed to equality of outcome, a gruesome ideal that requires endless coercion for no point.  Instead, I suggested that any viable conception of equality of opportunity requires some accompanying conception of equality of starting points, and in turn that any viable account of the latter has to focus on a minimally acceptable floor, not literal equality.

Here I want to (barely) sketch a case for the scope, reach, and justification of antidiscrimination laws.  A historical point first:  these are not some new and odd incursion on private property.  Common-carrier doctrines stretch back centuries in the common law:  if you held yourself out to serve the general public in transporting goods, people, or messages, you couldn't simply turn prospective customers away and say, "it's my property, I can do as I like."  Those principles were quickly extended to inns, taverns, and the like:  places offering "bed, board, and hearth" to travellers similarly couldn't turn prospective customers away.  There were exceptions:  you didn't have to take someone diseased and contagious, say, into a coach or an inn.  But the general rule was, no discrimination against paying customers.

A line from Blackstone's Commentaries -- "There is nothing which so generally strikes the imagination and engages the affections of mankind, as the right of property ; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe" -- is sometimes cited as a prize nugget of classical liberal insight on property rights.  But Blackstone invokes it only to launch a long and complicated history of how this intuition properly gives way to wide-ranging historical developments.

These historical points don't settle what we should do; I introduce them only to continue my nefarious project of showing the deep continuities between us left-liberals and our classical-liberal ancestors.  If you're a libertarian, you're free to argue that the line in Blackstone is (more or less) right as it stands.  And then we have the usual fun dilemmas:  should I be permitted to buy a donut ring of property surrounding yours and then refuse to allow you to leave your lot, on the grounds that it would be trespass?  Less whimsically, absolutism about property has always yielded in the face of pollution.  In Anarchy, State, and Utopia, Nozick has a brief discussion oddly set off in italics.  A subordinate clause  -- "Since it would exclude too much to forbid all polluting activities" -- gives away the game.  On the absolutist view, if a single propertyholder refuses to consent to having pollutants enter her property, that should be enough to shut down industry and other polluting activities.  If you think that view wacky, you're now playing the same game we always do, the game I'm about to continue:  what sorts of property rights ought to be extended in what sorts of social settings with what sorts of conditions and exceptions?  In the modern image, property is a bundle of rights, not a simple unitary right, and it is shrill and misleading to think of the spectacularly complicated rules about the bundle as the eradication of private property.

I think antidiscrimination norms ought to be extended in some public settings -- in line with the Civil Rights Act, to labor markets and public accommodations.  Here "public" doesn't mean, "title held by the government."  It means, "generally open to strangers."  (Notice that in the former sense, all the firms of a capitalist economy are private; in the latter, we distinguish the private ones, owned say by the founding family, from the public or publicly traded ones, where anyone can plunk down cash to buy shares of stock.)  Critics on the right and left have complained that antidiscrimination laws make their alleged beneficiaries think of themselves as victims and spend a lot of time whining.  I think that criticism overplayed.  And yes, you can write down simple models in which markets will weed out and punish discrimination.  But you can also write down models -- George Akerlof has -- in which markets won't do that.  (Diagnostic test:  you can tell whether your attachment to free markets is principled or tactical by asking, would I stick with markets even if I thought that they'd never eradicate unjust discrimination?)  A market with antidiscrimination norms will not somehow guarantee that blacks and Hispanics will earn as much as whites, women as men, and so on.  But it will guarantee everyone a fair shot at success, the kind of starting point I think is required by equality of opportunity.  Likewise, antidiscrimination regulations in housing markets, which I also support, needn't produce desegregation.  If each household wants to live in a neighborhood that is just 51% people "like us," you'd observe 100% segregation; if people have varying preferences, you'd observe varying patterns.  So no equality of outcome is in the cards, and that's just plain fine.

Are there limits to what I'd have the state do here?  You bet.  First, there are many settings in which I wouldn't legally impose antidiscrimination rules.  Not in churches, not in small private clubs, not at people's dinner tables or wedding parties, and so on.  The workplace and public accommodations, though, are settings where everyone needs and deserves access on equal terms.  There are as always lots of controversies at the margins.  I might disagree for instance with facets of current American contract law.  But I also see no reason to think the regime is fundamentally wrongheaded.

Second, contempt for any number of pariah groups -- women, workers, Jews, blacks, gays and lesbians, the disabled, hairdressers (yes, really, at least in Britain around 200 years ago), &c ad nauseam -- has a viciously lively life of its own in many social settings.  I don't believe that equality under the law or antidiscrimination legislation is enough to eradicate that contempt, but I wouldn't have the state go further.  I would never sentence people who offend against antidiscrimination norms to attend classes in sensitivity training -- yuck!  I'd just tell them to shape up or ship out.  Objects of contempt are still going to have to struggle for dignified public standing, but I think those struggles should be left to private actors, not legislators and bureaucrats, and fought with such nonlegal tactics as debates, cartoons, novels, rallies, sermons, leafleting, and the like.  This, for me, is a crucial example of a political struggle the state should have nothing to do with.

"But the state doesn't belong in the free market!"  Well, if that means the state shouldn't be slapping on tariffs to protect Harley-Davidson bikes or steel, shouldn't be imposing wage-price controls or subsidizing tobacco, I quite agree.  But the state is of course extensively involved in setting up the legal framework of the market:  so the law of contract, property, and tort.  I see antidiscrimination laws as the same kind of ground rules.  They "intrude" on the market if and only if they're unjustifiable.  So yes, when the Civil Rights Act bans racial discrimination in the workplace or in public accommodations, it does indeed limit the property rights of employers, hoteliers, and the like, and if needed the state will exert coercion by intervening or supplying private rights of action as remedies.  But if the Act's provisions are justifiable, there's no more room for complaint about the coercive might of the state than there is when the state strips slaveholders of the rights to buy and sell people, or strips aristocrats of the right to conduct private wars with their armed retainers, or refuses to enforce contracts based on fraud.  And once we give up on absolutism about property, it's easy to see the case for antidiscrimination measures.


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» Pollution, Environment, and the Marketplace from The Debate Link
Earlier, I wrote a long post on the limits of the market system, inspired by a post by Michigan Law Professor Don Herzog. It received to very insightful comments by my friend John Hall (he's "anonymous"), as well as my longtime reader Randomscrub. A ... [Read More]

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Posted by: oliver

If "the market" in which companies compete were like an actual market in the public square, then very simply it's the shoppers who choose what and from whom they buy from among the options available. Vendors may be providing goods and services only to buyers, but they are providing a choice and an option to everybody. I think that understanding in play when licenses to vendors are issued. I also think that understanding is in play when we allow ads to pollute the beauty of the public byways, radiowaves and mental space, because they are providing something for everybody--a choice, an option. Likewise the dollar price beside the catalog item is implicitly an antidiscrimination statement: Absent any fine print restrictions about shipping charges or black-out dates, it's false advertising. If that universal option isn't there, then we shouldn't allow the ad or the license to operate in the marketplace.

Posted by: oliver | Dec 25, 2004 1:06:02 PM

Posted by: oliver

I meant: "Absent any fine print restrictions about shipping charges or black-out dates, it's false advertising TO EXCLUDE OR CHARGE EXTRA TO ANYBODY."

Posted by: oliver | Dec 25, 2004 1:07:46 PM

Posted by: oliver

I think choice/option/opportunity are inherent to our idea of property too. If it's my car, I get to drive it. Only the police get to boot it--and I don't know the law but I wouldn't be surprised if that were construed as a form of "seizure," though the physical thing we think of as the property hasn't gone anywhere.

Posted by: oliver | Dec 25, 2004 1:12:58 PM

Posted by: D.A. Ridgely

Well, yes, but if storming the castle of absolutist libertarianism is your mission, I think you’re going to find it mighty lonely once you get inside. If there are any absolutist libertarians in the sense you suggest, I don’t know any. (“Hell yeah, Don, if a barking mad lunatic wants to buy himself a tactical nuclear weapon, I say it’s none of the state’s business to stop him! Twelve year olds wanna buy crack at the local drug store? What’s the problem?” Yeah, sure; the Cato Institute and Reason Foundation are just swarming with such folks.)

