Category: Affirmative Action – Immigration – Race

Re-Fighting the Civil War

In “Still More Trouble for the Lincoln Cartel,” Thomas J. DiLorenzo reviews Born Fighting: How the Scots-Irish Shaped America, by former U.S. Navy Secretary James Webb; and The Fate of Their Country: Politicians, Slavery Extension, and the Coming of the Civil War, by University of Virginia historian Michael F. Holt. DiLorenzo’s review amounts to another salvo at what he calls the “Lincoln Cartel”:

In my [DiLorenzo’s] LRC [LewRockwell.com] article, “More Trouble for the Lincoln Cartel,” I noted how such court historians as James McPherson, and court semanticists like Harry Jaffa, have fabricated an “Official History” of the War to Prevent Southern Independence that is often sharply at odds with historical reality. These self-appointed gatekeepers of America’s Official State History do all they can to censor competing views within academe, but their influence is rapidly waning because of the fact that competing views are now widely published on the Internet, and by commercial and “think tank” publishers.

DiLorenzo prefers socio-psychological explanations and conspiracy theories to a straightforward accounting for the Civil War. Thus, writing about Webb’s book, he says:

So why did the Confederate soldier fight? Because “he was provoked, intimidated, and ultimately invaded” and “his leaders convinced him that this was a war of independence in the same sense as the Revolutionary War” (p. 225). The “tendency to resist outside regression” was “bred deeply into every heart” of the Scots-Irish, and had been for centuries. That’s why they had to fight.

Bravo. But why was the Confederate soldier “provoked, intimidated, and ultimately invaded”? Aha, here it is in DiLorenzo’s comments about Holt’s book:

The North was driven by an agenda that would legally plunder the South. They were pure plunder seekers. The South, on the other hand, was comprised of plunder avoiders. They fought for years in the political trenches to avoid being the victims of the northern political plunderers, whose population was more than double that of the South, implying an inevitable Northern domination in the halls of Congress. As Professor Holt demonstrates, slavery extension was one big smokescreen or “chimera” that clouded the real issues at stake in the period leading up to the war.

I sent my son a link to DiLorenzo’s review. We then had the following exchange:

Son: I don’t think either of us are die hard Confederates, are we? I guess my take on it is: interesting historical revisionism, but I’m not going to try to re-fight the Civil War.

Me: I might prefer more power in the hands of the States, but not at the cost of slavery. It strikes me as one more attempt to throw the Civil War into a new light. Kind of clever, but not compelling. Such theories fail Occam’s test, which tells me that the proximate cause of the war was slavery, and Lincoln was determined to keep the Union whole. Yes, there were a lot of subplots, but that’s the main plot.

Son [referring to the early election returns]: Maybe we don’t need to refight the Civil War, but can we let Canada annex the Northeast?

I’d go along with that, but my Canadian friends who are Red Ensign bloggers probably don’t want to bring more socialist-leaning provinces into the Dominion.

Dancing around Racial Differences

Climatology isn’t the only politically correct science. Nicholas Wade of The New York Times reports about race and genetics in “Articles Highlight Different Views on Genetic Basis of Race“:

…In articles in the current issue of the journal Nature Genetics, scientists at Howard, a center of African-American scholarship, generally favor the view that there is no biological or genetic basis for race. “Observed patterns of geographical differences in genetic information do not correspond to our notion of social identities, including ‘race’ and ‘ethnicity,’ ” writes Dr. Charles N. Rotimi, acting director of the university’s genome center.

But several other geneticists writing in the same issue of the journal say the human family tree is divided into branches that correspond to the ancestral populations of each major continent, and that these branches coincide with the popular notion of race. “The emerging picture is that populations do, generally, cluster by broad geographic regions that correspond with common racial classification (Africa, Europe, Asia, Oceania, Americas),” say Dr. Sarah A. Tishkoff of the University of Maryland and Dr. Kenneth K. Kidd of Yale….

Here we have so-called scientists at Howard University trying to deny the obvious and their “peers” at other universities merely confirming it. You’d think scientists would want to do something worthwhile with their time.

Wade continues:

Two years ago Dr. Risch, a population geneticist, plunged into the long-taboo subject of race and said that these geographic patterns correlated with the popular conception of continental-based races – principally Africans, East Asians, American Indians and Caucasians (a group that includes Europeans, Middle Easterners, and people of the Indian subcontinent).

These categories were useful in understanding the genetic roots of disease, many of which follow the same geographic pattern, Dr. Risch said. His article was provoked by editorials in medical journals suggesting there was no biological basis for race.

The articles in today’s issue of Nature Genetics represent a second round of the debate. The Howard scientists agree that there is a geographic pattern in human genetic variation but favor the approach of going directly to the underlying genetic causes of disease without taking into account any possible correlation with race….

Why is race off limits as a scientific topic? What are the “scientists” at Howard afraid of learning about their race? Where’s the shame in truth?

I will say once again that I fully understand Bush’s refusal to kow-tow to scientists (see here and here). Most Americans, unfortunately, have subscribed to a false view of science as coldly precise and unerringly accurate in its power to prescribe “wise” policies. I don’t subscribe to that view, as you’ll find by reading this and following the links.

