Philosophically speaking, discrimination is of two very different kinds: coercive or forcible and non-coercive or peaceful. Coercive discrimination discriminates by employing physical force or the threat of physical force. Slavery, lynching, the “Black Codes,” the “Jim Crow” laws, the violent intimidation carried out by the Ku Klux Klan: these have been some of its forms in this country: in others, Hitler’s gas chambers and “ethnic cleansing.” “Segregation” originally suggested discrimination by coercion. Discrimination by government or the law is invariably coercive. Coercive discrimination is prima facie incompatible with the traditional Western conception of right and wrong found in the Common law because it inflicts harm on persons who have committed no crime.
Non-coercive or peaceful discrimination is carried out by private individuals or organizations through the myriad peaceful choices made in the course of daily life. It consists not in doing any action, but precisely in not doing an action: namely, not doing business with persons who are members of some group. Peaceful discrimination was considered entirely compatible with the traditional Western conception of justice because it does not inflict harm. There was never a crime of “discrimination” in the tradition of the Common law; any more than there has been a crime of boycott. Until 1964 it was generally taken for granted at least throughout the English-speaking world that being a citizen of a free country meant having the liberty to do business or not to do business as one wished.
During the nineteenth century following the Civil War the idea of “civil rights” referred to rights against coercive discrimination. The Fourteenth Amendment to the Constitution, 1868, which guaranteed to all “the equal protection of the laws,” was guaranteeing protection against coercion. This was also the aim of the four Civil Rights Acts passed by Congress in 1866, 1870, 1871 and 1875. It is true that the Act of 1875 stepped over the boundary of coercive discrimination into the territory of peaceful discrimination by requiring that “public accomodations” (“inns, public conveyances and theaters and other places of amusement”) must offer “full and equal enjoyment” of their facilities to all persons in the United States. But this was declared unconstitutional by the Supreme Court in 1883 on the telling ground that Congress had no power to regulate the conduct of individuals.
The Civil Rights Act of 1964 took the revolutionary step of denying this: it criminalized peaceful discrimination. In its Title VII on employment it provided that (under certain conditions) if you employ anyone, you must employ certain people. This intrusive idea came, not from the traditional Western conception of justice, but from the influence of socialism with its new idea of “social justice,” ultimately a product of the French Revolution. For the Civil Rights movement had tight links to socialism from its beginnings. (Several founders of the NAACP were socialists, including W. du Bois, Mary O. White, William Walling; Martin Luther King, Jr. and many of his supporters were strongly sympathetic to socialism.) It was a significant departure from the traditional rights of liberty possessed by Americans, and its main proponents were well aware of that. At the same time, a provision was included which implicitly recognized that peaceful discrimination was not inherently unjust, because a special exception was made to allow it against members of the Communist Party!
Since 1964 the American legal system has been in a state of schizophrenia, because it is committed to upholding a principle, prohibiting peaceful discrimination, which is logically incompatible with the basic principles on which the system rests. The current division of the Supreme Court into two opposing philosophical camps, manifested once again in their new ruling on discrimination in the public schools, is an unsurprising result of this.