And yes, property in any seriously useful sense is a creature of the state; and yes, the common law is filled with the likes of the common carrier doctrine, constructive easements, etc. Of course, those doctrines arose out of recognition, in the first case, that such ‘public’ facilities and services, though privately held, were effectively monopolies and, in the second case, from a theory of real property that held that all land was ultimately owned by the crown, which could bloody well parcel out rights any way it saw fit. (A brief history of Anglo-American property law: William gets screwed in France, so he and his buddies go off and invade England. They win, but they’re much better at fighting than farming, so William subdivides. His buddies do the same thing. Finally, this ever dwindling ‘bundle of rights’ makes its way down the social food chain far enough to people who actually know how to milk cows and raise crops. Feudal incidents (i.e., taxes) ensue. Peers and nobles figure the crown is taking too big a cut (hmm, that sounds familiar), and slowly whittle away at the terms of the original arrangement. Land becomes freely alienable, clever lawyers figure out how to devise Blackacre to A for the use of B – “Hey, we’ve just invented trusts!" Etc., etc. One could just as easily make a case for the notion that the major trend of modern Western civilization and law has been one of wresting more and more private rights away from the state or, as I have argued elsewhere, a shift from a status driven society to a contract driven society. Unfortunately, we seem to be moving back to a status obsessed culture where one’s rights are driven by whether one is a tenant or employee or member of a protected minority, etc.

Coase and the Law & Econ crowd have dealt with most of the bordering property issues fairly well, I think. Currently, the state prohibits certain sorts of discrimination while encouraging and actually participating in certain other sorts. Since I believe markets would effectively diminish the concrete harmful effects of private discrimination to the point where it would have a de minimus impact on the overwhelming majority of individuals, I would prefer that approach to one in which, ceteris paribus, the state became ever more increasingly involved in private transactions. Whether, at the end of the day, one does or does not trust government power goes a long way to determining whether one is a left-liberal or a libertarian-conservative, even among us non-absolutists.

I can’t answer your diagnostic test because I don’t know how much unjust discrimination or what sort. At some point, my sense of justice in opposition to discrimination would override my sense that a maximally market driven society maximizes general utility; but if the question is merely would I tolerate any unjust discrimination, however minimal, for a whopping big improvement in general utility, you bet. Rawls was a chicken. If the odds were a million to one against me being on the short end of the stick and the payoff for the million minus one was a huge increase in overall utility, it would be irrational not to play the odds. The professorate in Cambridge is understandably filled with risk adverse types, but they just might not be the apotheoses of rationality they imagine.

So, as much as it may be easy to be sympathetic to antidiscrimination measures under some circumstances, I hardly think one needs to be a property absolutist to question whether in any particular case they are an appropriate solution, let alone the best available solution or even a likely successful solution given humanity’s lamentable propensity to pick on each other for absurd reasons.

I await with bated breath the likely comments from others that I am a clearly not-so-closeted racist, sexist, etc.

Posted by: D.A. Ridgely | Dec 25, 2004 2:00:25 PM

Posted by: oliver

Moral certainty is more elusive for me regarding equal opportunity of employment. It's too bad for me and the world if I'm a sexist, racist ideologue, but I don't think I should have to negotiate face-to-face everyday all day long in the barely profitable shop I own with somebody that I won't warm to without stressful work-delaying arguments and/or years of extra hours devoted to therapy. It seems to me that a large part of the effective operation of an organization is people getting along with one another, and to a certain extent we just get along with who we get along with. To a large extent it's the fault of the schools, our families, society, genetics and historical accident that we aren't each more tolerant and sociable than we are. I won't say a workplace can't teach or that society has no right to impose a curriculum there, but I think the workplace is only very distantly secondarily a Maoist reeducation camp and justifiably I think it's primarily it's about individual, group and societal survival. I'm not sure, but I think society might be cutting off its nose to spite the face if it ceases to permit entrepreneurship by intolerant and hard-to-get-along-with people.

Posted by: oliver | Dec 25, 2004 2:13:53 PM

Posted by: J.M. Harlan

A statute banning race discrimination enacts into law a contested moral notion: that racism is bad. Romer notwithstanding, that isn't a sufficient objection to such a statute: it's perfectly alright to legislate moral notions.

Whether we should do so, however, depends on our confidence in the moral notion, the harm if it is right and we do not legislate it, and the harm if we are wrong but do legislate it. Herzog distinguishes (1) labor markets and public accommodations, (2) other non-state discrimination, and (3) unacted-on racist views.

The harm if "racism is bad" is a correct moral notion but we don't legislate it is greatest in (1): that, I take it, is what Herzog means when he says "everyone needs . . . access" to employment and public accommodations "on equal terms." And it is less with respect to (2) because the degree of racist control of employment and public accommodations (jobs and hotels) is much greater than over intimate associations (churches, dinners, and weddings).

So far so good for Herzog. But then, with respect to (3), he introduces a new idea: "This, for me, is a crucial example of a political struggle the state should have nothing to do with." Maybe he just means the effect of unacted-on racist views alone can't ever be so harmful as to justify state intervention. That would be consistent with his earlier argument.

I think that to oppose an antidiscrimination statute of the sort Herzog argues for, one has to argue uncertainty about the morality of racism. A speech-is-better argument won't work because, if the law fails to include the statute, it isn't being neutral -- it's embodying the racist view.

But one might also read Herzog's statement re: (3) as indicating disagreement with my claim that legislating moral notions is okay. If you don't think that legislating moral notions is okay -- that the debate over racism "is a crucial example of a political struggle the state should have nothing to do with" -- then you also should oppose the statute Herzog defends.

Posted by: J.M. Harlan | Dec 25, 2004 4:45:58 PM

Posted by: Don Herzog

Mr. Ridgely: Look, if someone sneers at you as a racist or sexist, we shall politely ignore them or ask them to pipe down. We are trying to see if the blogosphere permits an ongoing thoughtful discussion. So let's not invite in the name-callers.

Since we have no social experience of the free market regime you'd defend, we have no knockdown evidence on how the market would go. I wouldn't dream of enlisting the experience of the South under Jim Crow legislation as evidence that markets don't work. On matters like this -- you might recall my earlier confession that I'd love to see some jurisdiction experiment with Kemp's enterprise zones -- I am big on federalism and experimentation.

Meanwhile I have known people who will go to the wall defending that absolute conception of property. And I think commenters here have complained that various kinds of legislation violate property rights. All I wanted to do is suggest that maneuvers like that are standing in for unstated lines of argument.

J. M. Harlan: I think "legislating moral notions" is too blunt an instrument to help. We prohibit murder because it is a grievous harm, and that makes it profoundly immoral. We do not prohibit lying to escape an unwanted social invitation, even if we agree the dishonesty is immoral. Morality is neither necessary nor sufficient for state action. Romer doesn't say the state can't legislate on the basis of morality; it says that "bare animus" is an unacceptable basis for legislation. While I can't think of a Supreme Court opinion that clearly makes the point, it seems easy enough to distinguish moral condemnation from bare animus.

Posted by: Don Herzog | Dec 25, 2004 6:38:37 PM

Posted by: Mark

One might add, to Herzog's description of Roemer, that not only it does not address the broad question of legislating morality, it does not close the book on bare animus, either. Roemer is part of the tradition of cases that goes back to Stone's famous footnote 4 that the the equal protection clause of the constitution ought to applied more vigorously when the case involves "discrete and insular minorties."

Posted by: Mark | Dec 25, 2004 7:18:03 PM

Posted by: D.A. Ridgely

Mr. Herzog:

I didn't mean to imply I expected such comments from you, the other authors of the blog or most of the other commenters, and I certainly wasn't inviting such comments. There is, however, an unfortunate tendence among many in the blogosphere to pay too little to what someone says and comment on what they take him to 'really mean.'

