Thursday, September 23, 2004

Is There Such a Thing as Legal Discrimination?

According to an Encarta article about Detroit, the Motor City's population peaked at 1,850,000 in 1950. Its black population at the time was 16 percent of the total, that is, about 300,000. Detroit's population in 2000 was about 950,000, of which 81.6 percent -- about 776,000 -- were black. Thus the non-black population of Detroit dropped by almost 90 percent in 50 years. The "white flight" from Detroit made property there much cheaper than in the nearby suburbs to which whites were fleeing. And so, as low-income blacks filled much of the space left by whites, Detroit's black population increased by more than 250 percent during the same 50 years.

The white-flight phenomenon leads me to ask two questions: Was the desertion of Detroit (and other large Northern cities) by non-blacks a form of discrimination? If so, was that discrimination legal? I ask because Tim Sandefur in two recent posts at Freespace (here and here), has left me wondering whether there is any legal scope for widespread acts of racial discrimination.

It's clear to me that non-blacks were discriminatory in leaving Detroit. I grew up in Michigan. I can vouch for its combination of Northern charm and Southern racial attitudes. Detroit's whites might have rationalized their flight as a response to the greater prevalence of crime and drugs in the black community, but white flight stemmed from a visceral dislike on the part of most whites for living near blacks. (Detroit is, of course, only emblematic of racial attitudes and their consequences throughout the North.) The greater prevalence of crime and drug use among blacks gave whites an excuse for fleeing Detroit, but the underlying cause of white flight was old-fashioned bigotry.

Now the question is whether white flight was legal. Actually, I have no doubt that it was perfectly legal for the vast majority of Detroit's white citizens to abandon that city and practically ghetto-ize it. Each departing household simply made a voluntary decision to leave and each arriving household simply made a voluntary decision to move in. But Sandefur's posts lead me to wonder at what point it becomes illegal for the majority of citizens to act similarly out of racial prejudice. Here's Sandefur, writing about the refusal of most Southern whites to trade with Southern blacks in the days of legal segregation:

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....

[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.
These statements are consistent with an earlier post, in which Sandefur says:
As Frederick Douglass pointed out in his speech on the Civil Rights Cases, what sense does it make that we say "the state may not do X, if we say all of the citizens may do X"?
Thus, if I've followed Sandefur's reasoning correctly, it seems to be this:

1. A collective agreement amounts to state action.

2. The state cannot act to deny an explicit constitutional right or any other fundamental right, say, the right to engage in commerce.

3. Therefore, the widespread refusal of whites to refuse to engage in commerce with blacks is an unlawful state action.

The linchpin of Sandefur's argument is his conflation of collective agreements and state action, a conflation that he traces to Frederick Douglass. Sandefur's argument collapses if not all collective agreements amount to state action. Well, his argument collapses because:

1. It's true that the state arises out a collective agreement of its citizens (or their chosen representatives).

2. But 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.

3. Therefore, 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.

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.

Favorite Posts: Affirmative Action and Race