Thomas Patrick Burke
D.Phil.,D.Th.
President, Wynnewood Institute, Professor Emeritus of Religion, Temple University
December 1, 2010
The Problem
The Civil Rights Act of 1964 created the crime of “discrimination,” a crime which did not previously exist. Since that date the effects of this new crime have made themselves felt in every corner of American society, in our schools, our churches, our businesses, our universities, our wedding ceremonies, our police, our armed forces and the defense of our nation against foreign enemies, and even the language we are allowed to speak. Every one of our institutions has been changed. For all of them were built up on actions and standards of behavior that are now deemed “discriminatory.” But now, whatever they do, they must never discriminate. However, in creating this new crime of discrimination in 1964, Congress omitted to make a vital distinction.
There is a difference of the most fundamental kind between actions that are forcible or coercive and actions that are non-coercive or peaceful. A coercive action is one that employs physical force or the threat of force on other human beings. A peaceful action is one that does not employ force or the threat of force on others. A peaceful action respects the freedom of will of other people. A coercive action negates, overrides and cancels out that freedom, replacing it with the freedom and will of the agent. Although in ethics this is a distinction of basic importance, it has never been applied to the act of “discrimination.”
There is a difference of the most fundamental kind between discrimination that is forcible or coercive and discrimination that is non-coercive or peaceful. Coercive discrimination includes 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.
By peaceful discrimination I mean discrimination practiced without the use of force or the threat of force. This includes discrimination in employment, in the purchase and and sale of houses, and generally throughout the whole range of our life together in society apart from the use of force. Although peaceful discrimination is distinct and different from coercive discrimination by the “whole extent of the heavens,” to use the ancient Roman phrase, since it shares the same name it has been tarred with the same ugly brush.
This distinction also applies to ideas such as racism. There is a difference of the most fundamental kind between racial preferences that are exercised by means of force or coercion, by practicing or advocating coercion on other races solely because they are other races, and racial preferences that are exercised peacefully, in the world of commerce or culture or personal relationships.
The Civil Rights Act of 1964 did something very good and necessary: it abolished in the United States the practice of coercive discrimination. The main form of this at the time was the system of segregation. Relatively few people now alive will have personal memories of that practice, which set up by the force and authority of laws, often known as the Jim Crow laws, mainly in the southern states, separate public facilities for blacks and whites: separate schools, separate railroad cars, separate busses or separate areas in busses, separate restaurants, separate toilets, separate drinking fountains and so on. This system, created by the governments of the individual states, had been declared constitutional by the Supreme Court in Plessy v. Ferguson of 1896. After the Second World War, however, the nation underwent a change of mood. The separate schools were abolished in 1954 by the Supreme Court in Brown v. the Board of Education. The Act of 1964 also abolished worse practices than segregation: lynching, and the terroristic activities of the Ku Klux Klan.
But in addition to the very good and right deed of outlawing the abominable practice of coercive discrimination, the Civil Rights Act of 1964 did something that (I am going to argue) was itself abominable: it also, in Title VII, outlawed the practice of peaceful discrimination. The Act did this by outlawing discrimination in employment. Further steps of the same nature were taken with the Fair Housing Act of 1968 and with “Title IX” (of the Education Amendments of 1972).[1]Consequently now, every time an employer wishes to hire an employee, a commonplace action that is the foundation of all developed economic life, it is subject to the intrusive veto of government and the police in the interests of a very particular conception of the public good, namely economic equality, which is far from being a subject of universal agreement.
The fact that an act of discrimination employs coercion without any moral justification for it, as slavery or lynching or the Jim Crow laws did, is sufficient to condemn that action morally without any further argument. But to condemn an action morally solely on the ground that it is discriminatory, as the law now does, requires a new and special argument showing that discrimination by itself, in the absence of any other ground of objection, is immoral. But has this argument ever been made? It has not.
Before we proceed, a note on terminology. Although the distinction between coercive and peaceful discrimination is close (in extension) to that between public and private discrimination, the two distinctions are by no means identical (in intension). The Ku Klux Klan was a private organization, but it relied upon coercion to produce its savage effects.
In the light of this situation I wish to ask certain questions:
- What exactly is wrong with peaceful discrimination?
- What is the concept of justice embodied in this criminalization?
- Why has this distinction not been made before?
- How did it come about that peaceful discrimination was made a crime by the Civil Rights Act of 1964?
- Since the Civil Rights movement was concerned only with discrimination on the ground of race, how did it come about that the scope of the Act was extended to embrace discrimination on the very different ground of sex?