Liberal Condescension

In lieu of “About Us” (with links to biographical sketches of the bloggers), the sidebar at pandragon.net has this: “Who We Be”. Is it okay for the liberal, white bloggers at pandragon.net to mock ghetto English? A libertarian or conservative blog would be considered racist for a similar lapse of taste.

Like Bill Clinton, the “boyz” at pandragon.net (and they are boys) can get away with it because “their hearts are in the right place.” Ha!

Something Controversial

Just a bit of bomb-throwing for a quiet evening:

1. When it comes to intelligence, people aren’t created equal.

2. People of lower intelligence tend to pursue instant gratification in favor of long-term rewards.

3. Therefore, democracy undermines liberty because:

a. Those who seek instant gratification have inordinate influence over the outcome of elections.

b. Those who seek political power can gain it by appealing to those who seek instant gratification.

c. This confluence of interests eats away the constraints on government that are the bulwark of liberty.

Racism in Detroit

You know what happens when a racial majority becomes arrogant with power? Of course, it runs roughshod over the racial minority? It’s happening in Detroit, which is more than 80 percent black. Here’s the story from The Washington Times:

Detroit’s plan for ‘African Town’ stirs racial tensions

By Brian DeBose

THE WASHINGTON TIMES

The Detroit City Council, in defiance of Mayor Kwame Kilpatrick, likely will move forward with plans to create an “African Town” in the tradition of Chinatowns and Little Italys nationwide, even though the issue has turned into a racially divisive economic-development proposal.

In July, the council resolved to build up a section of the city devoted to African and black American literature, cuisine and art, which Mr. Kilpatrick endorsed. He vetoed the resolution, however, when it became clear that the council’s plan would allow only black businessmen and investors to use the $38 million earmarked for the project.

Mr. Kilpatrick argued that the resolution is both racist and unconstitutional.

“It’s not the African Town proposal. We like the idea,” said Howard Hughey, spokesman for Mr. Kilpatrick. “But what they are proposing is to create a publicly funded private entity and give one man $40 million to use and distribute to investors, and it is unconstitutional to do that based on race and [the resolution] says very clearly that it would be.”…

Council member Kay Everett, who is black, said the first resolution was “ridiculous” and opposed the African Town resolution for being illegal and divisive.

“It is reverse racism, and you can’t right a wrong with another wrong. It’s reparations with public money,” she said….

Typically, Chinatowns, Little Italys and other locales, such as Spanish Harlem in New York, were created by immigrants in a time when they were not accepted in other areas of the city and forced to build their own businesses and communities centered on their respective cultures….

So, Detroit would use public funds to discriminate against non-blacks in erecting an ethnic district of the kind that other ethnic groups created with their own money and enterprise. At least the mayor and some council members see the plan for what it is: the arrogance of racial power.

Race and Acceptance

In some recent posts I have touched on racial discrimination and the law (here, here, here, and here). Now comes an article by Richard Dawkins (“Race and creation,” Prospect Magazine, October 2004), noted ethologist (a biologist who explores and explains the nature of animal behavior). Dawkins writes:

…It is genuinely true that, if you measure the total variation in the human species and then partition it into a between-race component and a within-race component, the between-race component is a very small fraction of the total. Only a small admixture of extra variation distinguishes races from each other. That is all correct. What is not correct is the inference that race is therefore a meaningless concept….

Interobserver agreement suggests that racial classification is not totally uninformative, but what does it inform about? About things like eye shape and hair curliness. For some reason it seems to be the superficial, external, trivial characteristics that are correlated with race – perhaps especially facial characteristics. But why are human races so different in just these superficially conspicuous characteristics? Or is it just that we, as observers, are predisposed to notice them? Why do other species look comparatively uniform whereas humans show differences that, were we to encounter them elsewhere in the animal kingdom, might make us suspect we were dealing with a number of separate species?

The most politically acceptable explanation is that the members of any species have a heightened sensitivity to differences among their own kind. On this view, it is just that we notice human differences more readily than differences within other species….

…We are indeed a very uniform species if you count the totality of genes, or if you take a truly random sample of genes, but perhaps there are special reasons for a disproportionate amount of variation in those very genes that make it easy for us to notice variation, and to distinguish our own kind from others. These would include the genes responsible for externally visible “labels” like skin colour. I want to suggest that this heightened discriminability has evolved by sexual selection, specifically in humans because we are such a culture-bound species. Because our mating decisions are so heavily influenced by cultural tradition, and because our cultures, and sometimes our religions, encourage us to discriminate against outsiders, especially in choosing mates, those superficial differences that helped our ancestors to prefer insiders over outsiders have been enhanced out of all proportion to the real genetic differences between us….

…Different languages, religions and social customs can serve as barriers to gene flow. From here,…random genetic differences simply accumulate on opposite sides of a language or religion barrier, just as they might on opposite sides of a mountain range. Subsequently,…the genetic differences that build up are reinforced as people use conspicuous differences in appearance as additional labels of discrimination in mate choice, supplementing the cultural barriers that provided the original separation….

