Tag Archives: Jim Crow Laws

The Push for Extreme Suffrage

29 Friday Mar 2019

Posted by in Voting Rights

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People aren’t required to know anything about issues or candidates to vote. While that might create challenges to the rationality of electoral outcomes, in the U.S. we’ve at least agreed that competent adults holding citizenship should have the opportunity to vote (with state-by-state exceptions for felons). Thus, over time, the nation has gravitated toward fairly broad suffrage rights, despite setbacks along the way created by Jim Crow laws in the South. Today, the voting rights debate centers around screening issues like voter identification laws, whether to allow undocumented immigrants to vote, and the voting age. The Left tends to oppose voter screening of almost any kind, prompting allegations that their motives are less than pure, and similar allegations are leveled at the Right for its resistance to expanded suffrage. What, then, are the merits of some of these screening mechanisms?

Require Identification?

There are at least two sources of opposition to voter ID laws. One is a Libertarian argument: the very idea of government-issued IDs is anathema to some privacy rights activists. I sympathize with this view, but I’ve always been troubled by the resistance it represents to the establishment and maintenance of trust in a modern society. It might or might not be any consolation that these laws would almost certainly be administered at the state or local level. It’s also not clear that voter ID laws would lead to an increment in the various forms of government-issued identification. On its face, these laws would simply require the voter to produce a valid ID at their polling place confirming that they do, in fact, appear on the roll of registered voters, and that they are not attempting to vote under a fraudulent identity or acting as someone’s stooge.

The second and more common objection to voter ID laws comes from the Left: almost any limit on voting rights can and will be construed as unfairly exclusionary. The argument usually relies on the existence of a disparate impact of the kind described in civil rights legislation. Voter ID laws do not overtly discriminate against minorities, but they are said to place a burden on the disadvantaged and therefore on racial minorities. Presumably, it is considered too burdensome to obtain, carry, or be asked to present some form of identification, even one issued free-of-charge by the government. There is evidence, however, that voter ID laws do not suppress minority voting. And let’s be blunt: individuals excluded by this so-called burden are self-excluded, they are unlikely to be well-informed voters, and they might be vulnerable to opportunists who would pay for their vote. But instead, the public is asked to accept the proposition that obtaining an ID is just too difficult for some people, and to accept the risk that those arriving to vote on election day might not be registered, might have voted already, and might not be the persons they purport to be. These things happen. (Also see here and here.)

Reduce the Voting Age?

It’s impossible to define a measurable threshold above which people can be trusted to cast well-considered votes. Recently, there have been calls from the Left to reduce the voting age to 16 from 18 years. Then why not 14? Or even 12? Well, they’d say, because 12 or even 14 year-olds are not sufficiently mature.

So we all agree that a line must be drawn somewhere. Voting rights were extended to those aged 18-20 in 1971 in response to charges that it was unfair to deny the right to vote to young adults who were eligible for conscription to fight in Vietnam. The age-18 threshold aligns with the legal age of majority in most states. We know that the vast bulk of teenagers of 16 or 17 years are not well-prepared to fight in foreign wars, or to fend for themselves in the world for that matter. Right or wrong, at 18 you can volunteer for military service, get married, you are legally eligible as a sex partner, you can buy alcohol in many states, and you no longer qualify for child support.

Most adults would agree that there are substantial differences in the maturity of 16 and 18 year-olds. The latter are better-educated and will tend to have many times the job experience of 16 year-olds (which is often zero). Will 16 year-old children have a sufficient grasp of the issues they will confront in the voting booth? Most of these kids are still essentially hungry mouths, and it is unlikely that they can make well-informed judgements about the costs of pleasant-sounding public benefits versus the attendant costs. Some will vote exactly the way their parents and teachers tell them, but that sort of vote replication is hardly the desired outcome.

One can also view the voting-age debate through the lens of disparate impact: minority populations tend to have younger demographic profiles with more children per household. Therefore, keeping children out of the voting booth could have a larger impact on votes cast by minorities. But this effect is incidental to the choice of any line one might draw. It does not provide an adequate rationale for giving weight to the preferences held by a class of children.

Suffrage for Illegals?