Anyway, I agree: by all means let's experiment. Indeed, some folks on my side of the street are attempting to do just that with the Free State Project. (Being a classic free-rider, I'm watching carefully from a distance. Besides, it's cold in New Hampshire in the winter.) Alas, power is rarely yielded voluntarily and the government is already well entrenched, so I'm rather pessimistic about any realistic opportunities for serious experimentation. Still, it's nice to hear anyone who self-identifies as a liberal to put in a kind word about federalism, and I hasten to note I don't mean that snidely at all.

Posted by: D.A. Ridgely | Dec 25, 2004 7:52:07 PM

Posted by: Don Herzog

Federalism took a hammering on the left in the '50s and '60s, when it lapsed into a defense of Southern state-sponsored racism. But surely there are solid reasons for various sorts of lefties to champion it. Participatory democrats will like it for what the Europeans call subsidiarity, keeping power as close to the local unit as possible. Communitarian types (not I, said the little brown bear) will like it for permitting (benign?) local variation. Liberals indebted to Dewey and other pragmatists, like me, will be keen on learning what we can about "facts" and "values" alike by seeing lots of experiments. Just as the feds have permitted some experimentation with AFDC, keeping some federal floor in place, so too they could well do with the regulatory regimes inspired by Title II and Title VII of the Civil Rights Act.

Posted by: Don Herzog | Dec 25, 2004 8:07:24 PM

Posted by: Mona

Dear Don Herzog: Your confusion can be easily cleared up by reading Richard A. Epstein's Forbidden Grounds: The Case Against Employment Discrimination Law. On pp. 83-86 he deals fulsomely with the common carrier doctrine, and starts by observing, as a commenter here has, that the doctrine addressed monopoly situations.

An anecodote from my own professional experience: in the 90s I was in a law partnership in Midtown Manhattan with the founder of the firm, who is 100% gay, by his own description. The other partner was a socially liberal het. The three of us agreed on all issues important to our personal lives which facilitated working together for 70 hours each week.

Now, in NYC the odds were slim to none that anyone applying for a position as our support staff was a member of the Jerry Falwell brigades. But, had such a person applied, we would not have hired them, no matter how qualified. Had we hired them unknowingly, and their disapproval of one or any of us manifested, we would have fired them. (C'mon, we are lawyers, and know how to do that while keeping our @sses covered legally, as does anyone else with reasonably competent counsel.)Do you think that would have been wrong?

Posted by: Mona | Dec 25, 2004 9:36:45 PM

Posted by: Don Herzog

I confess I have read Richard's book. He knows tons of common law, one of the things I like and admire about him, and it has been years since I have worked hard on those sources, but, well, I think he's wrong.

There are good reasons to treat teeny workplaces of your kind differently from larger ones, and of course Title VII doesn't pretend to cover antipathy to members of the Falwell brigades. The dominant paradigm of american labor law remains at-will employment, right?

Posted by: Don Herzog | Dec 25, 2004 9:51:33 PM

Posted by: D.A. Ridgely

Well, insofar as at-will employment remains the paradigm, I don't think we have the left to thank for that. (Not a dig at you, mind you.)

The fact is, we treat employment contracts in terms of the status of the contracting parties. Little or no constraints on the employee or job seeker to quit without notice or not apply in the first place, increasing burdens on employers to the point where those of us who work in what Jefferson thought "a talkative and dubious profession" are required to advise employers on the legal vagaries of job interviews.

Now, I certainly don't want to constrain the liberty of the prospective or current employee, but I would like to know what sort of argument as persuasive as the common carrier example can be mustered to justify the notion that X must hire Y if he only dislikes him for certain specified bad reasons but not for any other bad reasons.

Posted by: D.A. Ridgely | Dec 25, 2004 10:05:50 PM

Posted by: Don Herzog

I'll think about that some more, but (it's late, I'm tired, &c) the instant unthinking answer would be: bad reasons that are idiosyncratic or not all that widely shared don't significantly disadvantage the applicant; she can go elsewhere. Bad reasons that are socially entrenched do disadvantage the applicant.

As to at-will employment and the left, everyone I've ever asked who teaches labor law reports the same experience I have when I give glancing attention to these issues in the classroom. Overwhelmingly students are astonished to learn that it's permissible to say, "I don't like your face, you don't get the job," or, "you're fired! why? 'coz I feel like it." This goes for students on the right, students on the left, students in the center, students with no particular politics at all. They literally don't believe it. And as to what we have the left to thank for, I feel glum on once again encountering the specter of the Master Social Planner who relies on an all-powerful, all-knowing, all-benevolent bureaucracy to engineer Sound Social Outcomes. I am not like this. I don't know anyone like this. Really. And I have no more sneaking affection for that repulsive figure than you do.

Posted by: Don Herzog | Dec 25, 2004 10:18:02 PM

Posted by: J.M. Harlan

It does not seem easy to me to distinguish moral condemnation from bare animus, which is why I think Romer holds that moral justifications cannot support differential treatment. On any distinction, the law in Romer is no more based on bare animus than are antidiscrimination statutes.

One might say that moral condemnation applies to conduct or views, while animus applies to persons. But Romer and the antidiscrimination statutes cannot be distinguished in this way. In Romer the statute clearly was rationally related to moral condemnation of homosexual conduct -- after all, homosexuality is a good proxy for homosexual conduct. So if only animus so limited -- moral condemnation of persons -- were prohibited, Romer would have been decided differently. But moral condemnation of conduct or views, too, is forbidden.

One might say that moral condemnation is weaker than animus. So differential treatment based on "really strong" moral condemnation is unconstitutional. But surely the moral condemnation of racism expressed by antidiscrimination laws is as strong or stronger than the moral condemnation of homosexual conduct expressed by the relatively mild law in Romer.

One might say that moral condemnation is tied to consequences, while "bare" animus is not. But then moral condemnation is an adequate justification because there is more than morality at work: there are also the bad consequences.

Neither of Herzog's examples is on point. Murder can be criminalized because it is not only immoral, but has bad consequences also. And it would be bad to punish lying to escape dinner not because doing so would be legislating morals, but because the harm is so small. (The reason it's bad has to do with the nature of the consequences, not the nature of the putative justification for punishment -- its being morality- as opposed to consequence-oriented.) An on-point example would be a case of something that it would be bad to criminalize because the only reason for criminalizing it is moral condemnation.

In any event, this all stems from the possibly erroneous suggestion I made that Herzog's opposition to laws against unacted-on racist views was different from (what I suggested might be) his degree-of-monopoly distinction between labor markets and public accommodations on one hand and intimate associations on the other. Since the degree-of-monopoly distinction is sufficient, my criticism is minor.

Posted by: J.M. Harlan | Dec 25, 2004 11:54:07 PM

Posted by: Bret

Don Herzog writes: "But surely there are solid reasons for various sorts of lefties to champion it [federalism]."

Don left pragmatism of the list of "solid reasons". Now that the Republicans control the government, federalism is one of the better ways for the left to preserve and extend their ideals in the blue states.

When the Republicans were the minority party, they sure seemed to like the idea of federalism a lot. Now that they're the majority party, they seem to have cooled off on the concept. Democrats didn't seem all that hot on federalism when they were the majority party. Now that they're not, I suspect they'll embrace it.

Fiscal responsibility is similar. The minority party is usually all for fiscal restraint. After all, the money won't be spent on their favorite projects. The majority party usually likes big government. We've seen this switch from the Republicans being the party of fiscal restraint to the Democrats being the party of fiscal restraint as the Republicans gained control of the federal government.

Posted by: Bret | Dec 26, 2004 2:15:44 AM

Posted by: Jim Hu

I'm not a lawyer, but it seems to me that Romer v. Evans (that's what you guys are talking about, right? I had to look it up to recall the coverage of the case) isn't about whether or not one can legislate morals. From my understanding it is a restriction on legislation that selectively deprives a particular group of some right (in this case to win passage of local anti-discrimination ordnances, banned and overturned statewide by Colorado Amendment 2) if that action fails the test to "bears a rational relation to some independent and legitimate legislative end". The Court held that "the Amendment raises the inevitable inference that it is born of animosity toward the class that it affects. Amendment 2 cannot be said to be directed to an identifiable legitimate purpose or discrete objective. It is a status-based classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit."