And here we are, locked into differences that took eons to mature and are now deeply seated in human nature. Those differences will not disappear quickly or easily, as long as physically identifiable groups persist in clinging, overtly and defiantly, to their own languages and social customs. Asians have been quicker to assimilate the language and social customs of white America than have blacks and Hispanics. But all who have chosen to assimilate — Asian, black, and Hispanic — have been more readily accepted into the mainstream of American society, to their social and economic benefit.

There is only so much the white majority in America can do to erode racial barriers through the law. The minority, if it wants social acceptance, has to move closer to the mainstream in its languages and customs.

Favorite Posts: Affirmative Action and Race

Epstein’s Freedom, Revisited

Yesterday, in response to a post by Tim Sandefur at Freespace, I posed five questions about Richard Epstein’s new book, Skepticism and Freedom. Sandefur and Jonathan Rowe, writing at jonrowe.blogspot.com, have addressed the questions, here and here. Herewith, the five questions (italicized), followed by excerpts of Sandefur’s and Rowe’s responses:

1. In light of Epstein’s belief that we ought to be highly skeptical of the idea that an outside party has better knowledge about the choices (and the benefits from them) that a person makes, how does Epstein reckon that the state, as an outside party, is able to determine that the parties to a forced exchange will be better off as a result of the exchange?

Sandefur:

The issue is one of valuation—if third parties can’t compute value for the two contracting parties, how can the state know that a forced exchange will leave them worse off? This challenge echoes Randy Barnett’s challenge to Epstein in their recent debate in the pages of Reason magazine. Although Epstein didn’t really answer, I think one answer would be that the value isn’t always indecipherable. People are often able to put a money value on their losses, including the loss of their rights. In theory, just compensation would leave parties no worse off, even in their own eyes. (One major problem in eminent domain is that the erosion of the public use clause necessarily undercompensates, in addition to its other negative effects.) Epstein would probably say that in many cases people can tell you whether they’re worse off or not. True, this subjectivism could exacerbate holdout problems, but it’s at least a partial answer. Also, suppose everyone in the state agrees to the proposition that dollars shall be legal tender for subjective losses. If they do that, then it might be perfectly fine for the state to measure people’s losses in money values, and decide that they’re better off when those money values rise, even in the face of a person claiming that he’s been wronged.

2. What happens to the transactions costs that (presumably) keep the parties from undertaking an exchange that the state decides to force? Do the costs simply vanish or does the state (that is, taxpayers) defray them?

Sandefur:

[J]ust compensation would make up the transaction costs (which, presumably, would be lower anyway for the state than for the parties themselves, since in Epstein’s view, the lower transaction costs for the state are a primary justification for state action to begin with), and that compensation would come from flat taxation.

3. Is Epstein’s concept of forced exchange a justification of the integration of commerce (e.g., forcing whites to accommodate blacks at hotels, restaurants, etc., and forcing whites to offer houses to black as well as white buyers)?

Sandefur:

[See no. 4: ED.]

4. If Epstein’s concept of forced exchange justifies the integration of commerce, how does the state account for the preference of whites not to trade with blacks, or does the state simply regard that preference as illegitimate?

Sandefur:

Epstein doesn’t, so far as I know, use his forced exchange principle to justify curbs on private racial discrimination—but, as I said, I haven’t read Forbidden Grounds, so perhaps Jonathan Rowe knows better than I….

Rowe:

Let me note two points that Epstein makes in Forbidden Grounds (a polemic against anti-discrimination laws). First, like me, Epstein doesn’t believe that the pattern of segregation that we saw in the Jim Crow south could have persisted absent enforcement by state and local governments. He notes the efforts of segregationists to restrict the black vote as powerful evidence of this. “Without ironclad white political control, someone, somewhere would have tried to gain entry into local markets, given the supra competitive returns.” (Epstein, Postscript, 8 Yale Law & Policy Rev. at 331).

In those areas of life where explicit ordinances demanding segregation weren’t present, private violence enforced the color line and the Jim Crow governments let that violence go by refusing, in violation of the 14th Amendment, to enforce the “equal protection of the laws.” Moreover, Epstein points outs that state governments could also enforce collateral restrictions against such firms that bucked the color line—taxes, zoning permits, health inspections, and the like, “could be brought to bear on firms that did not toe the line set by Jim Crow.” (Epstein, Forbidden Grounds, at 246.)

Yet, Epstein would indeed be willing to allow for the existence of anti-discrimination laws in the private sector so long as they were Pareto justified. But the problem is, according to Epstein, they clearly aren’t. Much of Forbidden Grounds and his law review articles on the subject were written to demonstrate this….

5. If the state chooses to treat the preference of whites as illegitimate, by what criterion does the state judge the legitimacy of the preferences of parties to a forced exchange being contemplated by the state?

Sandefur:

[This] question confuses me a bit. I think one problem is that Epstein’s not arguing that these preferences are illegitimate, or even that the state should ignore them. He’s saying that the state could adopt a forced exchange: that is, force a new state of affairs on the world while compensating those who would prefer otherwise, in most cases. But this raises the spectre of the protection racket—that is, people will demand compensation for refraining from doing things they had no right to do. Epstein sees this problem, but I don’t think he has sufficiently answered it, at least, not in Skepticism And Freedom….