- What are the consequences for society of making peaceful discrimination a crime?
What changed in the eighty years that passed between 1883, when the prohibition of peaceful discrimination was declared unconstitutional, and 1964 when it was declared constitutional?
- What exactly is wrong with peaceful discrimination?
Let us focus for the moment specifically on the question of employment, which may then serve as a model for the discussion of other forms of peaceful discrimination. What exactly is wrong with discriminating in employment? Is it contrary to justice?
Not to ordinary justice. Ordinary justice, which asks how individuals should treat one another, is a demand, as the Code of Justinian says, that we not injure one another, and that we give to each person what belongs to him. But when one individual refuses to employ another, the person who is not hired is not thereby injured. An offer of employment is a gift, and no one is injured by not being offered a gift. The person who is not employed is not robbed of anything he possessed; his condition is not in any respect worsened. It simply remains what it was. Basically all injustice is a form of coercion. But when a person refuses to hire another person, no one suffers coercion.
But suppose no one wants to hire him? That is, of course, a disaster for him. But not every disaster is an injury, for which someone else may be penalized. Neither in Roman law nor in the English or American Common law was there ever a crime of “discrimination.” The reason for this is that the concept of discrimination can never be used to settle a dispute. For it consists, as we shall see, not in harming anyone, but in providing a benefit to others.
Jobs are created by employers. A job exists only because the employer wants something done and is prepared to pay for it. The job therefore belongs to the employer. It is his property. It does not belong to the employee. If the employer should suddenly become unable to pay for it, the job ceases to exist. Nothing similar happens if the employee should suddenly become unable to work. In that case the job becomes available for someone else. While employer and employee are no doubt equal in human dignity, and this is an important truth which should never be forgotten, they are emphatically not in a position of equality in regard to the job.
If you create a job by investing your money and it therefore belongs to you as the employer, you have the moral right to decide who shall be employed and under what conditions. No one else has this right, including government. The government’s claim to such a right is spurious, an unjust usurpation of ownership rights. Government exists for the purpose of protecting the rights of employers, as of all owners of property.
When a person applies for a job and is accepted, an agreement or contract is made. If a job by its nature has certain requirements, typically spelled out in the advertised job description, American law allows the employer to refuse to hire members of protected groups who do not posses those qualities. But the members of protected groups that do possess those qualities must be hired. A job description of, say, a flight attendant or bartender or banker can be written up in terms of certain skills, and whoever has those skills must be hired, whether the employer desires to do that or no. But the description of a job in terms of certain skills is only a matter of custom, how the work desired by the employer is customarily understood or divided up. Those skills do not create the job. It is only the will of the employer that creates the job.
The view that a job can be understood simply in terms of its customary skills assumes that since a job can be described and advertised, it is an objective reality possessing objective qualities that exist independently of the employer’s wishes. But this is a fallacy, akin to the outmoded labor theory of value that, originally suggested by Locke, seduced both Adam Smith and Karl Marx. According to this theory, the economic value of anything is a fixed and definite quantity given by the quantity of labor that went into the production of the thing. One of the great contributions of the Austrian school to economics and to the philosophy of economics has been to point out that, on the contrary, economic value is entirely subjective. Economic value is the value agreed on by the buyer and the seller, and has no independent existence apart from their agreement. Similarly, the economic value of a person’s labor is not something objective and independent of employer and employee, but is given by the agreement between them. Though a job may be given a definite description, it exists only by the will of the employer and is entirely dependent on that.
This is confirmed by the gospel parable of the laborers in the vineyard in Mat. 20. You will recall the story.
“[T]he kingdom of heaven is like a householder who went out early in the morning to hire laborers for his vineyard.
After agreeing with the laborers for a denarius a day, he sent them into his vineyard.
And going out about the third hour he saw others standing idle in the market place;
and to them he said, `You go into the vineyard too, and whatever is right I will give you.’ So they went.
Going out again about the sixth hour and the ninth hour, he did the same.
And about the eleventh hour he went out and found others standing; and he said to them, `Why do you stand here idle all day?’
They said to him, `Because no one has hired us.’ He said to them, `You go into the vineyard too.’
And when evening came, the owner of the vineyard said to his steward, `Call the laborers and pay them their wages, beginning with the last, up to the first.’
And when those hired about the eleventh hour came, each of them received a denarius.
Now when the first came, they thought they would receive more; but each of them also received a denarius.