So the lawyers here can correct me, but it seems that this is not legislating against the animus...it's saying that the Amendment 2 supporters failed to convince the Court that there was a legitimate purpose for the Amendment, and that as far as the Court could see, animus was the only explanation. It seems to me that a number of other reasons would also fail this test, whether or not the motivation is based on animus. Indeed, I would hope that Romer would be decided the same way even if the Amendment 2 people had convinced the court that the Amendment was motivated by "tough love".

However, I believe that Prof. Herzog is asking a different question, and that it is related to Romer only insofar as it's about what would justify interfering with different degrees of people's rights to do what they will with their property, their hiring decisions, and so on. The test he proposes is a good one - "would I stick with markets even if I thought that they'd never eradicate unjust discrimination?" only if one assumes that there is a way to eradicate unjust discrimination by use of the police power of the State to enforce nondescrimination norms - and if one assumes that this would not create other forms of injustice. If you don't buy those assumptions, then the answers obviously become more complex, and as D.A. Ridgely points out above, it depends on what the bargain is. As Ridgely also points out, while there may be some property-rights absolutists out there, there are plenty of people who agree that there are situations where people can't be allowed to just do what they want. Indeed, the real conservatives out there agree with this idea more than those of us who are inclined toward a more libertarian perspective. So you don't need to fight that battle - the battle you need to fight is to convince people that the specific thing you want to achieve with a particular antidiscrimination law is worth the price...and that you have a clue about whether or not the law you propose/defend will actually move the ball forward.

I'm also not even sure that the goal to "guarantee everyone a fair shot at success, the kind of starting point I think is required by equality of opportunity." is widely shared. Most people (including all of the Liberals I know) want their own children to have the best chance for success that they can get even if that involves using opportunities that are not available to all.

Posted by: Jim Hu | Dec 26, 2004 3:40:43 AM

Posted by: oliver

Do "teeny workplaces" cover the handful of senior management who work mostly with each other and in isolation from their 10,000 historically discriminated-against minority workers? Should small work groups in big public or private businesses have to allow "all kinds of people" entry?

Posted by: oliver | Dec 26, 2004 8:35:01 AM

Posted by: D.A. Ridgely

Mr. Herzog wrote: “Romer doesn't say the state can't legislate on the basis of morality; it says that ‘bare animus’ is an unacceptable basis for legislation. While I can't think of a Supreme Court opinion that clearly makes the point, it seems easy enough to distinguish moral condemnation from bare animus.”

Well, maybe.

I trust we are not discussing Romer or any other positive law in our capacities as constitutional or legal scholars but to look to see whether any argument offered in that decision legislative history or elsewhere might stand on its own to shed light on the philosophical issues. The Court may be a smaller governmental body than Congress, but the need to craft opinions acceptable to a majority of the justices still makes it a small-scale sausage factory.

Thus, while Mr. Hu is correct that the lower threshold test for whether legislation meets the Equal Protection Clause of the 14th Amendment is whether it bears some rational relation to a legitimate state interest, the question is what rationale the Court used to decide that it didn’t. The higher “strict scrutiny” test was unavailable to the Court because homosexuals per se had not (yet?) been deemed a suspect class nor was any fundamental right (as defined by the Court) burdened by the Colorado law. It is common for lazy law students reading Equal Protection cases to stop at the point where the Court announces the test it deems appropriate: if rational relation, the state wins; if strict scrutiny, the state loses. Here, though, six justices sought to articulate reasons why the Colorado law could not meet the lower Equal Protection threshold; hence its rejection of the state’s asserted interests and dismissive talk of “bare animus.” I am inclined to agree with Scalia that the majority decision in Romer was “long on emotive utterance and ... short on relevant legal citation.”

In any case, I indulge in this slightly digressive comment only to make explicit what I think has not been stated with sufficient clarity. Mr. Herzog’s “nefarious project of showing the deep continuities between ... left-liberals and our classical-liberal ancestors” shouldn’t be taken as showing only that a case for such continuity can be made in the historical development of positive law. That’s a bit of a mug’s game which any reasonably competent legal analyst could manage, no offense to Mr. Herzog intended. The interesting points, which I take him to be trying to make, are (1) whether there is such continuity in the underlying philosophical presuppositions justifying that positive law as it has developed and especially as left-liberals would urge it to continue to develop (I think there is less than he apparently does) and (2) whether it is developing as it should, irrespective of its intellectual or historical pedigree.

Posted by: D.A. Ridgely | Dec 26, 2004 9:39:31 AM

Posted by: Jeff

I am not commenting on the comments but the post, which I as a conservative think has many merits.

Nor am I going to comment in depth about the history as propounded by Mr. Herzog, in large part because he knows far more about the history of the law than I do. I shall just say that the law pertaining to innkeepers was not general. Obviously if the common law had been as anti-discriminatory as he implies, there would have been no need for the 14th Amendment or the '64 Civil Rights Act.

Let's accept as a premise that a large majority of Americans agree, and properly so, that the state ought not to discriminate among citizens on invidious grounds, but may of course discriminate on non-invidious ones. As Mr. Herzog points out, that will leave plenty of room to disagree about which grounds are invidious and which not, but such disagreements should surely not be bitter ones.

I for one accept that certain types of business should also not be free to discriminate on invidious grounds. Again there is plenty of room to disagree about what types of business and what grounds. Nor is it crystal clear what standards are best for proving the more subtle manifestations of discrimination and what remedies are best. But if we agree on the basic proposition, disputes about such details should not be exteremely divisive.

The real source of dispute is affirmative action (or its newly created progeny, "diversity.") By its terms, affirmative action is state mandated or state supported favoritism for some group defined by a distinction already agreed to be invidious. But one group cannot be discriminated for without some other group being discriminated against. If, for example, the ultimate goal is a society in which no one is favored because of race, what justification is there for immediately favoring some because of race. We perpetuate precisely what we say we want to end.

I simply do not believe that a method simultaneously practical and moral exists to correct past discrimination. A person's life cannot be "fixed," and we cannot morally compensate A, who has been harmed, by harming B, who did no harm. The real solution is to give every child the best education that the child can absorb and that the parents will tolerate. (The latter qualification bothers me, but practicality demands it.) The scandal of American society is not discrimination, but a state educational monopoly that neither understands or desires educating. Had this society over the last four decades dedicated to improving education the energy and money and thought given to affirmative action, it would have been far, far better off. Affirmative action is a never-ending trap.

Posted by: Jeff | Dec 26, 2004 11:10:16 AM

Posted by: Mark

Jeff makes a good point about affirmative action which I, as a liberal, agree with: Affirmative action is not the answer to the diversity problem in education. Affirmative action is like slapping a band-aid on the compound fracture that is disparity in our educational system.

Posted by: Mark | Dec 26, 2004 11:51:45 AM

Posted by: Jeff

Uh oh, we may have a liberal and conservative agreeing here. Such disturbances to the balance of the universe will never do.

Mark and I seem to agree on the importance of education as a means to reduce (perhaps eliminate) the pains and harms of invidious discrimination. We seem to agree as well that the current state of education in this country is shamefully disparate, ranging generally from bad to abysmal.

All is not lost, however. Our agreement may be superficial, and we may disagree on how to eliminate the disparity by giving every parent a reasonable opportunity to get a child an excellent education. Indeed, it does seem he is primarily worried about variance whereas I am worried about the average.

Posted by: Jeff | Dec 26, 2004 3:21:12 PM

Posted by: oliver

"But one group cannot be discriminated for without some other group being discriminated against" is of course true in a sense, but I think it's not a bedrock truth. To accept it as true is to accept some of assumptions that I think are still up for grabs, such as whether we giveth to the state and society or whether the state and society giveth to us. If society doesn't let us into Harvard, because society wanted more Figians there, but instead society let us into Yale, then perhaps we should just be grateful for what we got, seeing as we aren't the crown princess.

