Wow, a Nominee With a Paper Trail to Debate!

I haven't got a verdict one way or another on Alito yet, but ThinkProgress' roundup of "facts" about the nominee's views is less than impressive. (Addendum: I see the Center for American Progress is pushing the same list.) Let's consider some of their claims.

ALITO WOULD OVERTURN ROE V. WADE In his dissenting opinion in Planned Parenthood v. Casey, Alito concurred with the majority in supporting the restrictive abortion-related measures passed by the Pennsylvania legislature in the late 1980's. Alito went further, however, saying the majority was wrong to strike down a requirement that women notify their spouses before having an abortion. The Supreme Court later rejected Alito's view, voting to reaffirm Roe v. Wade.

As blogger Patterico explains in some detail, it's awfully hard to justify that initial claim on the basis of Alito's dissent in the case they're talking about. His opinion seemed to be that there were enough exceptions (e.g. the spouse isn't the child's father; the woman worries the spouse will become violent) that a spousal-notification requirement for abortion—whether or not it's a good idea—didn't constitute an unconstitutional undue burden on the right. Now, I have no idea whether Alito wants to overturn Roe, but it seems an awful stretch to conclude that he would on the basis of that opinion. Next...

ALITO WOULD ALLOW RACE-BASED DISCRIMINATION: Alito dissented from a decision in favor of a Marriott Hotel manager who said she had been discriminated against on the basis of race. The majority explained that Alito would have protected racist employers by "immuniz[ing] an employer from the reach of Title VII if the employer's belief that it had selected the 'best' candidate was the result of conscious racial bias."

That's what the majority "explained," but it's sure not the impression you get reading the opinion. Basically, it looks like a court had to decide, inter alia, whether a hotel had failed to promote the plaintiff becaue of racial prejudice. And Alito's argument is that you might think the hotel's stated reasons for promoting someone else are weak, but that this isn't enough to show they were pretextual. I don't know enough about the fact pattern in the particular case to take sides in the instance, but again, the claim that Alito wants to "allow race based discrimination" seems a far cry from what I'm seeing in that dissent. (Requisite libertarian disclaimer: If some employer decides it doesn't want to hire people named Sanchez, I think it ought to be able to legally—though I'd hope for it to be swiftly punished by public opinion. All I'm arguing in this post is what it's reasonable to infer from Alito's opinions, not what's good policy.)

ALITO WOULD ALLOW DISABILITY-BASED DISCRIMINATION: In Nathanson v. Medical College of Pennsylvania, the majority said the standard for proving disability-based discrimination articulated in Alito's dissent was so restrictive that "few if any...cases would survive summary judgment."

I can't even find the opinion online in this case, but again, all we get here is a short excerpt of how the majority chose to characterize Alito's dissent. From what I can see, the case involved a question of whether a disabled medical student had provided her school with adequate advance notification of the kinds of accomodation her disability would require in the classroom. Again, it's hard to say more without seeing the opinions, but I can imagine quite a range of disagreements over what counts as adequate notification that fall short of constituting a disagreement over whether the law should "allow disability-based discrimination."

ALITO WOULD STRIKE DOWN THE FAMILY AND MEDICAL LEAVE ACT: The Family and Medical Leave Act (FMLA) "guarantees most workers up to 12 weeks of unpaid leave to care for a loved one." The 2003 Supreme Court ruling upholding FMLA [Nevada v. Hibbs, 2003] essentially reversed a 2000 decision by Alito which found that Congress exceeded its power in passing the law.

I was faintly hoping the case to which they refer might be a Commerce Clause decision in the Lopez vein—but sadly, no. It's an Eleventh Amendment sovereign immunity case, and has very little to do with the propriety of FMLA per se. So again, this is something of a red herring: Alito's views of Congressional power under the Fourteenth Amendment to abrogate state immunity under the Eleventh are apparently such that he would have held FMLA inapplicable to the states. I don't think I'd hold it against him if it were true that Alito "would strike down the Family and Medical Leave Act," but the opinion doesn't seem to support the claim.

ALITO SUPPORTS UNAUTHORIZED STRIP SEARCHES: In Doe v. Groody, Alito agued that police officers had not violated constitutional rights when they strip searched a mother and her ten-year-old daughter while carrying out a search warrant that authorized only the search of a man and his home.

Getting warmer, but looking over the opinion, it's not quite as bad as they're making it sound here either. The disagreement here isn't over whether carrying out unauthorized strips searches as such violates the Fourth Amendment—if a judge thought that were permitted, it would surely be a dealbreaker. Instead, the opinions reveal a dispute over whether the officers had a good-faith belief that their request to search all occupants at the premises had been incorporated into the warrant. On the basis of my skim, I'm inclined to prefer the majority's take, but Alito's dissent isn't as awful or crazy as the precis above would suggest. Finally:

ALITO HOSTILE TOWARD IMMIGRANTS: In two cases involving the deportation of immigrants, the majority twice noted Alito's disregard of settled law. In Dia v. Ashcroft, the majority opinion states that Alito's dissent "guts the statutory standard" and "ignores our precedent." In Ki Se Lee v. Ashcroft, the majority stated Alito's opinion contradicted "well-recognized rules of statutory construction."

Having found the Dia decision, I'm not all that surprised, in light of the pattern we've seen above, that the "hostile toward immigrants" claim seems, again, like a huge reach. Alito authored a partial-dissent there taking issue with the standard for evaluating a lower-level immigration judge's determination of an asylum petitioner's credibility. I can guarantee I'm out of my depth in evaluating this one on the substantive merits, but again, the bolded claim seems, at the very least, like an extraordinarily loose inference.

Addendum: Kos is recycling the same talking points, with some equally misleading commentary. Apparently, the FMLA decision tells us that "For Alito, workers shouldn't be able to take 12 weeks of unpaid leave to take care of newborns or loved ones." And the Doe v. Groody opinion reveals Alito's view that "Not only is [sic] strip searches of 10-year-old girls okay, but of wives as well since they are all merely that man's chattel." In a lot of ways, the first complaint is parallel to the silly "why do you hate America?" rhetoric folks at Daily Kos rightly chafe at. You think the Fourth Amendment proscribes certain anti-terror measures? You must be pro-terrorist! You think the Eleventh Amendment bars applying FMLA to states? You must be anti-people-taking-care-of-sick-relatives! The thing about wives as chattel is too ludicrously disconnected from anything in the decision—which, again, I'm inclined to disagree with—to take seriously.

Comments

M1EK | October 31, 2005, 12:36pm | #

"(Requisite libertarian disclaimer: If some employer decides it doesn't want to hire people named Sanchez, I think it ought to be able to legally—though I'd hope for it to be swiftly punished by public opinion.)"

It's damn easy for people to say this TODAY, especially if they don't happen to be black, which is the one group which I still see apparent discrimination against. (at least where I live, Hispanics are doing about as well as merit would otherwise suggest).

This kind of reminds me of a thread I participated in, to my later chagrin, with a smug 20-year-old Asian guy who asserted that black folks should have just sucked it up and endured segregation for a while longer (i.e., the civil rights movement was needlessly provocative). I asked the FSM to apply his noodly appendage and send the smug jackass back in time to the 1800s on a railroad construction gang somewhere and see if he was willing to wait his whole life for somebody to grant him civil rights, but for some reason He refused my request.

md | October 31, 2005, 12:40pm | #

"though I'd hope for it to be swiftly punished by public opinion"

That's a wishful thinking and putting the cart before the horse. How do racist judges get to be appointed? People opined that it's ok to elect a president who thinks it's ok to appoint a racist judge.

Mike Kole | October 31, 2005, 12:40pm | #

Yeah- you have to watch out for guys named Sanchez.

I'll be looking for Alito's position on eminent domain and property rights related items.

