Rand Paul has criticized the Civil Rights Act of 1964 but has stated he would still have voted for it. He has been taken to task for this by the Wall Street Journal and members of his own party.
The Civil Rights Act of 1964 achieved one thing that was great and one that has been disastrous. It rightly prohibited racial segregation and voter suppression, forms of forcible or coercive discrimination. But in Title VII on employment it wrongly prohibited non-coercive or peaceful discrimination.
From the point of view of moral principle, there is a fundamental difference between forcible or coercive discrimination and peaceful or non-coercive discrimination. Coercive discrimination consists in discrimination by the use of physical force or the threat of force. Slavery, lynching, segregation, the "black codes," the "Jim Crow" laws, voter suppression and the notorious activities of the Ku Klux Klan were all outrageously wrong because they employed force or the threat of force on innocent people, or in the case of lynching, people who at the least deserved a fair trial. Discrimination by the use of coercion is always unjust unless there are special circumstances that make coercion justifiable, for example to prevent or punish crime. Outside of those circumstances it is wrong and always has been wrong, long before the Civil Rights Act of 1964, not because discrimination as such is wrong (the Civil Rights Act expressly allows it against communists; many legal systems allow reverse discrimination), but because it is coercive, in circumstances where coercion is not justified.
By peaceful discrimination I mean discrimination practiced without the use of force or the threat of force. This includes discrimination in employment, and generally in the course of business or the market, as well as in private relationships. Peaceful discrimination is not unjust and never has been, despite the Civil Rights Act of 1964. For it causes no injury. The person who is discriminated against peacefully is no worse off afterwards than before. He or she has not been robbed or deprived of any good he possessed. To discriminate against somebody peacefully it is not necessary to perform any action regarding that person at all: all that is necessary is to provide a benefit to somebody else. Justice is not identical with fairness. It is true that all unjust actions are unfair: the criminal who robs you is scarcely treating you as an equal. But the proposition cannot be inverted: unfair or unequal treatment is by no means necessarily unjust.
Although Rand Paul apparently attempted, as others have sometimes done, to make a distinction between public and private discrimination, this does not work well because, as the example of the Klan illustrates, coercive discrimination is not limited to discrimination practiced by government, but can equally include actions of private individuals or groups. The important distinction to make is that between coercion and noncoercion.
The Swiss pharmaceutical company Novartis recently in a New York court was fined $3.3 million and penalized a further $250 million for gender discrimination. An important part of the evidence against them was that they paid their salesmen on average $ 75 a month more than the women. This benefit to the men was treated as if it were an injury to the women. But that turns justice upside down. The company created the women's jobs, which they evidently considered a benefit, since they applied for them. If at the time they applied for these jobs they had asked whether the men were paid more, and had stated they would not apply if that were true, and had been assured it was not true, but it turned out to be true, they would perhaps have genuine grounds for a grievance. But to be aggrieved because others are receiving a benefit is mere envy. It is a verdict that Christians at least should be skeptical about, in the light of the Gospel of Matthew, Chapter 20. Christ there tells the well-known story of the householder who went out in the morning looking for workers for his vineyard, and hired some at an agreed wage. Later in the day he went out and hired others, and later still others. At the end of the day he paid them in reverse order, giving the last-comers as much as the first, who thereupon complained of the unfairness, feeling they were entitled to more than the late-comers, who had not worked so long. But he answered that he had done them no wrong, for he paid them what they agreed to. "Take what belongs to you and go... Am I not allowed to do what I choose with what belongs to me? Or do you begrudge my generosity?"
What about discrimination at lunch counters and other such public places? it is asked. This is noncoercive and should not be prohibited.
Enterprises that practice peaceful discrimination can always be publicized and boycotted. But a nation that proclaims itself a free country should act like one.
The original purpose of the civil rights movement was directed against coercive discrimination: segregation, lynching, voter suppression, the Klan, and the like. The question of discrimination in employment was not part of that. It was introduced through pressure from the labor movement, largely through the efforts of one Asa Philip Randolph, who was active in organizing black trade unions.
That said, the prohibition of peaceful discrimination on the ground of race has perhaps caused the least harm of any such prohibition to our society. In 1964 there was strong public support for it, even if there was also strong opposition. But the prohibition of peaceful discrimination on the ground of sex is an altogether different case. At the time of the Act there was very little public support for it. It was added to the bill by the chairman of the House Rules Committee, Democrat Howard W. Smith of Virginia, who opposed the civil rights bill and aimed to sink it by this amendment, according to the testimony of a colleague at the time, for he reckoned that no one would then vote for it. The amended bill was passed only because of arm-twisting by President Lyndon Johnson.
This provision has given women a legal status which protects them by the threat of force from natural competition by men. We now see some of the results of this coercive privileging in almost every area of society. More women now have jobs than men; more women are in college than men; the family, the most basic institution of society,which, as Darwin pointed out, owes its origin to the division of labor between the sexes, has to a considerable extent been destroyed; and consequently birth rates throughout the Western world have fallen drastically below the replacement level. No doubt there are additional reasons for these developments, but it can scarcely be denied that Title VII of the Civil Rights Act of 1964 has contributed to them substantially.
This analysis is developed further in Prof. Burke's book The Concept of Justice, due to be published next March by Continuum.
The Wynnewood Institute is an independent, academic, non-partisan and non-profit organization with 501 (c)(3) status. Thomas Patrick Burke, D.Phil., D.Th., is its President. See our website at www.wynnewood.org.
