On the first day of the Clarence Thomas hearings, Joe Biden waved a copy of Takings by University of Chicago law professor and economist Richard Epstein. In the work, Epstein argued that the welfare-regulatory state is unconstitutional. An apoplectic Biden demanded that Thomas repudiate Takings, which he quickly did.
If Takings drove Biden crazy, I can hardly wait to see him with a copy of Epstein’s newest book, Forbidden Grounds, which advocates the repeal of all anti-discrimination laws, including the 1964 Civil Rights Act.
When that law was passed, we were promised a new dawn of happy race relations; 28 years later, bitterness between the races is the norm, especially in the workplace.
The only solution ever proposed is more government intervention. Are we really condemned to a series of evermore draconian and far-fetched civil rights bills? Yes, says Epstein, unless we deny the government the power to impose what is, in effect, racial central planning on the economy. Civil rights laws have made us poorer and angrier, while reducing efficiency, undermining merit, and expanding bureaucratic power. They must, he shows, be junked.
Wouldn’t some people then discriminate? Sure, says Epstein, but so what? If a black beauty salon wants to exclude white hairdressers, that’s fine. If an Asian restaurant wants a homogeneous workforce, that’s fine too. Companies are more than abstract production units; they are micro-cultures. Shared tastes, values, and traditions can help a firm appeal to the Mexican market, for example. Why should it be forced to hire Anglos, especially since the free market insures everyone a place in the division of labor?
But is this fair? Epstein says yes. Fairness means freedom to own property and to contract. Both require the repeal of the anti-discrimination laws.
Unless we do so, we will have gradual labor-market paralysis. Even the supposedly anti-quota 1964 Civil Rights Act effectively decreed them. When prosecutors found it difficult to prove bad motives by “non-diverse” firms, bureaucrats started playing Count the Minorities, and businessmen were forced to adopt quotas.
Ironically, this harmed the most vulnerable. To fill their quotas, employers seek only the most capable minorities. Others are shunned, no matter what the job category, since there is less chance they will work out, and firing any member of a federally protected minority-no matter how incompetent-can mean a federal lawsuit.
Epstein would also have us reevaluate the politicians who opposed the 1964 act; they correctly foresaw quotas and economy-wide social engineering. But even the most prescient did not predict the outlawing of written tests that fail to produce racially proportionate scores, or the banning of company rules against hiring ex-cons, since more blacks fall into that category than whites.
Moreover, Epstein shows that the damage is done by all anti-discrimination laws, whether based on race, age, sex, or disability. Therefore all of them must be wiped from the books.
Mandatory retirement, for example, is an essential part of the free market. You know, when hired, that at a certain age, you will have to retire. On the margin, employers want to have the option of hiring the younger employees who are more likely to be productive in years ahead. It does not always work out that way, of course, but such standards are more efficient than case-by-case determinations.
To retire an older person isn’t to kick him out of the division of labor or to judge him incompetent. He can get other jobs in other capacities, if he wishes, and he is spared the humiliation of a competency hearing.
The government says that mandatory retirement ages discriminate against old people, as of course they do. Such a rule assumes that older people are different from younger ones, something the government refuses to recognize. The government claims there is no difference, but if that were true, private employers would not discriminate and there would be no issue.
What’s next? Laws forbidding discrimination against the young? In fact, it’s just the opposite, as the government refuses to allow anyone under 16 to work for a living.
The government’s intervention in employment contracts is particularly egregious in universities. The Equal Employment Opportunity Commission is attempting to abolish mandatory retirement for tenured faculty. Amendments to the anti-age discrimination law in 1986 exempted universities until December 31, 1993, but the EEOC hasn’t waited.
As Epstein notes, “The internal operation of universities (especially the prominent research universities) will suffer if mandatory retirement is eliminated — more I suspect, than most pessimists fear.”
Given tenure, which tends to dampen productivity anyway, mandatory retirement is the only way to preserve the intellectual vitality of universities. Automatic tenure termination allows all parties to avoid endless evaluations by peers and administrators that could cause only bitter hatred. If the government forbids tenure termination, promising young scholars in economics and other disciplines will be crowded out.
So absurd are the EEOC’s rules that if a university set up a panel to review the status of its oldest faculty, that itself would be a violation of anti-discrimination regulations.
The government forgets that many faculty whose tenure is terminated on schedule find teaching positions in other universities if they wish. A case in point is philosophy professor Paul Weiss, whose tenure at Yale ended in 1969. He left for Catholic University, where he presently teaches. Until his present age of 91, the university kept him on a year-by- year contract. He requires graduate students to help him get around and do his shopping. Understandably, he cannot hear very well.
Last year, the university sought to place Weiss on a part-time contract, and he claimed age discrimination. Yes, but so what?
William F. Buckley, Jr., however, takes the left-liberal view. Weiss taught Buckley at Yale (and Buckley denounced him in God and Man and Yale as a leftist, and says his views are no different today). When Weiss hollered about age discrimination, calling for the government to intervene, Buckley came to his rescue. In a column, he cheered on the EEOC, which then ruled against the university. He made what should have been the private decision of a great university the subject of ignorant public debate.
This is just one more piece of evidence that, as Epstein says, all law against age discrimination ought to be “repealed forthwith.” Like other anti-discrimination laws, they are an attack on property, the free market, and the freedom to contract. They serve special interests and state power, setting black against white, men against women, and young against old.
If this book isn’t burned by the ACLU, it will permanently alter the debate on civil rights. For that, Epstein deserves the Pulitzer. But given today’s climate, he may have to he satisfied with the spittle running down Biden’s chin as he reads Forbidden Grounds. After all, a Biden denouncement can only increase sales.