M1EK | October 31, 2005, 12:40pm | #

Oh, and before I get jumped on, yes, I understand the difference between government-sanctioned segregation and the choice of private businesses to do the same. I also think that pragmatism compels us to occasionally intervene in private business affairs in situations like this if we want to have a stable orderly society where people don't lose hope and just start burning shit down.

madpad | October 31, 2005, 12:50pm | #

Julian,

Good chapter and verse on the "highlights" of Alito's record.

For me, the jury's still out and I, too, have a great deal to read and ponder before coming to my own conlusion.

But the facts are he came down on the side of a number of issues that drop him into the "scary conservative" side of the equation. If it walks like a duck...

One thing's for sure...this is going to be a fun ride for the next few months.

crimethink | October 31, 2005, 12:51pm | #

Didn't know anything about Alito before today, but what I've seen has been undiscouraging. But I think libertarians and conservatives have to be careful of embracing Alito's Attack of the Clones just because it's better than Miers' Phantom Menace...

MP | October 31, 2005, 12:59pm | #

I don't understand how some of these activist web sites expect to be taken seriously. A prior record may hint at where a person leans, but it is not an accurate predictor of where they'll fall on a future case. For these sites to make such bold claims completely undermines their legitimacy.

Hakluyt | October 31, 2005, 12:59pm | #

crimethink,

He's been a movement conservative poster-child for a while now.

panurge | October 31, 2005, 1:12pm | #

Whether or not Alito is confirmed will depend on how the Dems attack. Will they initiate a discussion with the public on a broad range of issues where Alito could be seen as too strict or antiquated in his views? Or will the just grill him about abortion?

panurge | October 31, 2005, 1:13pm | #

"They," not "the." Geez, and I'm trying to get a job as a copy editor...

fishfry | October 31, 2005, 1:15pm | #

Alito worked for Ed Meese. That's two strikes against him in my book.

JD | October 31, 2005, 1:26pm | #

Alito may not be libertarian-friendly, but you can't tell a thing from the list. A Republican with paper-trail is nominated, it's pretty much a given that leftists will paint him as the reincarnation of Hitler. What else is new? We need our own analysis.

Hakluyt | October 31, 2005, 1:30pm | #

JD,

Yes, you echo my thoughts in the previous Alito thread. Depending on the Center for American Progress (or whoever) for such analyses is going to get skew things in such a way that we might view the individual in question more positively than we should.

David_Duke | October 31, 2005, 1:36pm | #

I would exclusively patronize any and all hotels that refused to hire anyone named Sanchez. I would also encourage my racist friends (of whom there are more than enough) to support them.

Take that, public opinion!

1skeptic | October 31, 2005, 1:43pm | #

"Requisite libertarian disclaimer: If some employer decides it doesn't want to hire people named Sanchez, I think it ought to be able to legally?though I'd hope for it to be swiftly punished by public opinion."

Do keep telling us, apartheid is ok, slavery is cool, segregation is natural. After all, its libertarian, so how can it be wrong? If it was, it would have caused bankruptcy, or even national economic decline.

I can't believe how much I have to restrain from swearing. How thick does one have to be, to not learn even from recent history. Discrimination is against MINORITIES and the POWERLESS, and costs the MAJORITY and the POWERFUL nothing, if anything, it gives them an economic advantage.

Larry A | October 31, 2005, 1:45pm | #

While I, like others, need a better look at Alito before I form an opinion, I can unequivacally say I'm darn glad none of the people writing these articles are sitting on the Court.

AK | October 31, 2005, 1:47pm | #

It doesn't matter what you clowns think. There are only about 100 libertarians in the world, and unfortunately each and every one has a blog. Your opinions are irrelevant. Put down the bong, return the porn to the video store, and move out of your parents' basements.

1skeptic | October 31, 2005, 1:49pm | #

And, no doubt it may come as a surprise to some here, people will trade absolute economic gain for higher relative standing. That, combined with majority/minority standing and power relations is what makes discrimination work. Can't believe this needs explaining to anyone old enough to be on this blog.

John | October 31, 2005, 1:51pm | #

Whether or not Alito is confirmed will depend on how the Dems attack. Will they initiate a discussion with the public on a broad range of issues where Alito could be seen as too strict or antiquated in his views? Or will the just grill him about abortion?


The Dems are already all over NPR saying that they guy is a cross between Pat Robertson, Hitler (of course) and Bull Conner who would send the court "dangerously right" yada yada yada. Since this guy has a record it would be nice to have a real public debate over Consititutional Law issues. Fat chance.

kwais | October 31, 2005, 1:51pm | #

I guess if he would over turn Roe vs Wade, that would be good. To the best of my understanding hat one was bad law anyways, abortion is a state issue, not a federal one.

People For the American Way opposes this guy, that is cool too. Them opposing someone is close to an endorsement from me.

I'd like to know where this guy stands on the 2nd Ammendment, where he stands on the commerce clause, where he stands on campaign finance reform or the 1st Ammendment, I'd like to know more about the guy. But then I guess we all would.

Hakluyt | October 31, 2005, 1:54pm | #

1skeptic,

Do keep telling us, apartheid is ok...

Apartheid was a state-enforced system of seperation and discrimination.

...slavery is cool...

As a legal institution it couldn't have existed without the state to enforce it, and these days slavery is practiced by people who must use coercion to make individuals their slaves.

...segregation is natural.

Yes, groups of people do segregate themselves and their is nothing we can do about that. (This statement assumes that you are not referring to the government-mandated system of segregation in the Jim Crow South or much of the rest of the U.S.).

Eric the .5b | October 31, 2005, 2:00pm | #

Do keep telling us, apartheid is ok, slavery is cool, segregation is natural.

Funny, no one here said any of that. Funnier, all of those things were the work of governments.

Sad that someone using "skeptic" in a name would show no command of logic.

mediageek | October 31, 2005, 2:07pm | #

Do keep telling us, apartheid is ok, slavery is cool, segregation is natural. After all, its libertarian, so how can it be wrong? If it was, it would have caused bankruptcy, or even national economic decline.

Just because I oppose the state doing something does not mean that I oppose that thing being done.

Eric the .5b | October 31, 2005, 2:10pm | #

Reading further on Think Progress, I keep expecting to see:

Alito hostile to Mom, apple pie

Alito sympathetic to eating kittens

Alito against all that is good and just

mediageek | October 31, 2005, 2:13pm | #

Well, it looks like Alito's nomination has the gun-grabbers all up in arms.

Which, despite the creepy stuff coming from the Religious Right, makes me smile.

Evidently, and this is a good sign for fans of interstate commerce as well, he dissented in US v. Rybar by stating that the federal government has no jurisdiction to regulate or ban possession of machineguns, that it is the sort of thing that each state should decide for itself.

Make of that what you will.

Iron Lungfish | October 31, 2005, 2:15pm | #

Strip-searching a ten-year-old girl based on a search warrant for the house she lives in? Well, I'm sure glad I've got libertarians to look out for my personal freedoms these days.

SPD | October 31, 2005, 2:17pm | #

I guess if he would over turn Roe vs Wade, that would be good.

I'd like to know where this guy stands on the 2nd Ammendment

kwais,

I can't remember where I read this, but Alito believes all unborn fetuses should be armed. That may or may not address both of your concerns.

dhex | October 31, 2005, 2:17pm | #

AK is demonstrating a common problem with libertarian debating tactics through a sort of archetypal trickster methodology.

think of it as the mirror side to people flipping out about "why don't we regulate EVERYTHING you statist whore?"when someone says "hey, you know what, wal-mart's practices are sucky" or "the pharmaceutical industry seems somewhat unethical to me, and may be run by lizards in human form."