Posted by: oliver | Dec 26, 2004 3:42:59 PM

Posted by: frankly0

Affirmative Action, I think, at least in a number of contexts, requires for its justification neither past discrimination nor the promise of a future "cure" of the underlying differential outcomes. That is, the problem might have come about in a non-discriminatory way, and may never be correctable, and still Affirmative Action would be very important and justifiable -- indeed, I think such an approach gets at the TRUE justification for Affirmative Action much better than do those which bring in past injustices or promises of cures.

Here's an example, with a few helpful suppositions. It might be called Backward State Affirmative Action. Let's suppose that we have among us a number of Backward States, largely rural and heavily agrarian, characterized by populations of relatively low skilled poorly educated people. Over the generations, economic opportunities for skilled and educated workers go into great decline, forcing the brighter, more industrious children of the state to seek employment (and more interesting lives) elsewhere.

Now here comes a supposition that I don't believe in, but many people, particularly on the right, do: intelligence (and perhaps industriousness) is so heavily genetic that the people in the Backward states become more and more a permanent, relatively unproductive population.

The question is, should institutions implement something like Backward State Affirmative Action, even though there was no real past discrimination, nor hope for future remedy?

I think that the answer here is a clear yes, and one sees it in a number of institutions, particulary educational institutions, under the guise of seeking a "nationally representative" class. The virtue of this Affirmative Action is diversity, and the feeling of empowerment granted to the Backward states, because they too understand that they have access to the institutions of power. The importance of those virtues is independent of past injustices or future cures. Now whether or not Backward state Affirmative Action should be implemented in ALL contexts in which Affirmative Action of other kinds is now applied is an open question. And perhaps the additional contexts are justified in virtue of the past and the future.

But recognizing that the core idea of Affirmative Action is justifiable without blame or promises should remove some of the standard recriminations back and forth typical in discussions of it.

Posted by: frankly0 | Dec 26, 2004 4:23:28 PM

Posted by: Jim Hu

D.A. Ridgely - having no formal law training, I guess I'll take it as a compliment that I could match the level of even a lazy law student with 5 minutes of Googling and reading FindLaw in the dead of night. ;^)

The point I was trying to make was that even if you reject Scalia's dissent and accept the majority reasoning, Romer doesn't say you can't hold the animus. I think I might agree with Ridgely and Scalia on the overall decision - whether or not I would have voted for Amendment 2, if sexual orientation is not a federally protected class (whether it should be was not for the Court to decide here, right?), then Colorado gets to make its own rules whether or not I think they're wrongheaded. But I apologize for continuing the Romer digression.

Jeff makes an important point about where the Affirmative Action debate currently lies. At it's simplest formulation, it's that two wrongs don't make a right. It seems to me that modern Conservatives are mostly arguing from this position, not from the race purity arguments of the old Dixiecrats, but much of the Liberal rhetoric seems to assume that the current anti-Affirmative Action stance is a charade to disguise the latter. In addition, Conservatives are sometimes overly suspicious that all Affirmative Action measures take the form of harming B to benefit A.

Here are three things my university does that are designed to promote diversity. Some of these are common at most universities. Do these pass the "no harm to B" test?

1) There are conferences designed for undergraduates underrepresented minorities who are interested in science. These are arguably discriminatory against nonminorities, insofar as they provide an activity to one group but not another, but it's an extracurricular activity. My university and many others send people to advertise our graduate program at these conferences, and we encourage attendees to apply. Those who do apply still have to meet our normal standards. If similar conferences existed that were not based on minority status, we'd go there too, but we haven't found such conferences.

2) When we have an open faculty position, we place ads in the usual professional journals, but we also place ads in journals that target educators in minority groups. I don't like this because it is completely ineffective in my experience, but should I also object for ethical reasons?

3) As long as there is an achievement gap in things like standardized tests, taking students with lower test scores will have the effect of increasing diversity. In fact, here in Texas, we are barred by State law from using test scores as the sole determinant for rejecting an applicant. The correlation between tests and success is positive but not perfect. Thus, we can argue for using a cutoff instead of a ranking. Is the following admissions policy harmful to B? If you're in the top 10% of your high school class and you meet an arbitrary minimum SAT/ACT, you go into a lottery for admissions (In fact, only a portion of the admissions work this way, but is it fair within this subset?).

Posted by: Jim Hu | Dec 26, 2004 4:35:13 PM

Posted by: Don Herzog

I don't want to turn this into a discussion of legal doctrine, but I'll just say briefly that to see a respectable legal lineage for the reasoning in Romer, check Hunter v Erickson.

And to distinguish bare animus from moral disapproval, contrast "I hate you" or "you are loathsome and disgusting" with "what you do is wrong."

Posted by: Don Herzog | Dec 26, 2004 5:22:34 PM

Posted by: Jeff


If Harvard lets A in because of the color of A's skin and if Harvard does not let in everyone who wants in, then Harvard has done harm to someone, which, even if rectified by Yale, does not in my view justify Harvard's act.

I wholeheartedly agree that no one has a right to go to Harvard, and perhaps the harm of being excluded from a particular university is simply too trivial to bother with, in which case the argument requires a different example, say admission to a hospital.

The argument is whether race is a morally acceptable criterion for the state or institutions materially supported by the state to decide anything. Anti-discrimination says no; affirmative action (or racial diversity) says yes.


My response to your hypothetical depends on whether you think it is ok to discriminate against a particular person from Backward State because on average people from Backward are less intelligent and industrious ex hypothesi. If the answer is no, then I do not understand the relevance of your argument. If I have misconstrued your argument, I apologize.

@Jim Hu

First, I am willing to concede a fair degree of difference between private activity and state supported activity.

Second, however, I wonder whether some of the examples that you mention need be based on race at all. For example, given that there is gross disparity in the quality of US schools, why not provide extra support for any student that had been condemned to such a school. Why base it on race if the issue is differential schooling?

Posted by: Jeff | Dec 26, 2004 5:34:55 PM

Posted by: D.A. Ridgely

Of course, depending on one's meta-ethics, the only difference between "I hate you" and "What you do is wrong" may be that the speaker is booing a person in the first case and an action in the second.

Hunter v. Erikson was a “strict scrutiny” case. I’m trying not to argue legal doctrine but only to say that whatever standard the Court may apply, it makes its own rules as it goes along and, in my opinion, all too often decides the outcome first and adjusts the reasoning as necessary. You may disagree with my cynicism, but I tend to side with the Crits on such matters. As such, I think case law, per se, is a poor model for ethical theory, though it saddens me to say I suspect many ethicists operate similarly. Judges do occasionally make interesting arguments or distinctions and when they do they deserve consideration.

Posted by: D.A. Ridgely | Dec 26, 2004 6:06:32 PM

Posted by: Jim Hu


Extra support would be OK with me...but if I'm helping to set policies for my university (I'm not, at least not university-wide), and I don't have the power to change the larger educational system, how do I handle these situations?

I think most people here agree that an admission lottery among those who can get past an arbitrary bar is reasonably race-blind. There is still concern about its fairness to students from more competitive high schools. In the other cases, I'm not sure what I think should be done in principle. In practice, my view is that these are the rules I live under, so I'll give a good faith effort to do what the system wants. However, I do want to listen to the arguments for and against the practices in order to decide if that is the right course of action.

I could take a principled stand against targeted recruiting based on the idea that this wouldn't pass my ethical tests if I was asked to recruit at events that excluded blacks or hispanics, even if the purpose was only to encourage applications and there was no set-aside given to whites for admissions. But are the situations symmetrical? I think not - but I'm not sure. Here's one reason why there may be a defensible asymmetry: if my university has an undeserved reputation of being a hostile environment for underrepresented groups, isn't there a duty to try to dispel that reputation? If so, I can't do that without reaching out to the group in question. Whether or not there is such reputational problem to dispel for other groups is not clear.