And on receiving it they grumbled at the householder,
saying, ‘These last worked only one hour, and you have made them equal to us who have borne the burden of the day and the scorching heat.’
But he replied to one of them, ‘Friend, I am doing you no wrong; did you not agree with me for a denarius?
Take what belongs to you, and go; I choose to give to this last as I give to you.
Am I not allowed to do what I choose with what belongs to me? Or do you begrudge my generosity?’
So the last will be first, and the first last.” (RSV)
Why did the workers grumble? Because a benefit was given to somebody else. They grumbled at the inequality, the unfairness of it. But the householder replies that inequality or unfairness is not a wrong. They have suffered no loss. They have received the compensation they agreed to. They have no ground for a complaint. He has the right to be generous with his money if he wishes to be.
The Swiss pharmaceutical company Novartis recently in a New York court was fined $3.3 million and penalized a further $250 million for gender discrimination. An important part of the evidence against them was that they paid their salesmen on average $75 a month more than their saleswomen. The women had knowingly and willingly applied for these jobs at these salaries. They suffered no loss. Yet on discovering that the men were paid more, they filed suit, treating the benefit given to the men as if it were an injury to themselves.
It is true that to refuse publicly to hire the members of a certain group is to a certain extent invidious: it is a public statement that in some respect one does not view them as acceptable. Depending on how it is done, this may involve a lack of humane feeling on the part of the employer. It may well be unfair, that is, it may not treat the person equally with oneself or others. Fairness is a genuine virtue, and it is undoubtedly a great virtue. But there are different kinds of unfairness: some are injurious and some are not; some are coercive and some are not. The unfairness of a criminal towards his victim is injurious. The unfairness of the gospel householder or of Novartis was not.
Fairness is not the same as justice. Fairness consists in treating people equally, that is, humanely, but justice consists in giving them what they deserve. These can be very different. I have a duty to treat other people equally because they are equally human beings like myself. This is a permanent truth. But I have a duty to give them what they deserve because what they deserve depends on their actions, what they have previously done. This is not a permanent truth but changes constantly with their actions. It is easy to confuse justice with fairness because to treat a person unjustly is always to treat him unequally. The person who robs or murders you is not treating you as an equal. But this proposition cannot be inverted. To treat a person unequally is by no means always to treat him unjustly or contrary to his deserts.
It is universally recognized that infringements on justice can legitimately be remedied by the use of force. This is what gives the concept of justice its unique power. It is always advantageous to a party seeking to invoke the use of force in favor of its side in a dispute if it can claim it has suffered injustice. But this is not true of fairness. Simple unfairness, non-injurious unfairness, cannot legitimately be remedied by the use of force. The appropriate way of remedying it is by persuasion.
The case is similar with boycott. A boycott may be dreadfully unfair. But a boycott is not a wrong, it is not an injury, and it cannot rightly be penalized.
In 1968 Congress passed the “Fair Housing Act” (Title VIII of the Civil Rights Act of 1968). It outlawed discrimination by the owner of a dwelling, on the grounds of race, color, religion or national origin, in the rental or sale of the dwelling, but allows the renter or purchaser the freedom to discriminate.
- What conception of justice is involved in declaring peaceful discrimination unjust?
We have seen that peaceful discrimination is not, and never was considered¸ an offense against ordinary justice. It is an offense only from the viewpoint of what is called “social justice.” But social justice is not a genuine form of justice at all. It is only pseudo-justice. It does not even qualify as a concept of ethics.
Ethics is concerned with the evaluation of human actions. And ordinary justice asks how individuals should act towards one another. But the distinctive feature of what is called social justice is that it asks a very different question: how should power be distributed in society? What is just according to social justice is not in the first instance any particular way of acting towards others, but a particular state of affairs in society, namely equality of power. And what is unjust in this view is inequality of power.
In the view of ordinary justice, whether a state of affairs is just or unjust hinges on how it came about, on the kind of action that brought it into being. If I have $100 in my pocket, the question ordinary justice asks is: did I steal it or earn it, or did someone give it to me as a gift? But in the view of social justice, how it came about is irrelevant. The only question is: how many other people have $100? If everybody else has only $1, there is inequality, which it condemns as “socially unjust.” But injustice is a term of ethical evaluation. That is, it can rightly be applied only to human actions. But the fact that other people have or do not have $100 is not an action, but a state of affairs, something very different, and a state of affairs which may have come about entirely by accident without anyone being responsible for it. In philosophy this has been called a category mistake: a serious fallacy. It is like attributing a sense of honor to a brick.
