Sunday, May 22, 2011

Refighting the Past

You're never really done with legislation. You're never really done with human freedom or civil rights. Once you think you have them, there will always be someone who wants to try and roll them back. The price for freedom is eternal vigilance in so many definitions of the word.

Sometimes that vigilance means keeping your eyes open when the guy next to you in the subway keeps trying to light a fuse in his jacket. Other times that vigilance requires you to keep people from re-writing history to move political goal posts today.

The ongoing battle over the Civil Rights Act of 1964 - and yes I said ongoing because we aren't really done with it - got another boost with Ron Paul recently. While liberals and progressives stand around shocked to find out that people will actually say in public that they don't support the CRA (and are more shocked to find out these individuals still command political support), the forces of revisionism are hard at work to justify such political beliefs.

And it works. Remember folks, "the free market didn't enforce segregation, the government enforced segregation." Or that's the narrative, at least.

While hardly all-in with this narrative (like the Pauls), Doug Mataconis at Outside the Beltway comes dangerously close to rationalizing it.

Racial segregation in the South wasn’t a product of the free market, it was the product of a state imposing racial prejudices under the threat of criminal prosecution.

"Big Government" strikes again? Hardly.

While this article's explorations of SCOTUS decisions kneecapping the 14th Amendment in the Slaughterhouse Cases of 1873 (involving New Orleans) and the Civil Rights Cases of 1883 are quite valuable, I take issue with the idea that,

different outcome in The Slaughterhouse Cases and The Civil Rights Cases, the entire system of mandated racial segregation known as Jim Crow would have been under direct legal assault at the time of it’s birth.

There's a big concern I have with saying things like that. You see, Jim Crow was under legal assault from the time of its birth - The Civil Rights cases represented the first wave of such assaults, and Plessy vs. Ferguson represented the second wave. What we also know from our history is that these robust legal assaults, as well as others, failed.

An argument that:

So, as a philosophical matter, the Pauls are both correct that the state should not have the authority to tell businesses who they can choose as customers.

Is a almost an identical argument used by the Supreme Court to strike down the Civil Rights Act of 1875. And look what that philosophical matter got us - nearly 100 more years of Jim Crow and ongoing Jim Crow legacy today.

This issue is another place where I take exception with "libertarianism," even as I have my own robust blue libertarian streak of cynical distrust of the government.

Sorry folks, I. Live. In. The. South. Down here, you can't go six months without some popular politician reminding folks the importance of "state's rights" to ignore Federal laws (like the CRA) or complaining that all redistricting has to go through Justice Department approval in the same breath that carries discussions of diluting or off-loading minority voting strength.

Segregation and Jim Crow were state government mandates, free-market mandates, and cultural mandates all wrapped up in one. Businesses were getting subsidies and contributing to political campaigns back in the day just as much as they are today. As a matter of fact, that era is often described as the "good ole days" before all the "government regulations" came in and "ruined business." One wonders if more regular health inspections are the "government regulations" being discussed...

Should we even talk about the social stigma that would be ascribed to businesses that served "mixed" clientele during that time? After all, once schools and businesses were legally forced to integrate, white people fled to the suburbs and exurbs. There, they spent time socially engineering their own communities far away from the cities and the colored folks. They didn't have to go to school, shop with, or hire the colored folks if there ain't no colored folks around. And yet, the government doesn't interfere with their right to do so. As a matter of fact, it subsidizes the ability to self-segregate, by subsidizing road construction and oil exploration.

I think about all those free market forces at work when I drive through New Orleans East, an area where 71,000 people live where there's only ONE grocery store. Guess what race most of the residents there are.

The author sums up my whole opinion on the CRA in his closing:

by the time the 1964 Civil Rights Act came into being the distinction between private and public behavior under Jim Crow was a hard line to draw, especially when social pressure by Southern whites made it virtually impossible for any business owner who didn’t want to discriminate against blacks from doing so. The only way to bring down the whole system, a system that arguably might not have existed if the 14th Amendment hadn’t been virtually gutted in the latter years of the 19th Century, was to use the authority of the Federal Government to do so.

So, yeah, you could say that I don't mind "Big Government" robustly enforcing the 14th Amendment through the Civil Rights Act of 1964. While it may be philosophically OK to think that parts of the CRA are coercive in nature, and a little bit of overreach on the part of the government, I only wished we lived in a society so perfect that we didn't need a government to make sure doors of opportunity are open to all citizens. Until we get to that More Perfect Union, I don't mind "Big Government" telling people interested in starting a business that they will be unable to segregate based on race, creed, or color if they would like to do business in the United States. We ain't yet far enough removed from the bad ole days yet.


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