Why not reach out similarly to other underrepresented groups that are not based on race? Well, to some extent we do. I've spent time schmoozing a group organized for parents of exceptionally gifted children, who are looking for ways universities can provide special accomodation for 12-year olds who are math and science whizzes but are socialized at the level of 12-year olds.

But I admit that I'm not completely happy with my answer here. Even for a race-blind lottery system, how do we measure success? In my state school, it's related to whether or not our student body "looks like Texas"...and this is measured through the lens of race, sex, and ethnicity. How do we even measure what we're doing? If a race-blind admissions policy results in a racially skewed student body (after controlling for other variables) is that OK? Do we not even want to know?

Posted by: Jim Hu | Dec 26, 2004 6:21:10 PM

Posted by: oliver

Jeff said: "The argument is whether race is a morally acceptable criterion for the state or institutions materially supported by the state to decide anything. Anti-discrimination says no; affirmative action (or racial diversity) says yes."
I think the argument in part is whether we think ends ever justify means (although up til now I thought everyone agreed about that). I also may want to argue about how one decides which constitutional priniciple wins when two have conflicting implications.

Posted by: oliver | Dec 26, 2004 6:47:12 PM

Posted by: Jeff

@Jim Hu

I hope it is not too annoying if I revise my argument as we go along.

It might be helpful to go back to the concept of harm. Let's not assume that all help to A necessarily harms some other. Not everything is a zero-sum game. I concede that.

Given that none of us ever get to determine the rules completely, we all have to do the best we can, and this sometimes involves compromises that are difficult to justify abstractly. I concede that as well.

So I might be willing to concede that state-supported activities that help A and others in a class defined by an otherwise objectionable criterion may be morally acceptable if such activities do no material harm to any outside the class. Your recruitment example may be a reasonable one. Still I view such examples as suspect: surely the desired end is to eliminate race as a criterion altogether, and preserving it in certain cases delays rather than hastens that end.


I simply do not privilege the law as a source of moral justification. The Fugitive Slave Law was perfectly sound legally according to the Supreme Court. If the law, including the Constitution, gives the wrong answer morally, then the law ought to be changed. (I admit this is a very convenient position for someone who knows no law to hold, but I am bone lazy.)

Posted by: Jeff | Dec 26, 2004 7:23:03 PM

Posted by: Jim Hu

"I hope it is not too annoying if I revise my argument as we go along."

I hope I didn't give any impression of being annoyed! For myself, I hope I made it clear that I share your inclination to suspect my own examples...it's part of why I view these questions as nontrivial at many levels. I'd hate to see a discussion where revision of arguments was not welcomed.

Posted by: Jim Hu | Dec 26, 2004 9:09:05 PM

Posted by: frankly0


If my Backward State Affirmative Action example embodies discrimination against anyone, it would be against those who are NOT from Backward States. Such Affirmative Action would favor those from Backward States. This aspect of my example is, in fact, mostly already present at various first tier colleges, who describe their preferences as being for a "nationally representative" student body. There is, in fact, a great deal of discrimination against applicants from, say, the metropolitan area of New York. Nonetheless, there is little complaint, for reasons best known to themselves, from people on the right regarding this form of discrimination against urban dwellers and in favor of students from, say, North Dakota and Oklahoma.

Now the point of my example, again, is that it represents a legitimate form of Affirmative Action, even though there is no relevant history of unjust discrimination against Backward State students, nor any real prospect of remedying the situation by means of the Affirmative Action. (I threw in the possible "explanation" that the situtation was especially beyond remedy because the "gene pool" was being systematically lowered by the escape of all the smart kids, though this likely wasn't necessary for the example. It would appeal, though, to the Bell Curve crowd who have such problems with Affirmative Action for other groups).

Posted by: frankly0 | Dec 26, 2004 10:53:39 PM

Posted by: frankly0

While some libertarians may escape the absurdity of espousing "absolute" property rights, it does seem to me that they can scarcely call themselves libertarians without rejecting public education, which, from any reasonable or political point of view, renders them toast enough.

I'd like to see some of our self professed "libertarians" either defend describing themselves as libertarians if they DO believe people's property should be appropriated for the purposes of public education, or defend dismantling all public education.

Seems to me that that is the exact location of the place between a rock and a hard place for "libertarians".

Posted by: frankly0 | Dec 27, 2004 3:14:51 AM

Posted by: Jeff


We are, I fear, talking past each other. I shall try to be clearer.

My position is that, first, we must determine what distinctions are morally valid for what purposes. I would find no objection, for example, to discriminating on the basis of race as part of a medical study on sickle cell anemia.

Your hypothetical revolved around discriminating on the basis of a person's state of residence (or perhaps of birth.) My dilemma here is that I can think of a number of cases where my initial reaction is to accept such discrimination as valid. For example, a university heavily supported by funds raised by taxes on the residents of a state might charge lower tuition for students from that state without offending my moral sensibilities. But differential tuition based on race would offend me.

What I was trying to do with my question was to find out whether you believed that differentiating in the case of university admissions, when the university is not supported by state funds, on the basis of state of origin was morally acceptable. If rejecting people because they come from Oklahoma is not morally proper, rejecting people because they come from New York seems to me just as morally improper even though it can be characterized as merely admitting people from Oklahoma.

I am really lost when you make the argument that no one objects to the practice so it must be OK. (I had thought we were discussing a hypothetical. I did not know that universities actually classified certain states as backward and admitted a few yokels from those red states out of noblesse oblige.) Hume pointed out centuries ago that we cannot deduce "ought" from "is." Many on the right already look at the university as a sewer of corruption and do object to that corruption. Whether it is necessary to add this relatively minor lapse to the indictment is not for me to say.

Posted by: Jeff | Dec 27, 2004 8:34:20 AM

Posted by: D.A. Ridgely

It seems to me there is ample room between that particular rock and that particular hard place.

If there is one thing that can be said consistently about libertarians it is that they would be foolish to try to speak for each other. They are at least as contentious among themselves as are liberals or conservatives among themselves. Thus, I speak only for myself.

I think a well educated public is a good thing. I also think a well fed, well clothed, well housed and healthy public is a good thing. I don’t think we need the state to feed or clothe or shelter us, nor to provide our health care or education. Indeed, I think there is abundant evidence that, insofar as the state is providing education for the middle class it isn’t doing as good a job as the middle class would do without it, and insofar as it is providing education for the poor it is doing a gawd-awful job.

I think the Department of Education is a fairly good example of the problem of ‘captive regulators,’ in thrall to teachers unions which I fully expect to put their members’ interests above those of students. I have not seen evidence that federal involvement in education has led to an improvement in education. So, at the very least, I would like to see an immediate return of greater autonomy to the states and localities to fashion and fund their schools as they think best; that is, a return to federalism. Moreover, I’d like to see some states and localities get out of the government school business as much as possible, set up vouchers and such and see how that works. For all I know, it might be a disaster, but inner city schools are disasters right now and I do not believe that the overwhelming majority of parents will not see to it that their children get a good education. Witness the home schooling trend as at least a bit of evidence to that effect. Stop spending the huge sums we currently spend on the governmental infrastructure of education and we free up a great deal of money for, well, for education.

Now, having said that, I’m well aware of the track record of many states both regarding their overall public schools and racial segregation. I’m not oblivious to those problems. But neither do I think American society is culturally in the same place it was in the 1950s and before. In any case, as many have noted, we already have significant de facto segregation as a result of what some term suburban sprawl. These are points which need to be addressed further, but perhaps not in this thread.

Furthermore, as I quipped earlier, I know few if any libertarians of any sort who don’t recognize that the status and welfare of children present an especially difficult problem for libertarianism. I don’t think children are their parents property or that the state should not intervene if they are abused or seriously neglected. Also, if there are any true victims of poverty in this society, they are the children raised in poverty.

Which gets me to the theme of this thread: equality of opportunity or, in lieu thereof, some minimum floor. As I responded in Round One, I am dubious about equality of opportunity but in favor of a minimum floor. Where I differ significantly with the lefties here is how close to ground level that floor should be and the methods by which that floor should be maintained. If that disqualifies me as a libertarian by your lights, so be it.