The best solution that Epstein offers in his context is to “den[y] the monopolist the absolute right to exclude by requiring him to supply his goods or services, not at whatever price he [can] fetch, but only at reasonable prices”—that is, he introduces a notoriously vague term which brings up all sorts of extra problems. Are those problems so bad that the cure is worse than the disease? I don’t think so, in the context of segregation, but as [the author of Liberty Corner] says, it’s awfully hard to draw the line, once we’ve conceded the state’s authority to force whites to accommodate blacks. Good intentions can then go terribly awry, as we all know.

Both Sandefur’s and Rowe’s posts are worth reading in their entirety. Again, they’re here and here.

Favorite Posts: Affirmative Action and Race

Epstein’s Freedom

In a post about Richard Epstein and his book, Skepticism and Freedom, Tim Sandefur of Freespace says:

The title comes from Epstein’s belief that we ought to be highly skeptical of the idea that an outside party has better knowledge about the choices (and the benefits from them) that a person makes. The person making the deal is in the best position to know whether the deal meets his desires or not, and unless the bystander is directly injured, he shouldn’t be able to substitute his choices.

But Sandefur later says:

A related element of Epstein’s argument — indeed, I think it’s the real thesis of the book — is that he believes the state may force exchanges between parties, without their consent, so long as these exchanges leave no party worse off, and leaves at least one party better off. The principle of eminent domain — about which Epstein wrote extensively in his book Takings — embodies this idea, ideally. Epstein acknowledges that this element of his thought makes him pretty unique among libertarians, who probably would not accept it. But Epstein believes that it is a necessary element of society; there are many collective agreements which would leave everyone better off, but which, due to some transaction cost, cannot be enforced. The law can then serve to enforce these agreements. This principle allows Epstein to (in theory) escape some of the more complicated problems of political philosophy, since it allows society to evolve in a direction that accommodates liberty in a practical manner[.]

Which leads me to ask:

1. In light of Epstein’s belief that we ought to be highly skeptical of the idea that an outside party has better knowledge about the choices (and the benefits from them) that a person makes, how does Epstein reckon that the state, as an outside party, is able to determine that the parties to a forced exchange will be better off as a result of the exchange?

2. What happens to the transactions costs that (presumably) keep the parties from undertaking an exchange that the state decides to force? Do the costs simply vanish or does the state (that is, taxpayers) defray them?

3. Is Epstein’s concept of forced exchange a justification of the integration of commerce (e.g., forcing whites to accommodate blacks at hotels, restaurants, etc., and forcing whites to offer houses to black as well as white buyers)?

4. If Epstein’s concept of forced exchange justifies the integration of commerce, how does the state account for the preference of whites not to trade with blacks, or does the state simply regard that preference as illegitimate?

5. If the state chooses to treat the preference of whites as illegitimate, by what criterion does the state judge the legitimacy of the preferences of parties to a forced exchange being contemplated by the state?

Favorite Posts: Affirmative Action and Race

More on the Legality of Discrimination

Yesterday, I wrote about the distinction between state-sponsored racial discrimination and private racial discrimination in “Is There Such a Thing as Legal Discrimination?“. There I spelled out my theory that collective agreement on an issue (e.g., racial discrimination) isn’t tantamount to state action. I argued that

regardless of how many citizens agree on a particular subject, that agreement is not tantamount to state action if the subject lies outside the power granted the state. Enforcement of an extra-constitutional collective agreement rests on the voluntary submission of citizens to that agreement. The same citizens who entered the collective agreement may dissolve it piecemeal by abandoning it, one or a few at a time, whereas they cannot similarly revoke a power specifically granted the state.

I conclude that the state has no business telling its citizens how they may or may not carry their racial attitudes into the conduct of their affairs, as long as that conduct is passive — that is, as long as it takes such forms as not buying from, hiring, or otherwise associating with members of certain groups. I say that not out of bigotry — I long ago outgrew the attitudes of my native State — but because we have gone far beyond the abolition of slavery and the granting of equal civil rights. We have practically repudiated freedom of association, we have severely undermined property rights, and — more lately with speech codes and hate-crime laws — we have entered an early stage of thought policing.

In sum, liberty is being vanquished in the name of liberty. It wouldn’t be happening if collective agreements were, indeed, tantamount to state action.

My post was prompted by two recent posts written by Tim Sandefur of Freespace. Sandefur has replied at length, and constructively, here. You should read all of it. I’m just going to touch on some of the points salient to my argument.

Sandefur notes that I took him “a bit more strongly” than he intended on the subject of collective agreement as a form of state action. He says:

First, I’m not trying to make an “argument,” since I’ve tried to make clear that I don’t really know what I think on this issue. My only point is that I’m troubled by the too-easy distinction between state-action discrimination (bad) and everyone-in-society-agreeing-privately discrimination (perfectly okay). One reason I am troubled by that is because I think if everyone in society agrees to something, the distinction between that and state action becomes illusory….So there’s no “argument”…just a qualm, and [the author of Liberty Corner] has done nothing to ease my concern.

Fair enough. Sandefur still has a qualm where I have none.

Sandefur goes on, in an aside, to question an antecedent argument to the conclusion I restated above, namely, that

the collective agreement that creates the state doesn’t give the state unlimited power of action. In fact it specifically limits the state’s power of action. The citizens of the state may — and do — withhold certain powers from the state, for the private exercise of citizens.