The biggest difference between ordinary justice and social justice lies in what happens to responsibility and accountability. In ordinary justice there can be an injustice only if someone has done something wrong, and so only if someone is responsible for it. There must be an intention of doing something wrong. There must be mens rea. There cannot be injustice without responsibility. But in social justice all that is of interest is inequality, no one need be responsible for it, and as the Supreme Court informed us in 1971, with its concept of “disparate impact,” it is possible to be guilty of the crime of discrimination even if one had no intention to discriminate.
- Why has this distinction not been made before?
One reason is that the Left are not disposed to view coercion as ethically so very problematic. It is problematic only if you believe in free will, and if therefore you prize individual responsibility. If you believe human beings have free will, that freedom of will is negated and cancelled out by the use of force, and individual responsibility is lost. Coercion is therefore a crime, the very essence of injustice. But the Left tend not to believe in free will, or at least to marginalize and downplay it, because they do not wish to believe in individual responsibility. If individuals are responsible for their actions, they are responsible in some degree for their own fate. In the eyes of the Left, however, it is society that is responsible for the fate of human beings, and it is society that must be changed accordingly. For the Left, inequality, even if it worsens no one’s condition, is worse than coercion. That is why they are prepared to use coercion to eradicate inequality.
- How Did Peaceful Discrimination Come to be Outlawed?
The chief aim of the civil rights movement and the NAACP at its founding in 1911 was to eliminate coercive discrimination: the system by which various forms of discrimination were mandated by law or supported by the law as we have already seen, such as segregation, lynching, the “Jim Crow” laws and the activities of the Ku Klux Klan. The aim of the civil rights movement was to extend to blacks the same rights already possessed by whites. It was not to create new rights that whites had never enjoyed. For this reason these rights were traditionally called civil liberties, because they consisted in the acknowledged liberty to do ordinary things, free from coercion. They were rights to be let alone.
The situation with employment discrimination was very different. The founders of the NAACP were indeed concerned to eliminate it and other forms of peaceful discrimination, but they planned to do so peacefully, that is, by persuasion, not by the force of law.
The prohibition of discrimination in employment conferred a new right, the right not to be discriminated against, which had never existed before. It was not a liberty, or freedom from coercion, a right to be let alone. It was a right that mandated a positive performance from other persons. According to this new right, if you hired anybody, you had to hire members of certain groups. The pressure to eliminate peaceful discrimination in employment came, not from the civil rights movement as such, but from the socialist movement and the labor movement. The chief agent of this change was one Asa Philip Randolph.
Randolph was born in 1889 in Crescent City, Florida. In1910 at the age of 21 he joined the Socialist party of Eugene V. Debs. In 1917 with the help of the Socialist Party he helped found a radical monthly magazine, the Messenger, which opposed U.S. participation in World War I, urged African Americans to resist being drafted to fight for a segregated society, and recommended they join radical unions. In 1919 he became president of the National Brotherhood of Workers of America, a union which organised amongst African-American shipyard and dock workers in the Tidewater region of Virginia. In 1920 he ran on the Socialist ticket for New York State Comptroller, and for Secretary of State of New York in 1922. In 1925 Randolph organized the Brotherhood of Sleeping Car Porters and was elected its president. In 1941 he joined in proposing a march on Washington to protest racial discrimination in the war industries and to demand the desegregation of the American Armed forces.
In 1947 he helped form the Committee Against Jim Crow in Military Service, later renamed the League for Non-Violent Civil Disobedience. The following year President Harry Truman abolished racial segregation in the armed forces through an Executive Order.
In 1963 Randolph joined Martin Luther King, Jr., in organizing the March on Washington for Jobs and Freedom, at which King gave his famous speech “I Have a Dream.” This march and King’s speech were largely responsible for changing the attitude of Congress to the Civil Rights Bill from skepticism and hostility to approval and support, so that it was passed the following year. It also brought Randolph into the group of African Americans who eventually negotiated the individual provisions of the bill with Rep. Emmanuel Celler, chairman of the Appropriations committee in the House, and his counterpart in the Senate, where it was Randolph who insisted on including Title VII, which prohibits peaceful discrimination in employment. In September 1964 President Lyndon Johnson presented Randolph for this with the Presidential Medal of Freedom. In 1970 he was named Humanist of the Year by the American Humanist Association.