Eric the .5b | October 31, 2005, 2:23pm | #

And if a private organization wants to discriminate against shapeshifting reptoids, dhex, that is their right. But the government mustn't, and that's why the reptoid community has taken such an interest in covertly repla-, er, lobbying government officials.

SPD | October 31, 2005, 2:33pm | #

Why does anyone have a "right" to discriminate? What is the official libertarian view on this? Do corporate rights to hire based on hidden criteria trump the rights of individuals to find a job for which they are the most qualified? Does it take a lawsuit to rectify this? I think state-sponsored programs like affirmative action cause more harm than good, but that doesn't mean I believe people have to take this kind of crap from some smug asshole still living in the 1950's.

MP | October 31, 2005, 2:38pm | #

Why does anyone have a "right" to discriminate?

It's called Freedom of Association.

However, it is incorrect to assume that because one supports the Freedom of Association, therefore they oppose the civil rights legislation of the 50's/60's.

Eric the .5b | October 31, 2005, 2:39pm | #

Why does anyone have a "right" to discriminate?

Because everyone has a right to choose who they interact with, associate with, and do business with.

I don't have a right to a job working as a programmer, and my employer doesn't have a right to have me work for them as a programmer. I and my employer have the right to make an agreement so that I work for them as a programmer. If I don't want to work for them, or they don't want me to work for them, it's over. I can't refuse to be fired or assert that I am hired in the first place, and they can't tell me my resignation has been dismissed or walk up and say, "Hey, bub, you work for us, now, so if you know what's good for you, you'll show up at our office at..."

SPD | October 31, 2005, 2:48pm | #

However, it is incorrect to assume that because one supports the Freedom of Association, therefore they oppose the civil rights legislation of the 50's/60's

Fair enough, but please explain what seems on the surface like a contradictory statement. If companies are allowed to freely discriminate when choosing whom to hire, why have any relevant laws on the books? Aren't they rendered unenforceable?

Jason Ligon | October 31, 2005, 2:51pm | #

"Do corporate rights to hire based on hidden criteria trump the rights of individuals to find a job for which they are the most qualified?"

That second right? It doesn't exist. You might as well have a Right to Have the Man Respect You for Who You Are And Not Get a Haircut.

Jason Ligon | October 31, 2005, 2:54pm | #

SPD:

The libertarian argument is that the relevant laws should not be on the books because they violate freedom of association.

SPD | October 31, 2005, 2:54pm | #

So much for meritocracy.

eric mattingly | October 31, 2005, 2:56pm | #

SPD,

I think the matter (fortunately or not) falls back on this: agent A is paying money for sevice X; agent A, however, does not want agent B to revceive A's money for X. Therefore, since A is in posession of the money (assuming that such posession is uncoerced), there is no intrinsic right of B to receive A's money for any reason whatsoever. A, in the context of a minimal or law-governed state, can choose to spend said money in whatever way is deemed necessary. The Public (P), however, can decide that A's actions are unacceptable and therefore refuse to give THEIR money to A's organization-- because the same rule applies: P has the same right to its money that A has to his/hers. To allow the state to expand past a minimal point not only potentially infringes on A's rights (about which we may not care), but also onto P's rights because the logic can be extended indefinitely without severe restrictions on said expansion.

It becomes more complicated when we realize that A may represent a public for profit organization (a corporation). But A's actions, since they are open to more criticism than from just P (i.e. the stockholders), are even more susceptible to criticism.

Or something like that.

MP | October 31, 2005, 2:58pm | #

The libertarian argument is that the relevant laws should not be on the books because they violate freedom of association.

Correct in general, but there are certain bits of civil rights legislation which had a moral necessity that tended to trump (for some) the absolutist position of Freedom of Association.

MP | October 31, 2005, 3:04pm | #

So much for meritocracy.

Meritocracy is a laudable moral code. So much so that citizens should mandate that this is what the goverment practices. But we should not have it forced on us by the goverment.

SPD | October 31, 2005, 3:05pm | #

eric,

Well put. I'm curious to know, as Mr. Sanchez originally hoped in his post, how many times a company has actually changed its hiring or promotion policies simply because of public opinion, as in "I won't shop at/ invest in X because I know they don't promote women."

I don't/won't shop at Wal-Mart because I've read too much about how they treat their employees, suppliers and overseas laborers like shit. I think they stifle small business and flirt with monopoly whenever possible. But ultimately their bottom line says they don't have to change a damned thing.

I don't advocate government intervention in this case. But I think it's a fantasy to simply hope a company will change their ways if enough people say "Tsk, tsk." It's a philosophy of libertarianism with which I'm still struggling.

toxic | October 31, 2005, 3:06pm | #

Guys, you have to keep in mind that a good judge doesn't just vote his opinion. It's not like going on Oprah and asking Dr. Phil what he thinks.

Judges often make decisions that are distasteful and/or morally questionable (even to themselves) because they have to in order to maintain the stability of the legal system. In short, maintaining a solid rule of law is more important than any one incident (like the strip search, possibly). Laws that are swiss-cheesed with exceptions do not provide much guidance or protection. And judges have to protect citizens and the state's powers as well in a perpetual balancing act.

Judges will also sometimes make decisions based on extremely arcane technical matters that are both extremely important and yet very, very tedious. To journalists-- well, let's just say that they lack the intellectual tools to grasp what is going on, legally. The population at large gets most of their legal knowledge from TV shows.

So basically what I'm saying is this--- a one paragraph description of the case and how he ruled proves virtually nothing about the quality of the opinion or the underlying rationale. It simply can't, particularly if it is designed for mass consumption. It's incredibly easy to misrepresent opinions, because they often hinge on ideas that the public hasn't even heard of, and the media is too lazy/stupid/biased to explain it.

In any case, the ideal judge is not someone who inserts his personal prejudices into the case. He takes the law as it is and uses that as the logical framework for his decisions. If that decision is stupid or immoral, it is the responsibility of the people or the legislature to get off their ass and fix it. Scalia, for one, is a judge who takes the supposed judicial standards for constitutional review seriously. This often leads to unpleasant results. Those standards, if taken seriously, result in damage to civil liberties. Which is hardly surprising, given the state of civil liberties until the last century. The Constitution was not designed to provide the extent of civil liberties we enjoy today. But with a living constitution take on things, you get a commerce clause that has been interpreted to mean, in effect, the exact opposite of the plain language of the clause. So both schools of thought lead to unpleasant results. I think it would be a good time now to rein in SCOTUS, because they are going a little too wild. Raich and Kelo, anyone? Thanks, yeah, thought so.

Which is not to say that I would like a court full of Scalia's--- but it would be a good idea to get a few more people who interpret the constitution narrowly. It should lead to less overreaching. I swear the court majority of the last decade has gotten to the point where it isn't even really trying to hide the fact it is essentially voting its preferences instead of the law. They pretty blatantly ignore the axioms of constitutional construction when it suits their purpose.

MikeP | October 31, 2005, 3:08pm | #

And, no doubt it may come as a surprise to some here, people will trade absolute economic gain for higher relative standing. That, combined with majority/minority standing and power relations is what makes discrimination work. Can't believe this needs explaining to anyone old enough to be on this blog.

You are correct. That is exactly how apartheid came about. Rather than allow free association between corporations and the workers they wanted to hire, white workers got laws passed which made it expensive or illegal to hire nonwhites into particular occupations.

You appear to be very astute. I'm sure that you'd recognize that the same thing goes on today in the United States. Instead of 'apartheid,' we now call it 'immigration law.'

Eric the .5b | October 31, 2005, 3:10pm | #

If companies are allowed to freely discriminate when choosing whom to hire

They aren't.

Garth | October 31, 2005, 3:11pm | #

SPD, You seem to miss the point. When the government forces companies to hire people based on anything BUT merit then meritocracy is thrown out the window.

