Thursday, December 20, 2012

Robert Bork and the Right to Discriminate

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.