It is clear from its history that the prohibition of peaceful discrimination in employment in Title VII did not develop out of a demand for ordinary impartial justice as was the case with the demand to end segregation and the various other forms of coercive discrimination. Title VII originated out of the specifically socialist and revolutionary conceptions and values to which Randolph was personally committed.
- Discrimination on the Ground of Sex.
The pressure for passage of the Civil Rights bill came entirely from the Civil Rights movement, whose concern was focused entirely on the question of race. The bill might therefore have been considered simply a particular measure to correct a particular problem in a particular country with a particular history. But it soon transpired that much more was at stake. In each clause of the bill’s provisions one can now find the word “sex.” The original text of the bill did not contain this word. It was added through an amendment moved by Howard W. Smith, Democratic congressman of Virginia, chairman of the House Rules Committee, which controlled the procedure for passing the bill. By an irony of historic proportions, Smith’s motive for moving the amendment, according to the plausible account given later by his colleague, Representative Carl Elliott of Alabama, was not, as one might suppose, to advance the cause of women’s rights, but to sink the original bill. For he was adamantly opposed to it, and reasoned that if it included a prohibition of discrimination on the ground of sex, that would prevent it from obtaining the necessary votes. However, as we now know, his reasoning was faulty: the pressure was sufficient to ensure the bill did receive the necessary votes. It faced further opposition in the Senate, but President Lyndon Johnson, who was determined to get the bill passed, was able to use the power of his office to persuade enough senators to support it.
Unlike with the question of race, there had been no large, popular movement in the United States to eliminate differential treatment of the sexes. In 1964 the feminist movement was still small. Betty Friedan had just published her Feminine Mystique (a product of the labor union movement), the year before. Gloria Steinem did not publish Ms Magazine till 1972. American society at large generally accepted that men and women had in many respects different desires and different needs, and that there was a natural division of labor between them. There was no political constituency for a law imposing gender equality. It is true that the Equal Pay Act had been enacted some months earlier, but the motive for that was very different: it was put forward by the labor unions in order to ward off “unfair competition” for men from women doing the same job at lower wages. The Civil Rights Act of 1964 had a different motive, was far broader in scope, and its consequences have been much more far-reaching.
By this accident of history discrimination as such was absolutized as an evil, and universalized. For once discrimination on the ground of sex was prohibited, every other form of discrimination came to be considered illegitimate in principle (except, of course, for affirmative action). For there is scarcely any aspect of human life where discrimination has traditionally been viewed as more obviously necessary and more completely justified than in the distinction between the sexes. If it was illegitimate there, it could not well be legitimate anywhere, it has been felt. And this condemnation of discrimination was soon exported to other countries around the globe. In remote New Zealand the law now prohibits discrimination on the grounds of sex – which includes pregnancy and childbirth – marital status, religious belief, ethical belief, color, race, ethnic or national origin or citizenship, disability, age, political opinion, employment status, family status, or sexual orientation. In other words, all forms of discrimination are evil.
- What are the consequences for society of making peaceful discrimination a crime?
The concept of justice provides every society with its most fundamental rule of social order. When the concept of justice is perverted, the effects are not merely superficial: they go right to the foundations of the society. It would take a good deal of time to detail these effects, but for the moment will only draw your attention to a couple.
One of the first victims is truth. As soon as peaceful discrimination in the US was made a crime, every right thinking person was impelled into a gigantic conspiracy to conceal inequalities. Inequalities could be recognized to exist only if they were condemned. No one must speak as if inequalities were even possible, except to say they are regrettable. Now perhaps people have been inclined to exaggerate inequalities. Or perhaps not. We will never know, because the research to answer the question is prohibited. Not long ago the president of Harvard University made the mistake of expressing the opinion that possibly there were fewer women at the top level of science because they lacked the natural aptitude for it. This would perhaps have been an interesting and important question to investigate further: was he right or wrong? But this question was not asked; instead he was hounded out of the presidency by his female faculty members. The suppression of free inquiry and politically unpopular opinion which may nevertheless be true is now a daily occurrence in our universities. The university is supposed to be an institution dedicated to the mission of discovering and teaching the truth without fear or favor. But it has now been deeply corrupted by the prohibition of peaceful discrimination.
A related consequence is that every appointment of a member of a protected group to a position requiring expertise becomes suspect. Possibly they may actually possess the expertise their position demands, but we may never know, since the question cannot be asked.