Eric the .5b | October 31, 2005, 3:13pm | #

Well put. I'm curious to know, as Mr. Sanchez originally hoped in his post, how many times a company has actually changed its hiring or promotion policies simply because of public opinion, as in "I won't shop at/ invest in X because I know they don't promote women."

Public opinion seems rather powerful, but a side issue, really. The main issue in this case is "what idiot decides he doesn't want black people as his customers"?

I don't advocate government intervention in this case. But I think it's a fantasy to simply hope a company will change their ways if enough people say "Tsk, tsk."

If enough people actually change their buying habits, it's no fantasy.

SPD | October 31, 2005, 3:19pm | #

Garth,

But doesn't freedom of association mean the employer can look past merit and hire whomever they feel the most comfortable around? That's what I was implying.

eric mattingly | October 31, 2005, 3:19pm | #

SPD,

Thanks. I see your point, but I think there is a real tendency among libertarians (and I include myself) to see allowing for all the unpleasantries of the minimal state (neo-nazi stores, for instance) as ultimately promoting an end to discrimination. Theoretically, this is because if profits are your main motivation, you are not logically going to care who contributes to those profits. Those who start businesses for reasons other than profit are not going to remain profitable for long so they'll go out of business. It is, in other words, the argument that if you start alienating potential customers the you'll have not customers eventually.

With places that allegedly "mistreat" their employees, I would fall back onto an historical argument: the standard of living for unskilled workers has increased without cease since the American industrial flowering. If they are not what we would want, they're a damn sight better than they were. This is primarily because of the market, and thus I see no reason why the market won't contribute to things getting even better. Naturally, of course, we cannot ever expect perfection.

M1EK | October 31, 2005, 3:20pm | #

"The main issue in this case is "what idiot decides he doesn't want black people as his customers"?"

Did you take a history class in school?

Easy to say "no idiot would do it". However, plenty of idiots did. Enough, in fact, that it was pretty damn hard to find a place that would serve you, if you happened to be the wrong color.

Eric the .5b | October 31, 2005, 3:24pm | #

Then why did the South have to have all those Jim Crow laws, M1EK?

Oh, yeah. To make companies disserve black people.

MikeP | October 31, 2005, 3:26pm | #

Public opinion seems rather powerful, but a side issue, really.

Indeed, losing the business of the marginally disgusted customer is not the only cost.

Limiting the pool of potential employees is also going to raise your payroll and decrease employee competence compared to your nondiscriminatory competitor. These are actual production costs.

That's why effective employment discrimination always includes a governmental mandate to make sure that your competitors suffer the same penalties for discrimination that you do.

Julian Sanchez | October 31, 2005, 3:27pm | #

Oy, I'm sorry I mentioned it.

Eric the .5b | October 31, 2005, 3:29pm | #

It would have probably come up anyway, Julian.

stacy | October 31, 2005, 3:33pm | #

SPD:

Speaking of Wal-Mart, there was a relevant article in Saturday's WaPo:

http://tinyurl.com/7fny3

They are taking action on the very causes you mention. They are doing so precisely because so many people have bitched about their business practices. No, they don't have to do a damn thing, but they are - because it is to their advantage to be seen as a responsible employer and a positive force in their communities.

Now, you can say that Wal-Mart came to this realization far too late. You can say that what they are proposing isn't good enough. And, they are also an extreme case - most companies aren't subject to that level of scrutiny. But the bottom line is that they ARE trying to buff up their image because public opinion matters.

SPD | October 31, 2005, 3:44pm | #

stacy,

It would be a step in the right direction. But why did they wait until it got this far? They could have taken action a long time ago and avoided the public image crisis. Besides, it doesn't look as if they're trying to anything substantial

==========================
In the first three to 12 months, the company was told, it should find ways to convince the public that its wages and benefits are better than perceived, spread messages that it cares for employees, build local relationships, increase local philanthropy, and research the impact of stores on their communities. Next, the study calls on the company to create another initiative that benefits workers ("e.g. workplace education, child-care program"). Finally, the study says Wal-Mart should "take public leadership on broader societal issue."
==========================

Let's see if this goes beyond the "recommendation" stage. I'd prefer to wait and see if this all isn't just a bunch of public relations BS. It would be nice to see an independent group follow up to make sure Wal-Mart does what it promises to do. Until then, I'll continue to buy my 64-packs of Quaker Oatmeal elsewhere.

D Anghelone | October 31, 2005, 3:56pm | #

Oy, I'm sorry I mentioned it.

Ay carumba! If NYU refused admission to Sanchez?

It's not like you're a laborer so let's hit you where it hurts.

Jim | October 31, 2005, 3:58pm | #

After reading these comments, I'm glad I don't consider myself a libertarian. They live in a Fantasy Land where people always act in their best economic interests rather than on their bigotry, bigotry never is an effective barrier to anyone attempting to advance in life, and clearly immoral behavior never hurts anyone else. I guess sweatshops, child labor abuses, and lynching were all just figments of our imagination.

Eric the .5b | October 31, 2005, 3:59pm | #

When you link to the mental abyss, the mental abyss links back to you.

stacy | October 31, 2005, 3:59pm | #

SPD:

You're diverting from the point of my diversion from the original post. You've staunchly claimed in this thread that public opinion has no relevance to powerful businesses, specifically Wal-Mart. However, the contents of that article clearly show that public opinion does matter.

Even if it just ends up being "public relations BS," it is still BS created by the power of public opnion.

I'm no advocate for Wal-Mart. I don't shop there, either. I walk to the local grocery store like a hippie. (Though I do have to give Wal-Mart credit for their efforts after Katrina - they mopped the floor with FEMA.)

But, at the same time, I can't read that WaPo article and say that public opinion is irrelevant to Wal-Mart and, by extension, business in general. Even if the changes are late, even if they are ultimately ineffective, Wal-Mart wouldn't even consider any changes if public opinion was as irrelevant as you stated earlier. It may not matter enough based on where one stands with Wal-Mart, but it does matter.

SPD | October 31, 2005, 4:04pm | #

stacy,

BS may sell used cars, but I'll believe it when I see it. Until then, it's just pandering to the disgruntled masses. Make a lot of promises to shut people up -- or stop the lawsuits --, then one by one roll them back (like their prices).

Eric the .5b | October 31, 2005, 4:08pm | #

SPD, you asked to know if corporations like Wal-Mart response to public opinion. That's been answered with a "yes".

Meyer | October 31, 2005, 4:09pm | #

Jim,

You shouldn't judge all libertarians based on the postings of crypto-Republicans. Real libertarians are pro-freedom not pro-corporation.

Julian Sanchez | October 31, 2005, 4:13pm | #

Well, I don't know if I'm a "laborer" but I am, you know, employed. So I think the parallel works fine. And it's "caramba." If you're going to be a prick, at least get the spelling right.

mark | October 31, 2005, 4:14pm | #

"The main issue in this case is "what idiot decides he doesn't want black people as his customers"?"

Did you take a history class in school?

Easy to say "no idiot would do it". However, plenty of idiots did.

It's not as if this has completely gone away either. Back when I was a commercial artist, I was asked by 3 different small business clients to remove the black people stock images from their advertising or business collateral. The 'models' in question we'ren't even the focus of the image, just one of a number of elements in the picture. I was appalled but I was also low injun on the totem pole working on a freelance basis and not really in the position to question any of their decisions. A couple of times we ended up using less appropriate pictures rather than use the one with blacks in it.

The Great Ape | October 31, 2005, 4:15pm | #

Re: Wal-mart. Whatever they claim their intentions to be on this minumum-wage schtick, their position will invariably squeeze the margins of its competitors more than its own. This is a business move many more times over than it is an altruistic move. Wal-mart doesn't just all of a sudden find Fair Wage God.

