My last post on discrimination provoked some thoughtful reactions. First from Timothy Sandefur. This passage boils down the point:
Part of the problem lies in the concept of “state action,” as I’ve written earlier. If everyone in the state makes an agreement (even sub silentio) not to engage in trade with blacks, even if they don’t stamp that agreement with the state’s imprimatur, it is still a social compact, which means that it can’t pretend not to be state action. On the extreme, we get to the point that Mississippi was in in the 1950s, where a black person could legally register to vote, but never did so because blacks were all tenant farmers, and their white landlords would evict them if they dared to register to vote. I don’t know a laissez-faire policy that would prevent this from occurring. As Frederick Douglass put it in his response to the Civil Rights Cases, “[w]hat is a State, in the absence of the people who compose it? Land, air and water. That is all.” Rowe is certainly right that a person has the right to discriminate in almost all cases, but when that discrimination reaches such a massive collective agreement, it becomes state action, I think, and subject to the same objections as state discrimination: that since all men are created equal they have the equal right to consent, and should not be taxed to support a government that burdens them unequally.
This pretty much comports with what Richard Epstein has written in Forbidden Grounds where he argues that private discrimination ought to be allowable except when such discrimination is committed by those with monopoly power or who qualify as common carriers. I think it would be wrong, however, to suggest that even during the worst periods of Southern racism that whites as a group would act so single mindedly as to make private discrimination in most aspects of life the equivalent to an exercise of monopoly power. This is because those southern racists were still rational human actors (even if their racism was not rational). And the Jim Crow system of segregation in nearly all aspects of life (whether officially mandated by the government, or “customarily” mandated) was a fundamentally economically irrational system. Supra-competitive gains could be made by the few whites who would be willing to buck the Jim Crow line. Even racists would be willing to line their pocket-books.
So why didn’t they? Well for one, in certain circumstances it was explicitly against the law in order to do so. But the story is not so simple. I realize that there were many circumstances where racial segregation was not officially mandated but the patterns persisted anyway. So why couldn’t those self-interested whites, who wished to say, hire the available labor pool of blacks, or serve them in their restaurants, (thus taking their $), do so and realize the gains, if no such “official statute” prevented them from doing so?
Jason Kuznicki, in his response to me, nails the answer:
It strikes me, though, that this counterfactual is overworked. State violence was not the issue in the Jim Crow South. Non-state violence was key, and it took only a small measure of private violence to ensure that even the rational traders of the region could not do business without discriminating. Nonstate actors like lynch mobs and the Klan would see to maintaining the system, either through direct violence or through its persuasive threat. This violence also had the effect of perpetuating racism in the subsequent generations, as children grew up learning to follow the color line even before they understood what it meant.
Now Jason writes this paragraph in attempting to demonstrate, contra my claims, that Jim Crow was not about state, but rather private action. But in reality this was state action. And not only was it state action, but it was the type of state action that the framers of the 14th Amendment were keenly aware of and concerned with eradicating. Before I explain this in detail, most of us know that the nature of what the 14th Amendment is supposed to do is highly contested (for instance, did it intend to incorporated they Bill of Rights against the states?), and we also know that the 14th Amendment was clearly intended to apply to state, not private, action. This is why the Civil Rights Act of 1964 was passed not under the 14th Amendment, but rather under the Commerce Clause of the US Constitution. If the Amendment only outlawed government action, instead of private commerce, then it could have been passed under the 14th Amendment.
As much as the nature of the 14th Amendment is contested, what is uncontestable is that the type of “private action” that Kuznicki refers to that really is government action, is what the framers of the 14th Amendment clearly intended to eradicate. In fact, this is what a textual reading of the Equal Protection and other related clauses of the 14th Amendment, clearly on their face, seem to deal with. When the lynch mobs or the Klan either took violent action or threaten to take such action to enforce the color line, there were general laws that were on the books that illegalized all such behavior. It was the obligation of those state governments to figure out who was behind the violence and prosecute them to the fullest extent of the law. But they didn’t do that. In many cases the same local cops, lawyers, and judges whose responsibility it was to carry out the laws were the same fellows behind the masked robes threatening and carrying out violence. So the police wouldn’t arrest, the prosecutors wouldn’t prosecute, the courts wouldn’t convict and the state governors wouldn’t intervene.
The equal protection clause of the 14th Amendment reads, “nor shall any State…deny to any person within its jurisdiction the equal protection of the laws.” Whatever else this clause may mean, at the very least, the framers meant it to mean that if you have a general statute on the books, for instance a murder statute, or one preventing assault or intimidating threats, that it be applied equally to all persons even if they be black or the whites who desire to do business with blacks. So if the Klan threatens or does violence against those folks, state officials have a federal obligation to apply the laws that deal with such violence exactly as they would apply them in a circumstance where a black person would commit violence against a white, or where anyone commits violence against anyone else. The police, governors, and courts have a federal obligation to protect blacks just as they would whites.
Moreover, everyone’s common law rights should be protected and applied evenhandedly—blacks, just as whites, have an equal right to sue and be sued, to give evidence, to enter into and enforce their contracts, and to sue in tort to be civilly compensated for harm done to them.
So if the Klan beats up a black guy or a white guy who wants to do business with blacks, the victims have a federal right to go into court and sue and collect tort damages just as the case would be if one white good old boy beat up another one. That’s what the most conservative “strict constructionist” or liberal “living constitutionalist” ought to agree that the equal protection clause, at the very least, was intended to mean.
The type of private violence that Jason refers to was indeed key to understanding the enforcement of Jim Crow. But it was also wholly within the reach of the 14th Amendment. But the solution that Congress opted for—outlawing wholly peaceful private discrimination as well—was not only not passed under the 14th Amendment (it couldn't have been), but instead relied on the Court’s specious post-Wickard v. Filburn understanding of the Commerce Clause, passing it there, under very shaky constitutional grounds.