In response to that proposition Sandefur says:

First, it is true that the social compact doesn’t give the state unlimited power, but we ought to carefully distinguish between the moral and the constitutional limits on the state. The social compact is only limited by moral constraints—-that is, the people may write any social compact they wish so long as it gives the state no power that exceeds their moral authority. Constitutional limits then come on top of those limits. It is in the realm of Constitutional limits that the people withhold powers from the state for the private exercise of citizens (or to vest those powers in a different sovereign). At the level of moral limits on the social compact, the people do not withhold powers for their own private exercise, because they have no right to exercise those powers which are withheld. In other words, the people in forming the social compact are limited only by moral constraints-—they can’t steal, can’t murder, and can’t make a government that does these things. They don’t withhold these powers for their own private exercise.

There are subtleties in that statement which I don’t grasp, such as the distinction between moral and constitutional constraints, and whence moral constraints flow. Nevertheless, the statement seems to imply something like this: The state can’t have the power to allow slaveholding because slaveholding is an immoral power that the people themselves cannot exercise. But, as Sandefur says elsewhere in his post,

Many slaveowners prior to the [Civil W]ar pointed out that there just weren’t any laws that created slavery. It was closer to everyone-in-society-agreeing-privately discrimination than it was to state-action discrimination.

So, it seems to me that the people can exercise moral authority (or, in this case, immoral authority) that’s outside the scope of the state’s power. Before the passage of the Thirteenth Amendment the (Southern white) people reserved the power to hold slaves and the state didn’t have the power to deprive them of slaves. (If I have this wrong, I’m sure I’ll hear promptly from Sandefur. And I’ll gladly correct it.)

Now Sandefur comes to my point that a collective agreement is not tantamount to state action if the subject of the agreement lies outside the power granted the state. Sandefur says:

Perhaps. But…sometimes that line [between a private, collective agreement and state action] is not so obvious. Or, my favorite conundrum, the situation of tenant farmers in Mississippi, whose white landlords would immediately evict them if they dared register to vote. Now, this attitude was unanimous among the white landlords….[I]s [the author of Liberty Corner] willing to say that he has no problem with such a practice?

I do have a serious problem with such a practice. As far as I’m concerned it was an extortionate denial of a civil liberty granted under the Fourteenth Amendment. But the extortionate denial of the right to vote is a particular manifestation of racial discrimination, which the people (I believe) had empowered the state to deal with through the Fourteenth Amendment. That the state didn’t deal with it until the 1960s was due a failure on the part of the state to exercise a granted power, not to a lack of power.

But racial discrimination, in its broader manifestations (e.g., refusal to live near blacks) is neither an action of the state nor an action that the state can prohibit, per se. The state can be — and has been — empowered to deal with specific manifestations of racial discrimination, manifestations that deprive blacks of the constitutional rights conferred on them by the Thirteenth and Fourteen Amendments, among them the right to vote.

Sandefur concludes by saying,

I’m not trying to offer a systematic (or even coherent!) theoretical* defense of government intervention to correct racist outcomes. I just think that even in the absence of an explicit agreement…private action can be tantamount to state action. That’s why the Civil Rights Acts strike down “patterns and practices” as well as explicit policies.

*-I would definitely offer a systematic constitutional defense of such intervention. I think Harlan’s 13th Amendment argument regarding slavery and badges of servitude is absolutely right and that attacks on Jim Crow should have been made under that Amendment, or perhaps the privileges or immunities clause of the 14th amendment, and not under the commerce clause.

There’s the crux of the issue. Sandefur believes private action can be tantamount to state action. I disagree, for the reasons I have spelled out in my previous post on the subject and in this one. I further disagree with the validity of Harlan’s Thirteenth Amendment argument, and with the striking down of “patterns and practices” of racial discrimination. The use of such broad terms as “badges of servitude” and “patterns and practices” gives the state license to butt into private affairs at will.

Favorite Posts: Affirmative Action and Race

Speaking of Discrimination…

…a story at The Washington Times says:

Discrimination against white male found

By George Archibald

THE WASHINGTON TIMES

An English professor at the University of North Carolina illegally subjected a student to “intentional discrimination and harassment” because he was “a white, heterosexual Christian male” who expressed disapproval of homosexuality, the U.S. Education Department’s Office of Civil Rights has ruled.

Professor Elyse Crystall violated student Timothy R. Mertes’ civil rights, the agency said, by improperly accusing him of “hate speech” in an e-mail sent to students after a class discussion in which Mr. Mertes said he was a Christian and felt “disgusted, not threatened” by homosexual behavior.

“The e-mail message not only subjected the student to intentional discrimination and harassment, but also discouraged the robust exchange of ideas that is intrinsic to higher education and is at the very heart of the Constitution’s protection of free speech,” Alice B. Wender, the Education Department’s southern regional director of civil rights concluded in a letter to UNC Chancellor James Moeser on Wednesday.

It’s about time.

Is There Such a Thing as Legal Discrimination?