These questions of “political correctness” are only the tip of the iceberg. Once peaceful discrimination has been made a crime, every single institution in our society is compromised. For now every institution must serve two masters. An institution is an organized form of cooperation. Every institution is created originally for its own distinct purpose. Schools are created to teach the young, banks to lend money, marriage and the family to provide for the continuation of the human race, the armed forces to protect the nation, restaurants to serve meals, the churches to foster the spiritual dimension of life, and so on. But now every one of these institutions is given an additional purpose: to increase equality in society. Now it is no longer enough that schools should educate the young, but they must help make society more equal, through their hiring practices, their curriculum, through social promotion and so on. It is no longer enough that banks should lend money according to the ordinary canons of sound business, but they must also help make society more equal by their hiring and their lending practices. It is no longer enough that the armed forces and the police should protect the nation from aggression, but they must help make society more equal by their recruitment and promotion policies. It is no longer enough that marriage, the quintessential institution of heterosexuality, should provide for the continuation of the human race, but it must help increase equality in society by allowing the marriage of homosexuals. It is no longer enough that the churches should foster the spiritual life in their accustomed and traditional ways, but they must help make society more equal by retranslating their scriptures, changing the rules for admission to the ranks of the clergy, and so on.
Not only is every institution given an additional new goal, but also its authority is compromised and weakened. No institution can succeed without some form of authority. But now the authority of parents is undermined in the family, the authority of teachers is undermined in the school, the authority of the employer is undermined in firms. All authority is now regarded with hostility and suspicion as a possible source of inequality and oppression. There is therefore a heavy price to pay for the principle of non-discrimination. If non-discrimination were required by genuine justice, that price would have to be paid, for nothing can be more important for any society than to fulfill the demands of justice. But non-discrimination is not a requirement of ordinary justice, but only of “social justice,” which is pseudo-justice and not true justice at all.
Economically the prohibition of peaceful discrimination is a form of protectionism: it protects certain groups from the natural competition they would otherwise be exposed to in the ordinary course of life. Although economists have long studied the effects of protectionism in general, to my knowledge there have been no studies at all of civil rights protectionism.
- Peaceful discrimination was already prohibited by the Civil Rights Act of 1875, which provided that “All persons … shall be entitled to the full and equal enjoyment of accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement.” But the Act was challenged in 1883 and declared unconstitutional. The majority opinion was written by Justice Joseph P. Bradley, who argued that it could be justified neither by the 14th Amendment, which was directed only against actions of the state and not against those of private individuals, nor by the 13th which ended slavery. “It would be running the slavery argument into the ground to make it apply to every act of discrimination which a person may see fit to make … as to the people he will take into his coach or cab or car.” For, “When a man has emerged from slavery, … there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the law.”
The Civil Rights Act of 1964 was challenged in Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964). The owner of the motel filed suit in federal court, arguing that the requirements of the act exceeded the authority granted to Congress over interstate commerce. But the Supreme Court[2] observed that 75% of the motel’s clientele came from out-of-state, and that it was strategically located near Interstates 75 and 85 as well as two major U.S. Highways. The court concluded that the business clearly affected interstate commerce and that Congress acted within its jurisdiction of the Interstate Commerce clause in passing the Civil Rights Act of 1964.
But Title VII on employment is a very different matter. Is the prohibition of discrimination in employment within a state a “regulation of interstate commerce”? This can certainly be disputed.
The Common Carrier Rule.
The Common Carrier rule was a Common law rule developed in earlier centuries by English judges which imposed special duties on certain professions that “affect to trade with the public” to serve all who sought service, on just and reasonable terms, and without discrimination. It was an independent development out of contract law and had nothing to do with the later American concept of civil rights. It was accepted in the US as part of the Common law tradition. It seems to me that a persuasive case can be made for this rule in its own right, and that it can solve the problem of public accomodations without invoking the current mistaken conception of civil rights.
In all of these areas, immense confusion has been caused in the public debate and in legislation by failure to make this distinction between practices that engage in the use or threat of force and those that do not engage in the use or threat of force. In each case the innocent peaceful practice is referred to by the same term as the obnoxious coercive practice, and the symbolic and emotional associations that go with criminal coercion are attached unconsciously to ordinary actions that bear no genuine guilt.
Terms like racism should be restricted to the coercive practices that are rightly judged criminal.
Peaceful discrimination is a human right.
[1] Now the Patsy T. Mink Equal Opportunity in Education Act, in honor of its principal author Congresswoman Mink. The law states that “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance…”
[2] The opinion of the court was delivered on December 14, 1964,by Justice Tom C. Clark, with concurring opinions by Justices Arthur Goldberg, Hugo Black, and William O. Douglas.