Political views that would once have rendered the proponent “toast” often go on to be commonly held, conventional wisdom. That doesn’t bother me at all. I am an incrementalist, not a revolutionary. As much fun as it might be in my libertarian fantasies to dismantle great swaths of the state overnight, I’m only a fanatic, not an idiot. The welfare state grew in this nation incrementally and should be abandoned in the same manner.

Posted by: D.A. Ridgely | Dec 27, 2004 9:23:54 AM

Posted by: frankly0

So D.A.Ridgely, long story short, you DO believe that the government should NOT provide education, however we bring about that state of affairs. In your ideal world, education for the indigent, and the working poor, would be left at the mercy of the altruistic sentiments of those better off (the same altruists, presumably, who wanted to free themselves of the yoke of paying too much in taxes for schools in the first place).

You also say that libertarians recognize that children present a special problem for libertarians. Why might that be, I wonder? Perhaps because libertarianism is riddled with anomalies regarding how children would be differentially treated, and something compassionate even in a libertarian balks at the injustice? If libertarians have a problem with children, isn't it very likely because there's a problem with libertarian ideology as such?

Libertarians, in my view, are just the flip side of the Communists. They are people driven so much by ideology that they do not blanch at the great injustices their ideology would impose, but, at most, seek rhetorical tricks to try to explain away or wish away those injustices.

Posted by: frankly0 | Dec 27, 2004 10:09:14 AM

Posted by: frankly0


To begin with, it isn't as though universities ever use the term "backward" to describe, say, Oklahoma, and admit students from Oklahoma under that description. But, in fact, that IS what the practice of seeking a "nationally representative" student body does amount to. So that is a real, not theoretical, possibility.

As for the issue of government funding of universities engaging in such Affirmative Action, I'm sure that every last first tier university, in one fashion or another, gets ample dollops of state and federal funding in any number of ways, including grants and loans of many types. So it is a real, not theoretical, possibility that "state funding" at least tolerates such Affirmative Action.

And, finally, your being offended by the use of race in Affirmative Action, but tolerant of the use of state of residence, is just totally unmotivated as best I can make out -- it is even perverse. It's perverse NOT to use race, when it is race precisely that is the very ground of previous and ongoing discrimination, and race precisely that makes students and their families feel disenfranchised, and motivates them to seek representation in the institutions of power. Why is it better to get at a problem by not owning up to its true basis? Why is hemming and hawing and nodding and winking about what you're really trying to remedy the only correct way to solve the underlying problem?

Posted by: frankly0 | Dec 27, 2004 10:45:42 AM

Posted by: D.A. Ridgely


Please forgive me for declining your implied offer to be a straw horse for your objections. If you believe in popular sovereignty then you already believe that, to some extent, the underprivileged, however defined, are at the mercy of the altruism of the better off anyway. Oddly enough, I don’t find it a sign of weakness that one might acknowledge that a preferred solution, given its alternatives, is nonetheless occasionally problematic. On the contrary, I think it suggests the sort of healthy pragmatism and absence of intellectual hubris which is so often lacking in ideologues of all persuasions.

I believe I stated fairly clearly that I do not believe as a general rule that the government should be in the business of providing education any more than it should be in the business of providing food or shelter or health care. Whether or under what circumstances it might be called upon to be a provider of any of those things as a last resort goes to that ‘minimum floor’ question, and even though I think the evidence strongly suggests that the government is a poor provider of any of those things under the best of circumstances, I am open to compromise in such matters. If I used rhetorical tricks, I should be called on them, but I may be too blinded by my ideology to see how I so. Beyond that, to paraphrase Dr. Johnson, having given you an explanation, it is not my job to give you an understanding.

Posted by: D.A. Ridgely | Dec 27, 2004 11:28:20 AM

Posted by: frankly0

DA Ridgely,

It might at least be good of you to be candid about what the "minimum floor" you might support would be, rather than talking as though it presents no real problem for your view. How does this concept of a minimum floor square with the principles of libertarianism, which so clearly hang on the primacy of private property, and on the government's illegitimate intrusion into that domain by demanding that taxes be paid for purposes such as education, public health, etc.? Not a peep from you on this point.

Do I regard even your totally unmotivated concept of a "minimum floor" to be a rhetorical trick? Until you bother to explain yourself, absolutely. As best I can make out, it serves no other purpose than to stop you from having to go where your purported principles would otherwise lead you. If there's a big problem with dismantling entirely public education, you just invoke "minimum floor" -- as if that's an answer instead of a convenient evasion.

Is there, for example, any reason in principle to think that the minimum floor is just set differently for you and for so-called liberals? You say NOTHING to make out that case. By invoking this concept, your overall view is completely underdetermined; it could be fleshed out a thousand ways. So please don't pretend that you have "explained" yourself adequately.

Posted by: frankly0 | Dec 27, 2004 12:36:25 PM

Posted by: D.A. Ridgely


This will probably be my last reply to you on this subject because I sense we are generating more heat than light. You may interpret that as you wish. Having already stated that most libertarians with whom I am acquainted acknowledge that limited government is a necessary evil and that we must, as it were, coerce one another to provide for its support to that extent, I find your continued argument that the reductio ad absurdum of libertarianism is absurd to be, at best, irrelevant to what I have, in fact, argued. I’m not ideologically consistent enough for you? Oh dear.

I simply don’t know how to respond to criticism of positions I haven’t taken, nor do I see any reason to attempt to do so. The phrase ‘minimum floor’ was not mine. It was Mr. Herzog’s, and I don’t believe he defined it either. I took the purpose of the thread to seek common ground and facilitate better understanding. It seems to me you are confusing a journey with a destination. It seems to me also that you have an overly broad notion of rhetorical tricks.

Since I have argued here and elsewhere that I consider government both potentially and actually oppressive and, worse yet, often woefully ineffective, it is simply disingenuous for you to suggest I’ve given no reason in principle to distinguish my view vis a vis many “so-called liberals.”

Posted by: D.A. Ridgely | Dec 27, 2004 1:20:23 PM

Posted by: frankly0

DA Ridgely,

You say,

it is simply disingenuous for you to suggest I’ve given no reason in principle to distinguish my view vis a vis many “so-called liberals.”

Yet what you have NOT given is precisely a reason IN PRINCIPLE to distinguish your set of self-described "Libertarian" views from those of today's liberals. A "minimum floor" is likewise a description that a liberal of today might embrace for his own view of where and how government should intrude on private property (by taking it). You're just disagreeing about where to set the threshhold. Why describe this position, then, as "libertarianism"? On a principled basis, how do you differ from liberals, when liberals too certainly would seem to embrace the same principles regarding private property that you do?

And I'm not really trying to reduce you to absurdity, necessarily. My broader argument is to put you on the horns of genuine dilemma: EITHER you do have a principled view of libertarianism (which will in fact very likely reduce you to some absurdities) OR your view is NOT principled, in which case you have a very difficult time differentiating yourself from a liberal: you're just haggling over the price, so to speak.

I now see you as haggling over the price.

Posted by: frankly0 | Dec 27, 2004 2:18:54 PM

Posted by: rtr

In Defense of Absolutism (working draft)

Don: “if you held yourself out to serve the general public in transporting goods, people, or messages, you couldn't simply turn prospective customers away and say, "it's my property, I can do as I like." Those principles were quickly extended to inns, taverns, and the like: places offering "bed, board, and hearth" to travellers similarly couldn't turn prospective customers away. There were exceptions: you didn't have to take someone diseased and contagious, say, into a coach or an inn. But the general rule was, no discrimination against paying customers.”

To the extent an absolutist version of property is not respected is the extent to which theft, rape, or murder is held to be justifiable by some individuals (whether or not such aggregations claim the title State or Government). The left also often fails to note that Person is the most important subset of Property. It is an absolutist conception of Property which supersedes Contract, thus allowing Divorce, non-slavery, non-serfdom, etc. on absolutist property grounds.