Another proposal offered by the Left is to allow illegal immigrants to vote. It goes without saying that along with illegals, other resident aliens would get to vote. They are all subject to public policy, so the argument goes, and many of them actually pay taxes. Yes, well, many of them draw on public benefits as well. The statist bet is that suffrage for illegals will undergird support for expansion of the welfare state. That’s bad enough, but the risks are not limited to a fiscal imbalance between taxes paid and public aid. More important is to avoid policies that create rewards and incentives for additional illegal entry. Suffrage for illegals would heighten those incentives. It would also devalue U.S. citizenship and reward those who have already entered illegally, many of whom have little knowledge of our system of government

Conclusions

Eligibility to vote should not be a matter of political gamesmanship. Voter ID laws serve to thwart efforts intended to subvert democratic outcomes, which are common enough to be of concern. And voting is a privilege that should be reserved for citizens, not offered to mere visitors or anyone who has disregarded U.S. sovereignty by entering the country illegally, possibly seeking economic rents from our generous public aid programs.

Voter eligibility should also relate to the individual’s ability to evaluate public policy choices based on some degree of experience and knowledge of the world. As a rule of thumb, high school sophomores and juniors fail that test. If you think “the children are leading the conversation”, then you’re probably having the wrong conversation. But no matter what voting age we choose, there will always be voters having a tenuous grasp of issues. Fortunately, most of those lacking relevant knowledge of ballot issues tend not to care and choose not to vote. They are free to vote should they develop an interest, and so much the better. 

 

A Healthy Fetish For Federalism

18 Monday Apr 2016

Posted by in Federalism

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When I say I’m a federalist, I mean that I support a system in which powers are divided between different levels of government. Federalism establishes co-sovereignty between a central government and regional governments. It does not mean that the federal government is always dominant as is sometimes suggested: the Supremacy Clause under Article VI of the U.S. Constitution covers conflicts of law between the federal government and lower levels of government. Elsewhere, however, the Constitution places strict limits on the powers of the central government by defining an enumerated set of federal powers. All other powers reside with the people or their state governments, ideally constitutional republics in their own right.

Federalism is thought to minimize conflict within a nation by allowing law to be formulated differently within sub-jurisdictions. In this way, it has a limited ability to accommodate different political and social preferences, and it creates a de facto laboratory within which experiments in governance can be assessed. Whether one approves of a particular experiment always depends upon the nature of the question, and experiments imposing limits on individual rights are unconstitutional. Individual rights established by the Constitution are thought to be inviolable and to supersede any federal or state legislation. We should all be absolutists about that. A federalist approach can also be a practical starting point in bringing about broader social recognition of new claims under the Constitution. There are many interesting cases, however, in which legitimate constitutional rights of different parties stand in conflict.

The federalist idea of a social laboratory across jurisdictions is very appealing. When a conflict over legal and social issues seems intractable, federalism makes it possible to see how well different approaches solve the problem. There may be a variety of interesting solutions or political compromises that can be brought to bear, and it can be easier to reach an accord at the state level. Diversity of circumstances and preferences may mean that a good solution in one state will be bad in another. So different states can try different arrangements under federalism. The results of these experiments can guide other states or even federal legislation, if it comes to that. Voters in each state have the power to reward or punish elected representatives, based on these experiments or their outcomes, or to “vote with their feet” by moving to a state that better matches their political preferences.

Today, the country is experiencing an epidemic of grievances on which there is little consensus. These cover issues related to gender identity, gay rights, polyandry, sexual consent, voting rights, due process claims, race and law enforcement, food labeling, drug legalization, censorship, assisted suicide, “micro-aggressions”, and any number of other causes célèbres. These issues may involve novel private or social arrangements, or they may necessitate a weighing of the asserted rights of an aggrieved individual or group against established rights of others protected by the Constitution. It may well be that the asserted rights of the aggrieved have a proper place in the Constitution, and if so, there might be a compelling case for protection relative to other claims. Federalism is one way this can be hashed out: a state legislates, pro or con; the legislation may be challenged in court; the courts rule whether the law is constitutional at the state level or even at the federal level. And the process may start in any number of states.