Eric the .5b | October 31, 2005, 4:19pm | #

Which is the point of being a free-market booster. You don't have to rely on hoping that companies "come to Jesus". You can rely on their own greed.

Mark | October 31, 2005, 4:27pm | #

Wow. Where did all these leftist posters with no concept of individual liberty come from? I thought this was supposed to be a libertarian site.

emme | October 31, 2005, 4:28pm | #

"AK is demonstrating a common problem with libertarian debating tactics through a sort of archetypal trickster methodology."

What does Carl Jung have to do with libertarian debating tactics?

Jason Ligon | October 31, 2005, 4:35pm | #

I would just like to say that Julian did some good leg work and analysis in the 99% of the article that wasn't the aside about freedom of association and, er, Walmart or something.

The partisans are out to play. Kos has some not dumb people that post there, but they lose their minds whenever the other team wins. DeLong does the same thing. And Yglesias. The right does it too, but I honestly don't ever visit those sites. Of course, the most important charge to level based on partisan analysis is that the guy will be an 'ideologue' - presumably something Kos would never stoop to.

Stevo Darkly | October 31, 2005, 4:37pm | #

"The main issue in this case is "what idiot decides he doesn't want black people as his customers"?"

Did you take a history class in school?

Easy to say "no idiot would do it". However, plenty of idiots did.

Yes, some idiots did, and the market punished them. Others did not, because they feared the market's punishment.

Until the government punished them for failure to discriminate -- and forced them to do what was "politically correct" at that time.

I suggest you read this bit of history before you embarrass yourself further. :)

Stevo Darkly | October 31, 2005, 4:47pm | #

It's not as if this has completely gone away either. Back when I was a commercial artist, I was asked by 3 different small business clients to remove the black people stock images from their advertising or business collateral. The 'models' in question weren't even the focus of the image, just one of a number of elements in the picture. I was appalled but I was also low injun on the totem pole working on a freelance basis and not really in the position to question any of their decisions. A couple of times we ended up using less appropriate pictures rather than use the one with blacks in it.

As a counter-example, the graphic designers in the office next to mine, down the hall, and all around me are constantly prowling the stock-photo catalogs for photos of people who aren't white. "We need to show diversity in the photos" is a constant refrain. Why? Because we, and our clients, are always trying to show that the things we promote (for example, employee benefit programs) have something to appeal to all kinds of people, not just white males. We've even been know to use PhotoShop to alter photos in order to darken a skin tone or two.

There are all kinds of clients. But yours are dumb and stupid people who apparently can barely manage a small business, while ours are smart and successful and run Fortune 500 companies. :) Irrational discrimination generally gets spanked by the Invisible Hand.

Speaking of which, I'm going back to work now so I don't get hit.

eric mattingly | October 31, 2005, 4:48pm | #

Jim,

Here's my hackneyed, cliched, Friedman/Hayek inflected quote of the minute (that nonetheless happens to be true). You claim that libertarians live in a "fantasy world" that assumes that everyone is always going to act in their own "economic best interests" etc. etc. etc. Now, my response to you is that, following the comments of Eric the .5b (which confuses the hell out of me by the way) and just a general knowledge of history, we can see that bigotry is most prevalent in societies whose governments make a special attempt to promote such bigotry. The Jim Crow Laws are a great american example. There is also apartheid. There is also the racist and ethnocentric immigrations laws that used to be in effect in Canada (and still are to a certain degree). It seems logical to assume that countries make laws because of perceived threats to whatever order they wish to preserve. Ergo, it seems equally logical to assume that South Africa, the south, Canada, Serbia, whatever would not have made racist laws UNLESS THEIR RACIST AGENDAS WERE BEING THREATENED.

Then who was threatening these orders? Well, given that it was a whole contingency of factors, including immigrants, businesses, minorities, etc., we can say broadly speaking that it was the market that was in these cases subverting a corrupt moral order (because what else can we call a bunch of individuals negotiating for their own advantage with their social power but a "market?").

Thus, to end, it can be argued that the government promotes, in some cases, bigotry while the market undermines it. What I would say is that thinking that a government is always going to do the right thing in a given situation while a private individual will not is more utopian than libertarianism ever thought about being.

mjw8 | October 31, 2005, 4:52pm | #

The strip search case was not the monster the critics made it out to be. Read both the majority and dissenting opinions. While the result of a kid getting strip searched is deplorable, Alito's reasoning in the dissent is solid.

The search warrant form did not have enough space (physically on the paper) to include the target of the search AND anyone else on the premises. However, the probable cause section on the face of the warrant included the request to search anyone on the premises by explicitly incorporating that request from the application for the warrant by reference.

Moreover, the same officers prepared the warrant and the application. The Judge signed off on it without modifying or restricting it.

Now, the majority also takes a reasonable position by refusing to expand the scope of a warrant based only on a reference to the application for the warrant. Reasonable minds can differ whether or not that was done in this case. I think the majority used a strained, formalistic interpretation to do so, while Alito used a common-sense reading (which is what precedents call for in this line of cases).

As much as I would prefer a justice who seeks to reign in government power, Alito basically was following precedent on this one.

Thus, you should not listen to any pundit or senator's characterization of his opinions without reading them yourself.

SPD | October 31, 2005, 4:53pm | #

Stevo,

Thanks for the link. I read the article and it brought up a lot of things I never realized about the history of businesses and Jim Crow, which was on the opposite end of the pendulum from affirmative action.

I found this quote the most interesting:

People who decry the fact that businesses are in business "just to make money" seldom understand the implications of what they are saying. You make money by doing what other people want, not what you want.

The last sentence succinctly and beautifully addresses my skepticism about Wal-Mart's promises. If they follow through on what they promise, bravo for them and I'll give credit where it's due.

The first sentence in the quote above I found amusing, simply because of Milton Friedman's quote that the only responsibility a business has to society is to maximize its profits, and without the second sentence it would seem to contadict Friedman.

Larry A | October 31, 2005, 4:58pm | #

who would send the court "dangerously right" yada yada yada.

If I could draw a straight line I'd do a cartoon with Chicken Little standing in front of a Supreme Court building "moving dangerously right." From so far left that it was still approaching center.

Eric the .5b | October 31, 2005, 5:02pm | #

eric mattingly:
Now, my response to you is that, following the comments of Eric the .5b (which confuses the hell out of me by the way)

I'd be happy to clarify anything I said that you found confusing.

M1EK | October 31, 2005, 5:08pm | #

"Yes, some idiots did, and the market punished them. Others did not, because they feared the market's punishment."

You live in a great fantasy world. Allow me to suggest that if you were magically transported to, say, Birmingham, and in the process became black, you might abandon some of this theory in favor of practice.

The fact that the market provided _some_ opportunities to Southern blacks does not mean that their lives didn't suck major ass due to the lack of _most_ such opportunities.

fyodor | October 31, 2005, 5:09pm | #

Stevo and SPD,

I agree that's an interesting piece Stevo linked to, and Thomas Sowell is an interesting guy.

But the information cited by Sowell would not likely be enough to counter the images statists have about the behavior of businesses in the Jim Crow South. The two examples that come to mind are white-only restaurants and (most disturbingly) hospitals.

M1EK | October 31, 2005, 5:12pm | #

Oh, and Stevo, linking a story from the Washington Times is not the best way to disprove the theory about libertarians really being Republicans who want to smoke pot.

That story sucked -- the first words that came to mind upon reading it were "lunch counters". Do you know why? Does the Washington Times have a link that answers it?

Actually, come to think of it, that shitty piece of apologist trash DOES have something in common with some frequent 'libertarian' tactics here - a desperate attempt to force the square peg of history into the round peg ideology being pushed. In this case, the author started with the goal of claiming that big government causes racism - and had to ignore Woolworth's to do it.

