New View of Civil Rights
Llewellyn H. Rockwell, Jr.
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.
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?
is this fair? Epstein says yes. Fairness means freedom to own property
and to contract. Both require the repeal of the anti-discrimination
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.
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.
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.
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.
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.
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
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.
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.
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.
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."
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
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.
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.
year, the university sought to place Weiss on a part-time contract,
and he claimed age discrimination. Yes, but so what?
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.
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.
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.