I have appealed to federalism on several issues in the past. When the rights of different parties stand in conflict, attempting to weigh different sides of an issue based on libertarian and constitutional principles does not always lead to clear-cut answers. However, laws work best when there is consensus among the governed. Political consensus may be more readily achieved at sub-national levels. That doesn’t necessarily protect the people of any state against big government solutions, high taxes or cronyism. However, at least dissenters within a state can register their dissatisfaction at the ballot box, agitate, attempt to persuade others, challenge in court, or move away.

Both left and right take absolutist views on many issues. They often find it difficult to tolerate variances à la federalism. For example, should a legitimate transgender individual be allowed to use the restroom compatible with their gender identity? The left regards that as an inviolable right, regardless of genitalia and potential threats to privacy. If you disagree, they may call you a bigot! Some on the right, however, regard transgenderism as perverse and not worthy of constitutional protection. Both are absolutist positions. There are, in fact, legitimate reasons for taking either side in the restroom debate, as I attempted to outline here last week. Under such circumstances, federalism respects the political balance within any jurisdiction and allows a way forward, short of resorting to federal legislation, which might well be impossible to achieve.

Federalism is usually associated with strong “states rights”, which are sometimes criticized on historical grounds because slavery was often characterized as a “states rights” issue. The horrific treatment of blacks under slavery was obviously based on an arbitrary distinction that should never have been tolerated under our Constitution; ownership of human chattel should never have been defended as a “right”, but it took a civil war and the Thirteenth Amendment to end it officially. The discrimination mandated under Jim Crow laws was based on the same arbitrary distinction, but it took another 100 years after the Civil War to end those laws through enactment of the Civil Rights Act. I grant that federal action was necessary in both cases. However, few of the challenges we face today are based on such arbitrary distinctions. Rather, they often involve constitutional ambiguity and legitimate concerns over protected rights. So let the experiments, the evolution of opinion and the court challenges play out. That is the essence of federalism. It helps us to muddle on through.

Coerced Fairness: Wronging Every Right

14 Thursday Apr 2016

Posted by in Discrimination, Liberty, Tyranny

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A nurse says, “If I can bring myself to treat a patient tattooed with a swastika, then a baker can bake a cake for a gay wedding.” Of course, the statement ignores any differences in the values held by these individuals, their right to hold different values, or at least their right to act peacefully on those values. It makes an arbitrary presumption about what is “fair” and what is “unfair”, which is seldom well-defined when two parties hold sincere but conflicting beliefs. Yes, the baker can bake the cake, but should he be forced to do so under state compulsion? Coerced behavior is the product of aggression, but declining business for personal reasons is not an act of aggression, though the “safe-space” crowd would do its best to convince us otherwise. Sorry, hurt feelings don’t count!

Imposing the machinery of the state on private decisions about how and for whom one’s art must be practiced invites even more coercive action by the state going forward. Jeffrey Tucker addresses this in “Must a Jewish Baker Make a Nazi Cake?“, using the teachings of Ludwig von Mises on the implications of voluntary and coerced behavior.

Discrimination occurs in markets in many forms. Consumers discriminate between sellers and products based on quality, price, convenience and trust. In turn,  producers or sellers discriminate between workers based on skill, effort, wages and trust. They discriminate between local markets or areas of specialization based on profitability. They discriminate between buyers based upon ability and willingness to pay. All of these forms of discrimination are rational because they result in better value for the discriminating consumer or better profitability for the discriminating producer. In other words, these forms of discrimination align with economic self-interest.

Other forms of discrimination do not align strictly with economic self-interest, but they may be preferred by the individual based on other criteria. It’s probably not possible to justify these forms of discrimination from all perspectives. Some may be abhorrent to most observers, including me. Certainly more consensus exists on some than on others. Nevertheless, these non-economically motivated forms of discrimination are always costly to the discriminator. For example, a consumer who refuses to frequent certain establishments owned by members of an out-group will forego opportunities for more varied experiences. Also, she will tend to pay higher prices due to her lack of interest in the competitive effort made by the out-group. An employer who refuses to hire certain minorities faces a more limited labor pool. He is likely to face a higher wage bill and will get a less efficient mix of skills in his workers. A seller who discriminates against certain groups by turning them away foregoes revenue, and the action may have negative reputational consequences. Obviously, other competitors can profit from another seller’s discriminatory behavior. Almost by definition, markets impose penalties on discrimination not borne out of economic self-interest.