Eric the .5b | October 31, 2005, 5:13pm | #

I'll just stand here and admire M1EK's vigor in dodging anything actually said so he can count coup on the libertarian-in-his-head.

Jason Ligon | October 31, 2005, 5:14pm | #

"The first sentence in the quote above I found amusing, simply because of Milton Friedman's quote that the only responsibility a business has to society is to maximize its profits, and without the second sentence it would seem to contadict Friedman."

Er, the point of that comment is that the second piece is inherent in the first, and many people don't realize that is the case.

Stevo Darkly | October 31, 2005, 5:14pm | #

The fact that the market provided _some_ opportunities to Southern blacks does not mean that their lives didn't suck major ass due to the lack of _most_ such opportunities.

Right, it certainly did suck, largely because the government screwed around with the liberalizing forces of the market.

You live in a great fantasy world.

Yes, you have no fucking idea. But we'll keep my sex life out of this.

Jason Ligon | October 31, 2005, 5:15pm | #

Big Government doesn't cause racism. Big government institutionalizes racism.

M1EK | October 31, 2005, 5:15pm | #

"Right, it certainly did suck, largely because the government screwed around with the liberalizing forces of the market."

Woolworth's.

M1EK | October 31, 2005, 5:16pm | #

I'll just sit here and wish this site had a killfile, so I could silence the annoying buzzing coming from Eric the .5b.

Eric the .5b | October 31, 2005, 5:18pm | #

M1EK's new mantra: Woolworth's.

Woolworth's would be the proof of the point people here have made - companies that wanted to discriminate benefited from laws that required their competitors to discriminate. Without those laws, they'd find that policy a liability.

Stevo Darkly | October 31, 2005, 5:19pm | #

Woolworth's is not the entire market.

Left to itself, I'm sure today the unbending executives of Woolworth's would be wealthy beyond dreams, catering exclusively to the wallets of Klansmen.

Speaking of the market, it truly does call to me now. Forgive me. But I leave you in capable hands.

Eric the .5b | October 31, 2005, 5:21pm | #

Well, M1EK, if you have an aversion to people disagreeing with your insults, vacuous claims - sorry, ideas, you could find a more sympathetic audience.

M1EK | October 31, 2005, 5:23pm | #

I see that Stevo's already been spanked on this very topic before:

http://www.reason.com/hitandrun/2005/08/hawaiiansonly_p.shtml

It's pretty damn easy for you to sit there and say that blacks should have waited for the market to solve the problem. Even if it would, eventually, are you going to wait decades? If your kid wasn't allowed to go to all instances of (business type X) in your town, would YOU tell them to wait, and that THEIR kids would probably be allowed in a few of them?

Hakluyt | October 31, 2005, 5:28pm | #

M1EK,

The fact that the market provided _some_ opportunities to Southern blacks does not mean that their lives didn't suck major ass due to the lack of _most_ such opportunities.

Which simply begs the question. Was the actual working of the market to blame for this sorry state (be it in Birmingham or Boston or Portland, Or.)? Or was it merely the case that through the trapping of government that those who could wield political power did so to the detriment of some groups?


Stevo Darkly,

...catering exclusively to the wallets of Klansmen.

Then they would have gone broke. Your average klansman (in the 1950s - compared to the 1920s) wasn't exactly wealthy.

Hakluyt | October 31, 2005, 5:30pm | #

M1EK,

It's pretty damn easy for you to sit there and say that blacks should have waited for the market to solve the problem.

No one has claimed that it would have. The problem was inherently a political/governmental because it was the government which enforced and enacted the various de jure segregation codes.

Hakluyt | October 31, 2005, 5:32pm | #

M1EK,

BTW, this is a primary example of government at work - de jure racial segregation enforced via violence and other acts of coercion. Heh.

fyodor | October 31, 2005, 5:33pm | #

Woolworth's would be the proof of the point people here have made - companies that wanted to discriminate benefited from laws that required their competitors to discriminate.

eric the .5b,

What laws required Woolworth's competitors to discriminate?

Hakluyt | October 31, 2005, 5:34pm | #

M1EK,

More to the point, markets can corrode such evils, as they did with the Montgomery Bus Boycott, but it takes actual political action to erase such laws from the books.

Hakluyt | October 31, 2005, 5:36pm | #

fyodor,

State laws primarily against "race mixing" and the like. Though most folks think of them as a Southern phenomenon, they were common throughout the U.S. prior to WWII.

SPD | October 31, 2005, 5:36pm | #

Hak,

The Jim Crow laws would have certainly allowed businesses owned by racists to use them as cover. "Hey, what can we do about it? The government told us we can't serve you here!"

Racists = alcoholics; U.S. government = enablers

Hakluyt | October 31, 2005, 5:38pm | #

fyodor,

Of course, more to the point, many of these laws reflected socio-cultural attitudes at the time, on both sides of the fence. Of course, its the enactment of such laws, which attack the liberty of the individual, which are libertarians are concerned with. M1EK the liberal goes off on a rant about markets, when he should be ranting about his perferred means to solve any problem - government.

Eric the .5b | October 31, 2005, 5:39pm | #

It's pretty damn easy for you to sit there and say that blacks should have waited for the market to solve the problem.

No, it's easy to point out that laws were the cause of the problem. But I guess you're going to stop your "I'll call myself a libertarian this week" business, so there's an upside to your ramblings.

D Anghelone | October 31, 2005, 5:40pm | #

If you're going to be a prick, at least get the spelling right.

I thought you'd...mellowed...a bit these last few years but I guess not.

Hakluyt | October 31, 2005, 5:41pm | #

SPD,

Sure. There were and are plenty of Lester Maddox's in this world, but they never made up a majority of people in the U.S. or even the Jim Crow South. This is evidenced by the fact that the KKK and other groups had as part of their agenda strenuous efforts to enforce Jim Crow segregation and attacked white shop owners, etc. and the like who violated them. Kicking the crap out of the odd shop owner in the 1920s kept the rest in line.

Hakluyt | October 31, 2005, 5:45pm | #

If anyone thinks that free markets, etc. caused segregation in the U.S., then they are simply unaware of the strenuous efforts of redeemer state governments to put a legal dike up against the expanding fortunes of freedmen in the U.S. in 1860s-1880s. I'd give M1EK a mini-bibliography on the matter but I doubt he'd read it.

SPD | October 31, 2005, 5:46pm | #

eric m,

".5 B" references the old Monty Python tune "Eric the Half-A-Bee," which was John Cleese's ode to his... um, slightly incomplete pet.

James Feldman | October 31, 2005, 5:46pm | #

I think that the area which deserves actual focus is in what aspects will certain doctrine be applied.

I would favor a libertarian society; I think most people who read Reason would. The great grey area for me, at least, is what is the result if we have laws that are libertarian in nature regarding, say, employment practices, while at the same time having laws that are progressive, or socially conservative, regarding say, church/state issues? That is a question that needs answering, I feel.

To my mind, the flaw in arguments such as Julian's regarding the rights of Mariott or other corporations to discriminate if they so choose, is that the Federal, State, and Local governments cannot discriminate, and then we have a significant legal quagmire. Can public funds be spent on services from companies that discriminate, when the Government itself is forbidden to do so? What serves the public interest better if the choice is between goods or services from a company that discriminates but would charge less, or a company with equal opportunity that charges more?

Finally, while I agree that ideally, a company that discriminates would be punished in the market, the truth is that today, such information is easy to conceal from the public. Many companies own media companies as well; News Corp or GE can easily affect the coverage their companies get. But beyond that, 25% of television is advertising, and more than that in print media. Wal Mart can do a much more effective job of getting their message out than their critics. For example, few people that I know are aware that Wal Mart is the defendent in the largest gender-discrimination class action suit in history. While I am not desirous of government regulation, I fail to see how any other model of restraint on practices such as discrimination can be effective in the modern environment.