According to an Encarta article about Detroit, the Motor City’s population peaked at 1,850,000 in 1950. Its black population at the time was 16 percent of the total, that is, about 300,000. Detroit’s population in 2000 was about 950,000, of which 81.6 percent — about 776,000 — were black. Thus the non-black population of Detroit dropped by almost 90 percent in 50 years. The “white flight” from Detroit made property there much cheaper than in the nearby suburbs to which whites were fleeing. And so, as low-income blacks filled much of the space left by whites, Detroit’s black population increased by more than 250 percent during the same 50 years.

The white-flight phenomenon leads me to ask two questions: Was the desertion of Detroit (and other large Northern cities) by non-blacks a form of discrimination? If so, was that discrimination legal? I ask because Tim Sandefur in two recent posts at Freespace (here and here), has left me wondering whether there is any legal scope for widespread acts of racial discrimination.

It’s clear to me that non-blacks were discriminatory in leaving Detroit. I grew up in Michigan. I can vouch for its combination of Northern charm and Southern racial attitudes. Detroit’s whites might have rationalized their flight as a response to the greater prevalence of crime and drugs in the black community, but white flight stemmed from a visceral dislike on the part of most whites for living near blacks. (Detroit is, of course, only emblematic of racial attitudes and their consequences throughout the North.) The greater prevalence of crime and drug use among blacks gave whites an excuse for fleeing Detroit, but the underlying cause of white flight was old-fashioned bigotry.

Now the question is whether white flight was legal. Actually, I have no doubt that it was perfectly legal for the vast majority of Detroit’s white citizens to abandon that city and practically ghetto-ize it. Each departing household simply made a voluntary decision to leave and each arriving household simply made a voluntary decision to move in. But Sandefur’s posts lead me to wonder at what point it becomes illegal for the majority of citizens to act similarly out of racial prejudice. Here’s Sandefur, writing about the refusal of most Southern whites to trade with Southern blacks in the days of legal segregation:

If everyone in the state makes an agreement (even sub silentio) not to engage in trade with blacks, even if they don’t stamp that agreement with the state’s imprimatur, it is still a social compact, which means that it can’t pretend not to be state action….

[A] person has the right to discriminate in almost all cases, but when that discrimination reaches such a massive collective agreement, it becomes state action, I think, and subject to the same objections as state discrimination.

These statements are consistent with an earlier post, in which Sandefur says:

As Frederick Douglass pointed out in his speech on the Civil Rights Cases, what sense does it make that we say “the state may not do X, if we say all of the citizens may do X”?

Thus, if I’ve followed Sandefur’s reasoning correctly, it seems to be this:

1. A collective agreement amounts to state action.

2. The state cannot act to deny an explicit constitutional right or any other fundamental right, say, the right to engage in commerce.

3. Therefore, the widespread refusal of whites to refuse to engage in commerce with blacks is an unlawful state action.

The linchpin of Sandefur’s argument is his conflation of collective agreements and state action, a conflation that he traces to Frederick Douglass. Sandefur’s argument collapses if not all collective agreements amount to state action. Well, his argument collapses because:

1. It’s true that the state arises out a collective agreement of its citizens (or their chosen representatives).

2. But the collective agreement that creates the state doesn’t give the state unlimited power of action. In fact it specifically limits the state’s power of action. The citizens of the state may — and do — withhold certain powers from the state, for the private exercise of citizens.

3. Therefore, regardless of how many citizens agree on a particular subject, that agreement is not tantamount to state action if the subject lies outside the power granted the state. Enforcement of an extra-constitutional collective agreement rests on the voluntary submission of citizens to that agreement. The same citizens who entered the collective agreement may dissolve it piecemeal by abandoning it, one or a few at a time, whereas they cannot similarly revoke a power specifically granted the state.

I conclude that the state has no business telling its citizens how they may or may not carry their racial attitudes into the conduct of their affairs, as long as that conduct is passive — that is, as long as it takes such forms as not buying from, hiring, or otherwise associating with members of certain groups. I say that not out of bigotry — I long ago outgrew the attitudes of my native State — but because we have gone far beyond the abolition of slavery and the granting of equal civil rights. We have practically repudiated freedom of association, we have severely undermined property rights, and — more lately with speech codes and hate-crime laws — we have entered an early stage of thought policing.

In sum, liberty is being vanquished in the name of liberty. It wouldn’t be happening if collective agreements were, indeed, tantamount to state action.

Favorite Posts: Affirmative Action and Race

The Face of America

I’m reminded of something unpleasant in my past by this post at The American Thinker:

PC discrimination in the U.K.

Like the United States, Great Britain is in the throes of multiculturalism and political correctness. The latest evidence comes from racial discrimination complaints filed by London police. Half of them have been filed by Caucasian officers, alleging they are being unfairly passed over, as the police rushes to make itself “look like” the population it serves.

In order to achieve the desired racialist outcome, it is contended that 80% of the new hires will have to be non-white. That sort of nonsense is what happens when population demographics change rapidly, and it is assumed that all institutions should automatically reflect the new racial profile.