Anyone with doubts about the effectiveness of markets and capitalism to overcome this latter type of discrimination should look no further than the broadly integrated activity that occurs within markets every day, and at the extent to which markets have become more diverse over time. Here is a choice quote of Tucker:

“Commerce has a tendency to break down barriers, not create them. In fact, this is why Jim Crow laws came into existence, to interrupt the integrationist tendencies of the marketplace. Here is the hidden history of a range of government interventions, from zoning to labor laws to even the welfare state itself. The ruling class has always resented and resisted the market’s tendency to break down entrenched status and gradually erode tribal bias.

Indeed, commerce is the greatest fighter against bigotry and hate that humankind has ever seen. And it is precisely for this reason that a movement rooted in hate must necessarily turn to politics to get its way.“

The hypertext within the quote links to an excellent piece by Andrew Berstein on “Black Innovators and Entrepreneurs Under Capitalism”, which covers the sad history of efforts to use government to undermine black commercial success.

Social justice activists argue that the state has a compelling interest in ending all discrimination, but the courts have followed a circuitous path in thrashing out whether (and what parts of) the U.S. Constitution might protect individuals or groups against private discrimination. But my interest is in what happens when the state endeavors to end discrimination in markets that are otherwise self-regulating: the state infringes on other rights that are clearly and definitively enshrined in the Constitution, and it arrigates power to itself that far exceeds the limits defined there. It may compromise the freedom of association, the freedom of religion, the right to private property, and the right to privacy. I believe the government has a compelling interest in protecting those rights, which apply to all individuals. It is also worth noting the absence of a limiting principle in defining what counts as fairness or discrimination. The Left finds it easy to denigrate and dismiss these as selfish concerns, proving how little regard they have for individual liberty. Establishing government control over the extent of those rights represents the end of our Constitutional Republic and is a prescription for tyranny.

Consider the ways in which government often attempts or is asked to create accommodations for marginalized groups, through laws on hate speech, compulsory service, hiring quotas, admission quotas, lending fairness, pricing equity, wage laws, work rules, mandatory facilities and the forced transfer of income. Tucker argues that this complex web of resource manipulation and mandatory and proscribed behaviors has several “unintended” consequences. I already mentioned the obvious abridgment of freedoms. Another negative consequence is that this approach does not promote unity; it breeds resentment and is likely to end in greater disunity. Furthermore, self-sufficiency is undermined by policies that hamper economic growth, and all of the general measures just mentioned redound to the detriment of that objective. Finally, many of these “fairness” policies run directly counter to the interests of the marginalized, such as wage floors that eliminate employment opportunities for the least-skilled, and means testing that discourages labor market effort through income “cliff” incentives.

The most menacing aspect of the effort to stamp out all forms of discrimination is a state with power to impose its own rules of legal “fair” treatment. Tucker appeals to Mises’ views on this point:

“[Mises] said that a policy that forces people against their will creates the very conditions that lead to legal discrimination. In his view, even speaking as someone victimized by invidious discrimination, it is better to retain freedom than build a bureaucracy that overrides human choice. …

Sacrificing principle for the sake of marginalized groups is short-sighted. If you accept the infringement of human rights as an acceptable political weapon, that weapon will eventually be turned on the very people you want to help. As Dan Sanchez has written, ‘Authoritarian restriction is a game much better suited for the mighty than for the marginalized.’“

Proponents of legal, compensatory  handicapping by the state in favor of those pressing any and all grievances ask us to compromise basic constitutional rights, including the rights of association, free expression, privacy and private property. A corresponding effect is to grant the state more complete coercive power in almost every aspect of life. The unavoidable focus of such policies is not unity, but group identity, a divisive result that should give us pause. The power granted to the state in this context is as arbitrary as the currently fashionable definition of “fairness”, and it cannot be rolled back easily. Furthermore, economic vitality is not easy to restore once basic institutions and freedoms have been destroyed. This is evident from the sad history of socialism throughout the world. Ultimately, the coercive power granted to the state can be used in ways that should horrify today’s proponents of social and economic redress for every real or imagined inequity.

