Robert Bork, who died yesterday, left a legacy that includes
leading roles in several major events in American legal history—among them,
his failed nomination to the Supreme Court in 1987 and his role in Nixon’s
“Saturday Night Massacre” as the Watergate scandal unfolded in 1973. But Bork’s first turn in the national
spotlight came in 1963, when he became a uniquely influential critic of what would
become Civil Rights Act of 1964. Bork,
an expert in antitrust law, had only recently left private practice to teach at
Yale Law School when he published an article in The New Republic attacking advocates of national public
accommodations legislation for failing to appreciate its costs for individual
freedom. It was to this article that
Senator Ted Kennedy referred when he announced, during Bork’s confirmation
hearing, that “in Robert Bork's America, there is no room at the inn for
blacks.”
Kennedy was wrong to smear Bork as a segregationist. Bork’s point was not to defend racial
segregation. Indeed, in the article he
explicitly denounced the practice. But Kennedy
was not wrong to draw attention to Bork’s deeply problematic argument against
the Civil Rights Act. The kind of
liberty-based critique of antidiscrimination policy that Bork was articulating
is a topic I explore in a forthcoming essay titled “Defending the Right to Discriminate: The Libertarian Challenge to the
Civil Rights Movement.” It will be
included in Signposts: New Directions in Southern Legal History, a collection of seventeen essays,
expertly edited by Sally Hadden and
Patti Minter, which the University of Georgia Press will publish this spring.
Bork’s New Republic article
about the pending federal public accommodations bill has become probably the
most famous defense of the “right to discriminate.” Bork began by separating himself from
segregationist opponents of civil rights policy. He described the proposed legislation as
based in “justifiable abhorrence of racial discrimination,” and he lamented
that most critics of the law were “southern politicians who only a short while
ago were defending laws that enforced racial segregation” and hence only
opportunistic libertarians. Yet, Bork
insisted, one may stand opposed to racial discrimination and still see
something amiss in a national public accommodations law. “It is not whether racial prejudice or
preference is a good thing but whether individual men ought to be free to deal
and associate with whom they please for whatever reasons appeal to them…. The
trouble with freedom is that it will be used in ways we abhor.” State enforced segregation was wrong, but so
was state enforced integration in certain spheres of private relations. The principle behind the proposed law, Bork
explained in the most widely quoted lines of the article, “is that if I find
your behavior ugly by my standards, moral or aesthetic, and if you prove
stubborn about adopting my view of the situation, I am justified in having the
state coerce you into more righteous paths.
This is itself a principle of unsurpassed ugliness.”
Predictably, the article became a favorite reference point
for segregationists desperately looking for footholds from which to make their
stand. Bork’s argument also found
fertile ground in the new wave of libertarianism spearheaded by Barry Goldwater
and his 1964 presidential campaign. Bork
wrote a seventy-five page brief for Goldwater outlining the constitutional
infirmities of the civil rights bill. It
likely was influential with Goldwater, who ultimately voted against the Civil
Rights Act.
It is worth stopping
for a moment to consider exactly why Bork’s argument has rightly earned the
condemnation of history. (When, in 2010,
Rand Paul, the newly elected U.S. Senator from Kentucky, attempted to revive
some version of Bork’s argument, even his conservative allies told him to find
a new issue to talk about.) It cannot be
simply because judges have basically laughed such claims out of court whenever
they appeared. In upholding the public
accommodations provision of the Civil Rights Act in Heart of Atlanta Motel v. U.S. (1964), the Supreme Court summarily
slapped down an array of long-shot “right to discriminate” claims. But just because a constitutional claim is
not judicially cognizable does not mean that it is necessarily illegitimate in
other institutional contexts.
Furthermore, Bork was not wrong to insist that there are certain realms
of private life in which government should not tell individuals with whom they
can associate—who one invites to a dinner party, for instance, or to a book
group or perhaps even to join a private club.
Where Bork was wrong—where he was deeply, dangerously wrong—was in
thinking that the operator of a restaurant or hotel or other privately owned
public accommodations had some sort of liberty interest that outweighed the
government interest in extinguishing the shameful practice of racial
segregation from American society. While
the general principle was not wrong, the application surely was.
Thankfully, Bork
lost this particular battle. It is
important to recognize, however, that the more general argument in favor of a
right to discriminate survived the civil rights movement. When employed in opposition to the
desegregation of public accommodations, the argument failed to gain much
adherence outside the Deep South. Its
logic was too tangled, its implications too sweeping, its assumptions about the
line between personal associations and public life too implausible in modern
American life. Yet, by the late 1960s,
when housing discrimination became a leading issue on the civil rights agenda,
this rights claim, so improbable in its other applications, quickly became the
argument of choice for open housing opponents throughout the nation.
It was at least
partly by design that claims of a right to discriminate were eventually picked
up outside the South. Segregationists
embraced the language of individual liberties because it provided a more
politically acceptable way in which to resist civil rights, shifting the
discussion of civil rights from a question of white supremacy versus equality
toward a question of liberty versus equality.
To recognize this turn to the language of freedom and rights was often
flagrantly opportunistic and disingenuous does not take away from its
effectiveness. For all the conspicuous
failures of the libertarian challenge to civil rights it provided another way
in which opponents of civil rights could effectively operate in a post-civil
rights movement society. It provided a
language through which conservatives could accept much of what the civil rights
movement had accomplished, but also to insist that there should be limits to
antidiscrimination policy. And these
limits could be defended using the same tools that conservatives had been
cultivating in other contexts: a commitment to limited government and a
suspicion that excessive government regulation would lead the nation down a
slippery slope to socialism, and a belief that the expansion of government
power necessarily diminishes personal liberties. The argument that basic
constitutional rights were at stake, that liberty must be championed alongside
(or above) equality, opened the possibilities of creating alliances between
defenders of segregation in the South and conservatives outside the South. Although Bork and other proponents of the
right to discriminate failed in their effort to block the Civil Rights Act,
their libertarian critique provided a potent common ground that helped unite
the segregationist cause with conservatives around the country.
