regardless of how many citizens agree on a particular subject, that agreement is not tantamount to state action if the subject lies outside the power granted the state. Enforcement of an extra-constitutional collective agreement rests on the voluntary submission of citizens to that agreement. The same citizens who entered the collective agreement may dissolve it piecemeal by abandoning it, one or a few at a time, whereas they cannot similarly revoke a power specifically granted the state.My post was prompted by two recent posts written by Tim Sandefur of Freespace. Sandefur has replied at length, and constructively, here. You should read all of it. I'm just going to touch on some of the points salient to my argument.
I conclude that the state has no business telling its citizens how they may or may not carry their racial attitudes into the conduct of their affairs, as long as that conduct is passive -- that is, as long as it takes such forms as not buying from, hiring, or otherwise associating with members of certain groups. I say that not out of bigotry -- I long ago outgrew the attitudes of my native State -- but because we have gone far beyond the abolition of slavery and the granting of equal civil rights. We have practically repudiated freedom of association, we have severely undermined property rights, and -- more lately with speech codes and hate-crime laws -- we have entered an early stage of thought policing.
In sum, liberty is being vanquished in the name of liberty. It wouldn't be happening if collective agreements were, indeed, tantamount to state action.
Sandefur notes that I took him "a bit more strongly" than he intended on the subject of collective agreement as a form of state action. He says:
First, I’m not trying to make an “argument,” since I’ve tried to make clear that I don’t really know what I think on this issue. My only point is that I’m troubled by the too-easy distinction between state-action discrimination (bad) and everyone-in-society-agreeing-privately discrimination (perfectly okay). One reason I am troubled by that is because I think if everyone in society agrees to something, the distinction between that and state action becomes illusory....So there’s no “argument”...just a qualm, and [the author of Liberty Corner] has done nothing to ease my concern.Fair enough. Sandefur still has a qualm where I have none.
Sandefur goes on, in an aside, to question an antecedent argument to the conclusion I restated above, namely, that
the collective agreement that creates the state doesn't give the state unlimited power of action. In fact it specifically limits the state's power of action. The citizens of the state may -- and do -- withhold certain powers from the state, for the private exercise of citizens.In response to that proposition Sandefur says:
First, it is true that the social compact doesn’t give the state unlimited power, but we ought to carefully distinguish between the moral and the constitutional limits on the state. The social compact is only limited by moral constraints—-that is, the people may write any social compact they wish so long as it gives the state no power that exceeds their moral authority. Constitutional limits then come on top of those limits. It is in the realm of Constitutional limits that the people withhold powers from the state for the private exercise of citizens (or to vest those powers in a different sovereign). At the level of moral limits on the social compact, the people do not withhold powers for their own private exercise, because they have no right to exercise those powers which are withheld. In other words, the people in forming the social compact are limited only by moral constraints-—they can’t steal, can’t murder, and can’t make a government that does these things. They don’t withhold these powers for their own private exercise.There are subtleties in that statement which I don't grasp, such as the distinction between moral and constitutional constraints, and whence moral constraints flow. Nevertheless, the statement seems to imply something like this: The state can't have the power to allow slaveholding because slaveholding is an immoral power that the people themselves cannot exercise. But, as Sandefur says elsewhere in his post,
Many slaveowners prior to the [Civil W]ar pointed out that there just weren’t any laws that created slavery. It was closer to everyone-in-society-agreeing-privately discrimination than it was to state-action discrimination.So, it seems to me that the people can exercise moral authority (or, in this case, immoral authority) that's outside the scope of the state's power. Before the passage of the Thirteenth Amendment the (Southern white) people reserved the power to hold slaves and the state didn't have the power to deprive them of slaves. (If I have this wrong, I'm sure I'll hear promptly from Sandefur. And I'll gladly correct it.)
Now Sandefur comes to my point that a collective agreement is not tantamount to state action if the subject of the agreement lies outside the power granted the state. Sandefur says:
Perhaps. But...sometimes that line [between a private, collective agreement and state action] is not so obvious. Or, my favorite conundrum, the situation of tenant farmers in Mississippi, whose white landlords would immediately evict them if they dared register to vote. Now, this attitude was unanimous among the white landlords....[I]s [the author of Liberty Corner] willing to say that he has no problem with such a practice?I do have a serious problem with such a practice. As far as I'm concerned it was an extortionate denial of a civil liberty granted under the Fourteenth Amendment. But the extortionate denial of the right to vote is a particular manifestation of racial discrimination, which the people (I believe) had empowered the state to deal with through the Fourteenth Amendment. That the state didn't deal with it until the 1960s was due a failure on the part of the state to exercise a granted power, not to a lack of power.
But racial discrimination, in its broader manifestations (e.g., refusal to live near blacks) is neither an action of the state nor an action that the state can prohibit, per se. The state can be -- and has been -- empowered to deal with specific manifestations of racial discrimination, manifestations that deprive blacks of the constitutional rights conferred on them by the Thirteenth and Fourteen Amendments, among them the right to vote.
Sandefur concludes by saying,
I’m not trying to offer a systematic (or even coherent!) theoretical* defense of government intervention to correct racist outcomes. I just think that even in the absence of an explicit agreement...private action can be tantamount to state action. That’s why the Civil Rights Acts strike down “patterns and practices” as well as explicit policies.There's the crux of the issue. Sandefur believes private action can be tantamount to state action. I disagree, for the reasons I have spelled out in my previous post on the subject and in this one. I further disagree with the validity of Harlan's Thirteenth Amendment argument, and with the striking down of "patterns and practices" of racial discrimination. The use of such broad terms as "badges of servitude" and "patterns and practices" gives the state license to butt into private affairs at will.
*-I would definitely offer a systematic constitutional defense of such intervention. I think Harlan’s 13th Amendment argument regarding slavery and badges of servitude is absolutely right and that attacks on Jim Crow should have been made under that Amendment, or perhaps the privileges or immunities clause of the 14th amendment, and not under the commerce clause.
Favorite Posts: Affirmative Action and Race