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Addendum: Just over a year ago, I made a qualified defense of the right of a business to refuse service based on religious principles in my post “Suit Me, Or Face a Lawsuit: Adventures In Litigationland“. There, I made a distinction between “public accommodations” versus work for which a business-person must use her art, which is a form of expression, to provide customized service to a potential customer. I had the baker in mind, or the photographer asked to work a gay wedding. As I have in this post, I maintained that if a business-person finds some aspect of a request objectionable for any reason, she has the right to discriminate by refusing the business as a matter of freedom of expression.

I left a huge loose end in the argument I made in the earlier post. It had to do with the presumed requirement to serve all potential customers through the “public accommodations” of a private business. However, if the baker creates a beautiful “love cake” for sale to the general public, why can’t he refuse to sell it to a gay couple for their wedding as a matter of freedom of expression? After all, it involves the baker’s art. If a stationer has created an artful collection of cards for sale to the public, why can’t she refuse to sell them to a gay couple for their wedding invitations on account of her religious convictions? And what about the nurse? If he is in private practice, can’t he refuse to practice his art of healing on the “swastikaner” as a matter of free expression? I believe that’s a constitutional absolute, though professional oaths may dictate that care be delivered. An emergency room nurse would not have any choice but to deliver care under federal law, but it is not clear whether the law would withstand a constitutional challenge by a private hospital on these grounds. As things stand, the nurse can only refuse employment or resign if the rules are not to his liking.

 

 

Leftist Ad Hominid Species Screams “White Racists!”

03 Wednesday Feb 2016

Posted by in Discrimination, Equality, racism

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Lately I hear that all white people are racists, and I feel compelled to examine the intellectual grounding of such an inflamatory claim. Consciousness of race is not racism, as some would suggest. Indeed, solutions to racial division offered by activists usually require that we bear race in mind as a primary differentiator. Insofar as one must consider the worth of another person in any context, people of good faith simply do not care about a person’s race. Rather, they care about traits that count, such as honesty, skills, work ethic and perhaps affability. Should they somehow care more? What would vindicate them?

Inflammatory Claims

There are probably several motives for the charge of universal white racism. On one level, it represents political agitation. Posts carrying the charge on social media always involve a measure of “virtue signaling” to like-minded friends, or perhaps before the Gods. (I’m sure the posters will be forgiven.) Such posts might represent acts of social contrition to allay deep-seated feelings of guilt. The posters might fancy that they are raising the consciousness of others, proudly imagining the important lesson they are teaching. The bad news for them is that most people of good faith are rightly skeptical of proselytization like this. In fact, the agitation probably does more to breed skepticism than anything else.

Voluntary Sorting Behavior

What some view as racial division is often an innocent consequence of voluntary sorting based upon the shared subcultures most compelling to individuals at a given time. There are many subcultures into which a person might fit: work, school, profession, sports, music, religion, politics, hobbies, geography, ancestry, ethnicity and race. And there are micro-cultures within all of these categories. These cultural segments differ in many respects, and they may overlap in many cases. The extent of sub-cultural overlap may be viewed as a gauge of assimilation.

In any given context, people tend to voluntarily sort themselves into the sub-culture they find most compelling. This voluntary sorting does not yield a fixed social distribution of individuals across groups. Individuals can choose to associate with different sub-cultures to which they belong on a day-to-day basis.

There is a pronounced tendency for sorting to occur within larger “populations”, such as cafeteria-goers in a large office or in a large school. People from particular work groups might sit together: there is some sorting by age, by gender, and by race. African-Americans often sit together. There is mixing of members of these subgroups as well. People are brought together by work or school, but the shared work or school culture is frequently less compelling to individuals in their choice of a lunch table than other sub-cultures to which they belong.