I once worked for a CEO who was a blatant Democrat; he carried his political prejudices in his briefcase. He insisted that the workforce at our tax-funded think-tank should reflect “the face of America.” No amount of logic could persuade him that we owed it to taxpayers to fill jobs with the best available candidates rather than satisfy his pseudo-egalitarian urges. (I say pseudo-egalitarian because upon becoming CEO one of his first acts was to double the already ample size of the CEO’s office.) In particular, no amount of logic could persuade him that unless we drastically reduced the quality of our professional staff (traditionally freighted with Ph.D.s), we would never achieve anything resembling “the face of America” among the professionals upon whom our reputation depended. We had these conversations with predictable regularity, and they always ended in a stalemate.

Luckily, our think-tank was merely in the business of producing analysis of doubtful usefulness and influence. Police forces and armies, on the other hand, have real work to do. It’s scary when that work is undermined by political correctness.

Favorite Posts: Affirmative Action and Race

Let’s Not Lose Sight of the Real Issue

Mike Rappaport at The Right Coast says this about Alan Keyes’s conversion on reparations:

I don’t favor reparations, but Keyes’s proposal does show that reparations need not be unduly statist. Reparations in the form of exemptions from taxes would be a lot better than reparations in the form of a government welfare program.

Yes, and being punched in the gut is a lot better than being shot in the gut, but a punch in the gut is still a brutal assault.

Advice about Battling Political Correctness

American Rhetoric has had 4.9 million visitors since August 1, 2001. I just learned about it. It has text and, sometimes, audio and video of speeches ranging from Lincoln at Gettysburg to Russell Crowe as General Deridius in The Gladiator. As I browsed the site, I came across the a Charlton Heston speech on “Winning the Cultural War” (Harvard University Law School, February 1999). As a conservative libertarian, I find it meritorious. Here are some snippets:

…Dedicating the memorial at Gettysburg, Abraham Lincoln said of America, “We are now engaged in a great Civil War, testing whether that nation or any nation so conceived and so dedicated can long endure.”

Those words are true again. I believe that we are again engaged in a great civil war, a cultural war that’s about to hijack your birthright to think and say what lives in your heart….

For example, I marched for civil rights with Dr. King in 1963 — long before Hollywood found it acceptable, I may say. But when I told an audience last year that white pride is just as valid as black pride or red pride or anyone else’s pride, they called me a racist.

I’ve worked with brilliantly talented homosexuals all my life — throughout my whole career. But when I told an audience that gay rights should extend no further than your rights or my rights, I was called a homophobe.

I served in World War II against the Axis powers. But during a speech, when I drew an analogy between singling out the innocent Jews and singling out innocent gun owners, I was called an anti-Semite.

Everyone I know knows I would never raise a closed fist against my country. But when I asked an audience to oppose this cultural persecution I’m talking about, I was compared to Timothy McVeigh….

You are the best and the brightest. You, here in this fertile cradle of American academia, here in the castle of learning on the Charles River, you are the cream. But I submit that you, and your counterparts across the land, are the most socially conformed and politically silenced generation since Concord Bridge. And as long as you validate that and abide it, you are — by your grandfathers’ standards — cowards….

If you talk about race, it does not make you a racist. If you see distinctions between the genders, it does not make you sexist. If you think critically about a denomination, it does not make you anti-religion. If you accept but don’t celebrate homosexuality, it does not make you a homophobe.

Don’t let America’s universities continue to serve as incubators for this rampant epidemic of new McCarthyism. That’s what it is: New McCarthyism. But, what can you do? How can anyone prevail against such pervasive social subjugation?

Well, the answer’s been here all along. I learned it 36 years ago, on the steps of the Lincoln Memorial in Washington D.C., standing with Dr. Martin Luther King and two hundred thousand people.

You simply disobey. Peaceably, yes. Respectfully, of course. Nonviolently, absolutely. But when told how to think or what to say or how to behave, we don’t. We disobey social protocol that stifles and stigmatizes personal freedom….

I’m asking you to disavow cultural correctness with massive disobedience of rogue authority, social directives, and onerous laws that weaken personal freedom.

But be careful. It hurts. Disobedience demands that you put yourself at risk. Dr. King stood on lots of balconies. You must be willing to be humiliated — to endure the modern-day equivalent of the police dogs at Montgomery and the water Cannons at Selma. You must be willing to experience discomfort….

When a mugger sues his elderly victim for defending herself, jam the switchboard of the district attorney’s office. When your university is pressured — your university — is pressured to lower standards until 80% of the students graduate with honors, choke the halls of the Board of Regents. When an 8-year-old boy pecks a girl’s cheek on the playground and then gets hauled into court for sexual harassment, march on that school and block its doorways. When someone you elected is seduced by political power and betrays you — petition them, oust them, banish them….

So that this nation may long endure, I urge you to follow in the hallowed footsteps of the great disobediences of history that freed exiles, founded religions, defeated tyrants, and yes, in the hands of an aroused rabble in arms and a few great men, by God’s grace, built this country….

Why Not Just Use SAT Scores?

Here’s what happens when universities insist on having a “diverse” student body (from the New York Times online):

Diversity Plan Shaped in Texas Is Under Attack
By JONATHAN D. GLATER

AUSTIN, Tex., June 8 — Texas lawmakers thought they had found the ideal alternative to race-based affirmative action.

