Über die Autorin bzw. den Autor

Andrew Koppelman is John Paul Stevens Professor of Law and professor of political science at Northwestern University School of Law. He lives in Evanston, IL. Tobias Barrington Wolff is professor of law, University of Pennsylvania Law School. He lives in Philadelphia.

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A Right to Discriminate?

Yale University Press

Contents

Acknowledgments.............................................................................viiIntroduction................................................................................ix1 Origins of the Right to Exclude...........................................................12 Signs of the Times: The Dale Opinion......................................................253 The Solomon Amendment Litigation and Other Consequences of Dale...........................434 The Neolibertarian Proposal...............................................................635 Is the BSA Being as Bad as Racists?: Judging the BSA's Antigay Policy.....................816 Why Regulate the BSA?.....................................................................105Notes.......................................................................................121Index.......................................................................................169

Chapter One

This book examines the idea that there is a freedom of association that creates a right to resist antidiscrimination law. Where did this idea come from? There are two answers to this question because the idea of a right to exclude has two sources. One of these, the older of the two, is broadly libertarian. The newer source is narrower, rooted in the First Amendment's protection of free speech.

The earlier, libertarian rationale implies such a broad right to exclude that it is inconsistent with nearly any antidiscrimination law. Some courts adopted it, but this was an innovation of the Civil War period, devised specifically in order to authorize discrimination against African Americans. It has never transcended its maculate provenance. The free speech rationale is not so tainted and can provide a basis for limiting antidiscrimination law. But this basis generates a fairly narrow right to exclude.

The Libertarian Right to Exclude

The central claim of libertarianism, the philosophy of a minimal, laissez-faire state, is that government ought not to intervene in the private sector because to do so violates citizens' rights, because government cannot be trusted with such powers, or because the unregulated private sector is already the best of all possible worlds. Libertarianism in its classic form-call it "paleolibertarianism," to distinguish it from the neolibertarianism of the contemporary writers whom I address in Chapter 4-rests on three claims, which I will call "Rights," "Distrust," and "Optimism."

The Rights claim is that laws against discrimination are unjust regardless of what the consequences of discrimination might be. It resembles Kantian deontology in that it insists on economic rights without depending on predictions about the workings of an unregulated economy.

It begins with the premise that law should not interfere with liberty except to prevent violations of rights. Interferences for any reason other than the prevention of rights violations are themselves rights violations. When A associates with B but refuses to associate with ITLITL, that association does not violate any rights of ITLITL. No one has a right to compel others to associate with another one. Therefore, A has a right not to associate with ITLITL. It follows that the law violates A's rights when it penalizes A for his or her refusal to associate with ITLITL. When a state violates people's rights, it fails to show them the respect to which they are entitled.

Theories of this kind are familiar in the liberal tradition, but they rest on a remarkably constricted account of the human interests that the state can legitimately protect. A society could, on this account, have a permanent outcast population in a state of chronic economic misery, vulnerable to ruthless exploitation, and the state would have no power to remedy this situation, even if the culture of prejudice that is maintained thereby is one that itself produces numerous rights violations. The social world that libertarianism envisions is not a society of free and equal persons. Rather, it resembles feudalism: the poor and weak must place themselves under the protection of the rich and strong, on whatever terms the latter are willing to grant.

It is bizarre to think that respect for people demands such person-destroying results. Not only does this account fetishize a historically contingent distribution of entitlements; it also misreads the history it fetishizes. As we shall see shortly, the idea that property entails an absolute right to discriminate is not embedded in the common law from time immemorial but is an artifact of the Jim Crow era. Immanuel Kant, who is the wellspring of such rights-based arguments, was not himself so indifferent to considerations of human welfare.

Another strand of libertarian thought does attend to consequences. It rests on two interdependent claims: that government is not to be trusted (Distrust), and that an unregulated capitalist economy produces good results (Optimism). The claims are interdependent because the strength of each depends on that of the other: even a largely self-regulating economy might usefully be tinkered with by a sufficiently wise and trustworthy government, whereas if an unregulated economy leads to disaster, even an incompetent and corrupt regulator may be better than no regulator at all.

Both claims are exaggerated. The idea that capitalist economies can regulate themselves may have been plausible in John Locke's time, but it is hardly so in ours. Unregulated markets do not distribute goods in a just way. Their capacity to satisfy people's preferences is routinely hamstrung by monopolies, externalities, collective action problems, information asymmetries, and other market failures. They also produce aggregate effects that no one wants, such as vicious cycles of boom and bust. This is why libertarianism has been such a flop. No unregulated economy exists in any modern industrial country. And government has not proved to be all that untrustworthy. After the judiciary stopped reading libertarianism into the Constitution in the 1930s, the U.S. economy did not collapse, but rather was able to rely on its economic output to win World War II and the Cold War. Central management of the money supply has produced a marked softening of the business cycle. Libertarians worry about regulators being captured by powerful interests, but much of modern regulation manages to pursue the public interest. The classic tales of wasteful overregulation that are repeatedly cited in the media have been proved apocryphal. As a general matter, experience falsifies both Optimism and Distrust.

They meet the same fate when they are applied to antidiscrimination law. Richard Epstein has argued that consumer welfare would be maximized if a right to discriminate were allowed. Epstein's optimism about the fate of minorities in unrestricted markets is one that is supported neither by history nor by economic theory. Once more, the premise of Distrust is called into question by the success of anti-discrimination laws in dismantling discriminatory markets and opening economic opportunities to black citizens. Before the Civil Rights Act of 1964, unregulated markets had perpetuated...