SD | October 31, 2005, 5:52pm | #

SOME examples of laws -- restaurants, lunch counters, hospitals.

Here.

Eric the .5b | October 31, 2005, 5:52pm | #

Ooops, the way I said that made me look like an undergraduate jackass. I was trying to rib you a little on your name (the whole .5 B thing is cool, I just don't know what it means) while appropriating your entire argument into mine. See, I was just trying to cover my disingenuity with humor, and yet again failed.

Nah, you're cool. I thought it might possibly be that, but was too slack to just throw in an "or if you just mean my name, it's a reference to 'Eric the Half-a-Bee' by the Monty Python boys". And, well, honest enough to know I'm not an infallible communicator, so I could have said something as clear as mud. :)

SPD | October 31, 2005, 5:53pm | #

James,

Re: the class-action suit - I am very much in favor of wrongs being addressed in court, and Wal-Mart or any other corporation that is proven to discriminate, pollute, hide the dangerous effects of its products deserves to have the collective asses nailed to the wall.

When the federal government gets involved on either side, whether through laws like Jim Crow or affirmative action or tort reform, the so-called reforms they attempt to implement can often have a less-than-desired effect and can often backfire, IMHO.

crimethink | October 31, 2005, 5:56pm | #

M1EK,

Would a black person rather live in the segregated South, or, say, Western Europe?

In both of those situations, the govt interferes with the market vis-a-vis discrimination, though in opposite ways, so it hardly proves that govt interference is necessary. Also, from what I've heard, having the wrong skin color in W Europe ain't so easy either.

M1EK | October 31, 2005, 5:56pm | #

"When the federal government gets involved on either side, whether through laws like Jim Crow or affirmative action or tort reform, the so-called reforms they attempt to implement can often have a less-than-desired effect and can often backfire, IMHO."

This position, if extended, leads to anarchy - why, in other words, can we trust the federal government to get involved with laws against murder? Surely the free market would solve this problem better than the incompetent statists!

fyodor | October 31, 2005, 5:57pm | #

M1EK,

So much has changed throughout the entire world since the days of Jim Crow that your comparison between the southern US of decades ago and the Western Europe of today is hardly cogent. How about comparing the southern US of the first half of this century with many parts of Western Europe at the same time?

SPD | October 31, 2005, 5:57pm | #

So don't extend the position.

Knemon | October 31, 2005, 5:58pm | #

"the author started with the goal of claiming that big government causes racism"

Woodrow Wilson.
FDR.
Truman.
LBJ.

They loved them some big government.

They were also all heinous, heinous racists. (Truman a little less so. A little. Wilson, of course, was the absolute worst of the bunch with the possible exception of Jackson. Anyone calling themselves a liberal who doesn't know that, should).

A switch from Jim Crow to big-government paternalism: out of the frying pan, into the trash.

M1EK | October 31, 2005, 5:59pm | #

"How about comparing the southern US of the first half of this century with many parts of Western Europe at the same time?"

That's actually what I meant to do, although I wasn't clear enough.

M1EK | October 31, 2005, 6:01pm | #

"So don't extend the position."

Then you have to abandon the idea that statism == always bad.

To me, statism in the form of the Feds forcing integration on the South == unquestionably good.

To you guys, they should have waited a few more decades for the market to solve the problem. Easy to say when you're white, I suppose. Or when, like the smug jackass I mentioned in the very first post, you live in an era where your particular minority group isn't discriminated against (much).

James Feldman | October 31, 2005, 6:02pm | #

Okay, we're coming in on three to four sides of this issue.

M1EK: You're deliberately missing the point. There is, and must be, a distinction between laws with absolute purpose, such as murder, and laws designed as social engineering, such as Jim Crow or affirmative action. Laws against murder make murder illegal; the results of Jim Crow, for example, are not so simple.

SPD: You and I likely agree, but my impression is that Julian doesn't. If it is the law that corporations cannot discriminate in hiring practices, then Julian's example of a company choosing not to hire anyone named Sanchez is illegal. If corporations can discriminate against people named Sanchez, then the class-action against Wal Mart would be invalid. I suppose the question is what is the line between regulation and social engineering?

M1EK | October 31, 2005, 6:03pm | #

"They were also all heinous, heinous racists. (Truman a little less so. A little. Wilson, of course, was the absolute worst of the bunch with the possible exception of Jackson. Anyone calling themselves a liberal who doesn't know that, should)."

They were men of their times, and in most cases LESS racist than the alternative.

"A switch from Jim Crow to big-government paternalism: out of the frying pan, into the trash."

Bullshit.

A black kid in 1920 had essentially no shot at an education in vast swaths of the South. Whatever else the Great Society fucked up, it at least made sure that those who WANTED to make something of themselves COULD.

SPD | October 31, 2005, 6:03pm | #

Which country's government banned the use of religious head coverings for Muslims: France, which I believe is somewhere in Western Europe, or the U.S.? Was that in 1904 or 2004?

I'm pretty gulags and concentration camps were state-designed, too. And somewhat European in nature.

Apartheid? State-designed.
The Chinese Cultural Revolution? State-initiated.
Russian pogroms of Jews? State-initiated.
Anti-immigration laws? State-initiated.

Can't blame the free market for any of that.

Hakluyt | October 31, 2005, 6:03pm | #

M1EK,

Would a black person rather live in the segregated South, or, say, Western Europe?

Western Europe when? Today? There are more oppurtunities and less discrimination in the U.S. for people of color than there are in France. Visit a banlieu sometime. Oh wait, you are a liberal. I forgot that you morons had all these myths about Europe that we've yet to deflate. Western Europe isn't paradise for people of color and never has been. I mean my fucking goodness, the French forced (via a version of near-slavery called conscription) hundreds of thousands of black people - from Africa - to fight in WWI in the Western Front for them. These people didn't even have a pretense of voting. Indeed, the French government denied them the vote right up to the time they were either independent or on in the case of Algeria, the pied noirs were given an oppurtunity to cut and run.

Knemon | October 31, 2005, 6:04pm | #

"statism in the form of the Feds forcing integration on the South == unquestionably good."

Good. In a qualified sense. Caesar crossing the Rubicon was also good. In a qualified sense.

Nothing is unquestionably good - not even the slow and steady stroking of The Invisible Hand.

MikeP | October 31, 2005, 6:05pm | #

why, in other words, can we trust the federal government to get involved with laws against murder?

Umm. We can't. That's a state government power* under the Constitution**.

* ...to get back to the discussion of a Supreme Court nominee and his federalist tendencies.

** Except, of course, when the federal government needs to enforce the 14th Amendment against lame local governments.

fyodor | October 31, 2005, 6:05pm | #

This position, if extended, leads to anarchy

You say that like it's a bad thing! :-)

The way out of your paradox is to ask when does it make sense for the government to be involved? And the answer is when rights, strictly defined, have already been violated, because that's when things have already gotten as bad as they can get, so there's little room for government to screw it up worse, as much as it might often try!

Hakluyt | October 31, 2005, 6:05pm | #

M1EK,

Its an easy comparison - both were shitty places for your average person of color to live in. Now, Paris was an awesome place for "The Bird" and others to go, but they were famous blacks.

M1EK | October 31, 2005, 6:05pm | #

"M1EK: You're deliberately missing the point. There is, and must be, a distinction between laws with absolute purpose, such as murder, and laws designed as social engineering, such as Jim Crow or affirmative action. Laws against murder make murder illegal; the results of Jim Crow, for example, are not so simple."

"deliberately missing the point" == "liar", right? Checking my scorecard. I'm the only one who gets dinged for this particular infraction, so you're scot-free.