Seven years ago, after a federal court outlawed the use of race in the admissions policies of the state’s public universities, the Legislature came up with an answer: It passed a law guaranteeing admission to the top 10 percent of the graduating class from any public or private high school. After a few years of hard work, diversity was restored and other states, including California and Florida, adopted similar approaches. The law looked like a success.

But the 10 percent rule, which seemed to skirt the tricky issue of race so deftly, is coming under increasing attack these days as many wealthy parents complain that their children are not getting a fair shake. A consensus seems to be building that some change is necessary.

Parents whose children have been denied admission to the University of Texas at Austin, the crown jewel of Texas higher education, argue that some high schools are better than others, and that managing to stay in the top 25 percent at a demanding school should mean more than landing in the top 10 percent at a less rigorous one. The dispute shows how hard it is to come up with a system for doling out precious but scarce spots in elite universities without angering someone.

Of course, the Times had to work in a gratuitous reference to “wealthy parents.” The real question is whether the 10-percent rule discriminates against the more intelligent high school grads in Texas. The answer is: It must.

The amount of money a school district has to spend per student depends on the average income of households in the school district. Income depends, to a large degree, on intelligence. And intelligence is a heritable trait. Thus, students from “wealthier” school districts are generally more intelligent than students from “poorer” school districts — because they were born smarter, not because of their more expensive schooling.

The 10-percent rule thus has the same effect as old-fashioned affirmative action. It discriminates against brighter students.

Favorite Posts: Affirmative Action and Race

The Cost of Affirmative Action

La Griffe du Lion, in “Affirmative Action: The Robin Hood Effect”, assesses the redistributive effects of affirmative action:

[O]n average a black worker between the ages of 25 and 64 earns an extra $9,400 a year because of affirmative action. Hispanics also benefit to the tune of almost $4,000 a year. However, being a zero-sum game, white workers pay an average of about $1,900 annually to foot the bill.

Working from data for 1999, La Griffe estimates that affirmative action cost white workers a total of $192 billion. But there’s more to it than that.

Because of affirmative action — and legal actions brought and threatened under its rubric — employers do not always fill every job with the person best qualified for the job. The result is that the economy produces less than it would in the absence of affirmative action.

GDP in 1999 was $9.3 trillion. Taking $192 billion as an approximation of the economic cost of affirmative action in that year, it’s reasonable to say that affirmative action reduces GDP by about 2 percent. That’s not a trivial amount. In fact, it’s just about what the federal government spends on all civilian agencies and their activities — including affirmative action, among many other things.

Favorite Posts: Affirmative Action and Race

Putting Hate Crimes in Perspective

Toward the end of a recent post I made this sarcastic observation:

We mustn’t hate other people, mustn’t we? If you do hate a person, and then you kill that person, you’re going to pay extra for it. Why, instead of trying to rehabilitate you we’re going to fry your butt. That’ll teach you.

Well, the last paragraph of “Analysis of Hate Crime” on a site called La Griffe du Lion says this:

In its last complete National Criminal Victimization Survey (1994), the Justice Department revealed blacks to have committed 1,600,951 violent crimes against whites….While blacks were committing these 1.6 million crimes against whites, whites were reciprocating with 165,345 violent offenses against blacks. Blacks, representing thirteen percent of the nation, committed more than 90 percent of the violent interracial crime. Fifty-seven percent of the violent crime committed by blacks had white victims. Less than 3 percent of violence committed by whites had black victims. In 1994, a black was 64 times more likely to attack a white than vice versa. This is the real story of hate in America. It is the media’s well-kept secret.

Hate may be a reason for crime. Hate may grow out of poverty, envy, resentment, or deeper psychological roots. Hate may be learned at home, at school, on the job, or among friends. But hate is not an excuse for crime.

Nor should hate be a reason to compound a criminal’s punishment. I have said this before because I believe that justice should truly be color-blind. I will not change my mind now, even though I am 64 times more likely to be the victim of a true hate crime than is the average black person in America.

Favorite Posts: Affirmative Action and Race

Social Injustice

From Economic Theories of Social Justice: Risk, Value, and Externality, by Anthony de Jasay:

Stripped of rhetoric, an act of social justice (a) deliberately increases the relative share…of the worse-off in total income, and (b) in achieving (a) it redresses part or all of an injustice….This implies that some people being worse off than others is an injustice and that it must be redressed. However, redress can only be effected at the expense of the better-off; but it is not evident that they have committed the injustice in the first place. Consequently, nor is it clear why the better-off should be under an obligation to redress it….

There is the view, acknowledged by de Jasay, that the better-off are better off merely because of luck. But as he points out:

Since Nature never stops throwing good luck at some and bad luck at others, no sooner are [social] injustices redressed than some people are again better off than others. An economy of voluntary exchanges is inherently inegalitarian….Striving for social justice, then, turns out to be a ceaseless combat against luck, a striving for the unattainable, sterilized economy that has built-in mechanisms…for offsetting the misdeeds of Nature.

Diversity

Segregation thrives, but it is voluntary segregation based on income and culture. Nothing wrong with that.

Diversity — a code word for forced integration — is a liberal pipe dream. How many well-off, well-educated liberals (including members of Congress and academe) choose to live in “diverse” neighborhoods?

Favorite Posts: Affirmative Action and Race