The Civil Rights Act of 1964 created the crime of “discrimination.” But it failed to make a vital distinction.
From the point of view of moral principle, there is a difference of the most fundamental kind between actions that are coercive, that is, use physical force or the threat of physical force on other people, and actions that are peaceful, that is, do not use force or the threat of force on others. A peaceful action respects other people’s freedom of will. This is a basic requirement of ordinary justice. A coercive action overrides and tramples on that freedom, replacing it with the freedom and will of the agent.
Corresponding to this, there are two kinds of discrimination which are fundamentally different: there is coercive discrimination and peaceful discrimination.
Examples of coercive discrimination are slavery, lynching, segregation enforced by law, the “black codes,” the “Jim Crow” laws, voter suppression and the notorious activities of the Ku Klux Klan. These were all outrageously wrong because they employed force or the threat of force on innocent people, or in the case of lynching, people who at the least deserved a fair trial.
Peaceful discrimination includes discrimination in employment, in buying and selling, and in general in commerce and the market.
In this lecture we will ask some questions that arise when this distinction is recognized. What exactly is wrong with peaceful discrimination? What concept of justice does the criminalization of it represent? How did it come about that peaceful discrimination was made a crime by the Civil Rights Act of 1964? What are the consequences for society of making peaceful discrimination a crime? In 1883 the Supreme Court ruled in effect that the prohibition of peaceful discrimination was unconstitutional. What, if anything, has happened to change that verdict?
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