Legal Commentary

More on Libertarianism and Antidiscrimination Laws

By David Bernstein

Sheldon Richman responds to my Cato Unbound essay here, criticizing my position as being insufficiently libertarian, although he otherwise shares many of my underlying premises.

And Jason Kuznicki responds to my essay here, supporting Title II from a Hayekian perspective, while, unlike me, expressing no noticeable qualms about the vast expansion of the antidiscrimination edifice since 1964.

In other words, I am in the unusual position of being a moderate!

I should note that when I originally posted a link to my essay, some of our liberal VC commenters responded that they were unconvinced. So let me note that my assignment was to write an essay about ?how libertarians should approach antidiscrimination laws.? In other words, my primary target audience was readers who already share the basic libertarian premise of a strong presumption against government interference in private market arrangements.

I was aware that other readers would be interested in the essay as well, and tried to correct some errors and misconceptions I?ve seen in left-wing blog posts about libertarianism and antidiscrimination laws. I explained what the general libertarianism position is, how it?s been misconstrued, and why the libertarian position is not any more dogmatic than, say, the liberal position on free speech.

That said, I wouldn?t expect any statist-leaning liberal to be persuaded by my essay that the libertarian position is correct. Strong opposition to any and all forms of (at least politically incorrect) discrimination is a defining aspect of modern American liberalism, and liberals do not share libertarians? strong presumption against government action to right perceived social wrongs. If I were to try to persuade liberals to be more libertarian, pretty much the last place I?d start would be with antidiscrimination laws, given their centrality to modern liberals? self-conception. (And, moreover, I point out in my essay that I think that from both a moral and tactical perspective, opposition to basic private sector antidiscrimination legislation should be rather low on the libertarian priority list. I note that if there were a sudden popular move to repeal antidiscrimination legislation unaccompanied by broader libertarian political trends, it would suggest that opposition to such laws came arose from hostility to minority groups, not from opposition to Big Government.)

So, if you are a liberal reader hostile to libertarianism, feel free to read these essays to get a better sense of the range of libertarian positions on antidiscrimination laws, and the rationales for these positions. But I don?t think anyone is trying to persuade you to abandon the core of your ideology with a 2,000 word essay on a limited topic.

Full post as published by The Volokh Conspiracy on June 21, 2010 (boomark / email).