Thus, I deem silly alleged potential violations of Person/Property such as eighteen-year-olds contracting their future earnings for a Playstation 2. Either trade is wholly simultaneous or contracted agreements can be cancelled with the return of exchanged property or its current market value substitute. And besides free competition is the most likely way in which the best deal is the normal deal. It’s probably likely that intellectual progress on the relation of divorce to contract has suffered from basic distraction of paying attention to racist Supreme Court justices or what a new Super Duper Supreme Court of one would say.

Take a prostitute who is “serving the general public”. Say this prostitute is racist and homophobic. Is there any coercive State anti-discrimination law which would not be RAPE? ABSOLUTELY not. Yet some (most) people have no compunction about using coercive force in a similar non-voluntary manner. Individual opinions about the moral standing of prostitutes, homosexuals, businessmen, racists, priests, etc. are typically invoked to coercively change something about voluntary exchange and being that another disagrees with. It is entirely consistent on non-absolutist grounds that a majority may support forceful violent coercion (as opposed to benign discrimination) against racists and also against homosexual activity. Both the left and the right are whinging to the choir. The grounds for anti-discrimination laws are subjectively arbitrary.

Too many are far too shortsighted to distinguish between subjectively favored and subjectively disfavored when it comes to arbitrary State intervention. One is being absolutely inconsistent to subjectively argue and think just, righteous, natural, or even likely that anti-discrimination laws bring about a state of tolerance. There is no intellectual vigor nor moral persuasion to argue against a case of anti-sodomy laws and anti-discrimination on the basis of race. This explains the muddled present situation of laws and policy in the U.S.

Take one of the most egregious violations of absolutist property rights involving Person; the Draft. If I was a leftist legal scholar mentally arguing before a jury searching for justification for State intervention [on any basis whatsoever of which anti-discrimination laws is one such category] I would point to the Draft; the State has the right to order other human beings to kill and be killed for any reason whatsoever. If the State can order one to kill or be killed for any reason whatsoever, what objection could one find outside the realm of life and death? I’m of the opinion if one is personally for democracy in the Middle East one should pack their Hemingway and enlist in the Iraqi resistance army. I’m also of the opinion leftists don’t like to look in the Totalitarian mirror. If there is a draft perhaps a strong right wing extremist majority would find it beneficial to begin with Affirmative Military Service Action for the historically deprived academic community without discrimination along the lines of race, sex, or age as individuals receiving State money for the general purpose of education is as arbitrary a category as race, sex, or age. The leftist academics would then be exposed for their non-relishment of State coercion but free to test their weapons of mass pacification.

Speaking of the draft, in fact I was astonished to find bills in both the House and Senate of this past Congress calling for a mandatory draft written by far left-wing elected representatives which was being circulating in e-mail form to the under-25 student community as a scare tactic to not vote for Bush lol.

The point is to whatever extent the State can discriminate against individuals with “anti-discrimination” laws is the extent to which it can discriminate with “pro-discrimination” laws. The legal, philosophical, and ethical basis is the same.

Upon what grounds do leftists grant exemptions for “churches and weddings”? It would be silly to force the Pope to have representatives of Islam and Judaism, just to start.

Discrimination on the basis of commonly held “egregious” grounds does not work in the long-run because it is economically inefficient. Racists cannot compete against non-racists. Homophobes cannot compete against non-homophobes. Everybody is as subjectively well off as they can be through trade. All parties are by definition better off. When non-trade is enforced one party is by definition worse off. The worse off is always in the general form of either theft, rape, or murder, all violations of an absolutist conception of property. Are the new generation of Trial Lawyers going to learn pragmatic non-absolutist arguments along the lines that “she was only raped a little”?

Claims of justified equality of starting points are as egregiously established as similar claims of forced dis-equality of starting points on the same bases. All that Don has done is provided rationalizations for extreme right-wing abuse of the left and vice versa, or abuse by whatever factions may evolve over time. It is only a matter of time until a Hayekian “worst rises to the top” in such an environment.

Person and Property can not so easily be delineated along the lines which the left claims in conceptions of “general public business”. Thus the lines between theft and rape and kidnapping are blurred yet subjectively arbitrary absolutist government edict does not have such sensitivity.

Don: “And then we have the usual fun dilemmas: should I be permitted to buy a donut ring of property surrounding yours and then refuse to allow you to leave your lot, on the grounds that it would be trespass?”

It is only by arbitrary custom that I cannot serve notice to my neighbors to cease the continual breathing of “my air” let alone the pollution of a “publicly regarded sphere” through their exhalation of carbon dioxide. How about a leftist study showing a comparison between automobile emissions and natural human emissions? A person buying a donut ring of property with the mere and only express purpose to trap another person would be regarded as anti-social action by others and very possibly crippling himself to the benefits of wealth increasing free trade from others. It is the fact that the increased productivity of the division of labor and wealth increasing trade makes us social beings and provides the basis for roads and other areas and surfaces with which facilitate trade. It’s in the interests of beach front resort spas that persons be able to voluntarily trade for the rental of such beach front spas and likewise for everyone else along the route and at a plethora of points in between.

Don: “Absolutism about property has always yielded in the face of pollution. In Anarchy, State, and Utopia, Nozick has a brief discussion oddly set off in italics. A subordinate clause -- "Since it would exclude too much to forbid all polluting activities" -- gives away the game.”

It is that absolutism about property has yielded that pollution exists to the extent it does. If it had not yielded we very well might have technological balloons over smoke stacks collecting economically valuable discharge with a zero tolerance within reason policy toward pollution. I don’t think it “gives away the game” that the air cannot be privately owned property in the manner that Person or Land can. There are limits indeed. But much of the action that the left and the right deem to be subject to State coercion can easily be regarded to fall well within the limits where hard philosophical and legal conceptions emerge regarding “public spheres”.

Posted by: rtr | Dec 27, 2004 3:57:11 PM

Posted by: Glen Raphael


The Alliance for the Separation of School and State can be found here:


I advocate the separation of school and state for much the same reasons as I advocate the separation of church and state. Consequentialist libertarians such as myself want the state to get out of schooling because they think the poor would for various reasons be better off than they are currently without being forced to attend government-owned, government-run schools.

Yes, some truly indigent might need some help to afford schooling, but that is no argument for having the government own the entire industry, any more than "some very poor people can't afford food" is an argument for having government own and run all the supermarkets. And yes, that small amount of help that was needed would ideally be provided privately. And there's no reason education inherently has to be so expensive that "the working poor" can't afford it.

The comments section of this blog, in response to a post that didn't even mention schools, probably isn't the best place to have that discussion, though.

Posted by: Glen Raphael | Dec 27, 2004 7:31:02 PM

Posted by: Micha Ghertner


What's wrong with haggling over price? You're right: D.A. Ridgely is not a "principled" libertarian in the strictist sense, since he is not willing to follow the libertarian non-aggression axiom to its logical conclusions. So what? Very few libertarians are so willing, even if they don't realize it yet.

One need not be a "principled" libertarian to be a good libertarian. Indeed, I would argue that those who stick to principles though the heavens may fall are worse libertarians if only because they make the rest of us look like idiots. People like Milton Friedman and F.A. Hayek certainly believed in and advocated a "minimum floor."

One last comment:

In your ideal world, education for the indigent, and the working poor, would be left at the mercy of the altruistic sentiments of those better off (the same altruists, presumably, who wanted to free themselves of the yoke of paying too much in taxes for schools in the first place).

Of course, this cuts both ways. In your ideal world, charity would be provided by the government because private individuals are thought to be too greedy to help their fellow man. Who is supposed to vote for this altruistic government? Why, these same greedy individuals, of course!

See the dilemma?

Posted by: Micha Ghertner | Dec 28, 2004 8:31:45 AM

Posted by: AlanC9

That's not really a dilemma. I can see someone voting for a higher amount of government-mandated "charity" than he would personally contribute in the absence of the government mandate, on the grounds of "fairness" or some such. Many people have an instinctive aversion to free riders.

Posted by: AlanC9 | Dec 28, 2004 2:59:18 PM

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