Affirmative action is complex, but how were the results of Jim Crow not simple? (other than issues over the definition of "black")?

fyodor | October 31, 2005, 6:08pm | #

A black kid in 1920 had essentially no shot at an education in vast swaths of the South.

And who controlled education?

Knemon | October 31, 2005, 6:09pm | #

"in most cases LESS racist than the alternative."

Horseshit. Than Wilkie? Than TR?

Dude, "Birth of a Nation" starts with a Wilson quote. Right up on the screen. Yikes.

You simply don't know what you're talking about.

Goldwater you can argue because of his anti-Civil Rights Act stance (which he later modified in an "I guess the ends do justify the means after all" way).

But on a personal level, in conversation, in friendships, in his beliefs - you know, the heart of a man as a husband and a father, which John Roberts cruelly keeps hidden - LBJ could out-racist Goldwater any day of the year.

Truman I will give a little more credit - he was more a Hank Hill scared-of-other-people type, and less a genuine deep-imbued racist. But Wilson in particular was *whack*. Some of the worst traits of turn of the century Progressivism coming together - chief among which was a bleak, "scientific" racism. (See also Sanger, Margaret).

Phil | October 31, 2005, 6:10pm | #

So, it's easy to point out that laws were the cause of the problem.

Well, no -- racists were the cause of the problem; laws were the tools they used to hurt people. Or do you suppose that a bunch of otherwise well-meaning white people passed the Jim Crow laws on a fucking whim?

Hakluyt | October 31, 2005, 6:10pm | #

M1EK,

What exactly do you know about Europe in the 1st half of the 20th century? Did you realize that Langston Hughes experience was fairly unique?

M1EK | October 31, 2005, 6:11pm | #

Knemon,

Yes, I'll give you Wilson. But FDR wasn't in that league, and LBJ hated _everybody_.

Hakluyt | October 31, 2005, 6:11pm | #

Phil,

Suffice it to say that M1EK is very confused. :)

M1EK | October 31, 2005, 6:12pm | #

fyodor,

Oddly enough, the market failed to provide black kids in the South with a decent education. Amazingly, the market fails to satsify the desires of customers who essentially have no money.

But I'm sure if we had just let them rot, that by now, the market would have solved the problem. And the multiple generations who suffered would gaze down on us with admiration from Heaven as their great-great-grandkids finally become sorta equal. After all, statism would have been worse!

J. Goard | October 31, 2005, 6:13pm | #

Hey, deontologists, armchair libertarians, answer this thought experiment:

Suppose 99.9% of the population hates Max. Don't ask me why. It's a consumer preference, like how most people love pizza and hate living next to slaughterhouses. There are exceptions, but not many; Max is just the anti-pizza to almost everybody.

People believe lots of things about Max, too, including lots and lots of false things. Books are published with poorly reasoned arguments to the effect that Max is a different species from the rest of us, perhaps (wink, wink) even closer to a baboon than to a man. Hey, people have a right to buy these books, and they don't come close to meeting the legal definition of libel. Also, people put on plays where they dress up like Max, and act like buffoons or villains. Lots of other people come to these plays and are highly entertained, such being their subjective consumer preferences.

Such is the hatred of Max, that the 99.9% who hate him also hate hanging around with anyone who doesn't hate him. If, at a party, you fail to laugh heartily at a crude anti-Max joke, word spreads, and you lose 99.9% of your business contacts, and 99.9% of your social circle.

Okay, so what about the economics? What are the 99.9% losing by hating Max? The business of Max himself? Obviously a drop in the bucket. The business of the 0.1%? Maybe -- but recall, I havent stipulated that that sliver of the population *loves* Max, or has any particular desire to see him better off than not. They wouldn't have much reason to give up their share of the 99.9% just for the business of Max, so, for all intents and purposes, they may as well be with the majority. And the majority gains much from hating Max -- entertainment, and a nice warm feeling of natural superiority. On net, aggregate preferences are simply such that Max is screwed.

Now, please explain to me how, a priori, you can tell me that Blax could never have been partly Max -- or, more precisely, that the Max dynamic could have been an important part of the Blax dynamic, even apart from state-enforced segregation and Klan-style terrorism.

Phil | October 31, 2005, 6:16pm | #

Suffice it to say that M1EK is very confused. :)

I wasn't quoting M1EK. Learn to read.

James Feldman | October 31, 2005, 6:16pm | #

I'd prefer to say that I think you are choosing to not recognize the distiction for the sake of the argument, even though you know the difference to be true.

Well, not to write an essay about it, but I'd say that the purpose of Jim Crow laws were to maintain American blacks as a permanent underclass, and to maintain the Southern white stranglehold on political and economic power. I would say that they did not achieve those goals, although they have a myriad of repercussions seen to this day. So while the purpose of Jim Crow can be easily explained, the effect cannot. The same is true for affirmative action; clear goals, murky outcomes. However, laws outlawing murder do not have effects that are far removed from their purpose: to create incentives to not commit murder, and to punish those who do.

Eric the .5b | October 31, 2005, 6:18pm | #

Would a black person rather live in the segregated South, or, say, Western Europe?

When? How about the 1930s and 40s?

Eric the .5b | October 31, 2005, 6:23pm | #

Well, no -- racists were the cause of the problem; laws were the tools they used to hurt people. Or do you suppose that a bunch of otherwise well-meaning white people passed the Jim Crow laws on a fucking whim?

No more so than any well-meaning white businessmen decided to discriminate against blacks on a whim. But now that we've made a nod towards shrill pedantry, let's carry on.

MikeP | October 31, 2005, 6:23pm | #

Suppose 99.9% of the population hates Max.

Then, surely, if they thought it was a legitimate power of the state to regulate freedom of contract and association, it would be against the law to associate with Max.

Incidentally, you do realize that there are more than 6 billion people in the world whom it is illegal to employ in the United States. That massive discrimination is not the doing of the free market.

Eric the .5b | October 31, 2005, 6:31pm | #

Now, please explain to me how, a priori, you can tell me that Blax could never have been partly Max -- or, more precisely, that the Max dynamic could have been an important part of the Blax dynamic, even apart from state-enforced segregation and Klan-style terrorism.

Why should anyone have to? If your question is "does shunning someone because you don't like them have the same motivation as oppressing someone because you don't like them", it's rather unilluminating.

fyodor | October 31, 2005, 6:35pm | #

Amazingly, the market fails to satsify the desires of customers who essentially have no money.

Moving target alert. Financial accessibility is a whole other issue from whether free markets are likely to discriminate in lieu of governmental discrimination.

Eric the .5b | October 31, 2005, 6:36pm | #

Truman I will give a little more credit - he was more a Hank Hill scared-of-other-people type, and less a genuine deep-imbued racist.

Truman supported some quixotic civil rights bills while he was a senator and integrated the armed forces while he was president. I think he deserves a hell of a lot of credit.

Fledermaus | October 31, 2005, 6:44pm | #

Look, the state's arguement in Doe is that because the affidavidt asked to strip search the wife and child they should be allowed to do it. Warrants must specify who or what is to be searched and nowhere did the actual warrant authorize the search, running out of space is no excuse.

So here we are libertarians are saying that it's OK for cops to search whoever they want as long as they ask first, regardless of whether they get permission or not. If only libertarians were as protective of individual rights as they are of corporate rights.

Stevo Darkly | October 31, 2005, 7:10pm | #

BTW, I cannot let this pass:

I see that Stevo's already been spanked on this very topic before:

http://www.reason.com/hitandrun/2005/08/hawaiiansonly_p.shtml

After re-reading the thread you cite, I can only conclude that you must define "been spanked" as "struck repeatedly on the palm of the hand with someone's else's ass."

PS: Just in case anybody missed this earlier:

A very small sampling of Jim Crow laws requiring private