Isolation or Assimilation

Assimilation does not mean that cultural differences must disappear, but it does mean that subcultures must at least be tolerant of others. A key question is whether one subgroup would welcome a member of another subgroup to join them. There might be reasons to refuse in some circumstances, such as a group of accountants who wish to avoid economists. Lol. However, a group of Caucasians who prefer to remain exclusive, making African Americans feel unwelcome, are guilty of racism, and vice-versa. As for the converse, an African American individual who prefers not to join a group of Caucasians, and vice versa, there is usually a good rationale for presuming the individual to be innocent of racism: they are simply choosing a more compelling sub-culture.

Certain sub-cultures may be especially amenable to selection from across sub-groups. For example, team sports often foster racial mixing, as do music and various professions. Religion and economic stratum can be powerful shared sub-cultures, drawing members across racial groups. In other words, mixing of sub-cultures will occur when a compelling sub-culture is shared. That is a form of successful assimilation.

When voluntary sorting takes place, the parties seek commonalities. That’s a form of discrimination that may be quite healthy and not racist in any way. On the other hand, accepting diversity implies respect for other cultures and subcultures. Voluntary sorting allows those cultures to function, but it does not necessarily imply exclusion of others who might be curious and wish to learn and take part in a culture’s traditions, or who might even wish to become a part of a different community.

Counterproductive Compulsion

The insistence that racism is widespread is often an expression of support for compelled remedies or paying reparations of some kind to alleged victims. In a free society, the kind of voluntary sorting discussed above will always be a reality; any attempt to prevent it would require extreme coercion. Reparations for historical injustices, legal or economic, raise ethical questions about the treatment of those who must bear the costs. They also carry high administrative costs and tend to breed resentment and division. There are well-known downsides to quotas in hiring and in school admissions. Not only do quotas lead to reverse discrimination, they also can place the intended beneficiaries into situations of vulnerability to failure.

Markets Are Not Racist

Then there is the allegation that private markets are a source of “systemic racism”, having “disparate impacts” on certain minorities. However, it should be noted that the market mechanism tends to penalize racism. A consumer who chooses to avoid sellers of a different race will tend to pay a higher price for the privilege. An employer with a “taste for discrimination” must choose from a smaller labor pool and may lose the opportunity to hire the best talent. In other words, racists must pay for their preference. They also forego the creative benefits that diverse organizations tend to enjoy.

Certain minorities have struggled to achieve success in the private economy, but there are much better explanations for that difficulty than market forces, which provide the best opportunity for growth and assimilation. There is no question that institutional obstacles have had extremely harsh effects on groups starting from lower rungs of the socioeconomic ladder. A few examples: the failed public education has been especially burdensome for urban and rural minorities; various public policies have effectively excluded minorities from markets, including Jim Crow laws, the minimum wage and the Davis-Bacon Act; the so-called social safety net is rife with features that penalize work and reward fragmentation of families, making it as much a trap as a net; the drug war creates illicit market opportunities which present catastrophic but unappreciated risks for both the participants and their families; rent controls, zoning laws and restrictions on new construction limit the stock of affordable housing; heavy regulation makes starting a business difficult for those without the financial and legal resources to deal with it; and the ugly tradition of cronyism tends to reduce social mobility by entrenching privilege rather than rewarding economic value. The deck is stacked in many ways against economic mobility by public policy, and racial minirities have borne much of the burden.

Immigration Hotspot

Another controversy is whether racism is manifest in the negative views of many Americans toward immigrants. These claims allege ethnic and religious discrimination, including the hatred of Muslims. No doubt there are Americans who harbor racist attitudes toward immigrants. Some of this is grounded in unreasonable economic fears. There are also fears that terrorists may be among new immigrant populations, especially refugees, but that fear is hardly unreasonable given the recent experience of Europe and the difficulty of establishing reliable background information on some of these individuals.

Sharing Freedom

Racism still exists and it will never go away entirely. However, our dedication to freedom compels us to protect speech as long as it is not threatening. Racial discrimination by participants in markets can be difficult to detect, but racists must pay an economic price imposed by the market mechanism, and there are often legal remedies if racial discrimination in markets can be proven. Fortunately, racism today is not as widespread as the agitators would have you believe. The best policy for assimilation and acceptance is to promote a shared culture of freedom and economic opportunity.