Monday, May 24, 2010

private business compromise

Due to Rand Paul, this issue of rights of private businesses, or the line between public and private domains, has been a hot topic lately.

The libertarian part of me doesn't want to interfere with anyone's decisions, however misguided, about who to do business with. 99.9% of the time any business plan that includes refusing to sell to a group of people will fail miserably anyway.

The realist in me realizes that in certain cases, social pressures and culture completely outweigh market mechanisms, so that discrimination can be pervasive and permanent without some kind of intervention. Segregation prior to the Civil Rights Act of 1964 is one example. The only other one that I can think of is the case of a few pharmacies in the middle of the country who refuse to sell contraceptives or the morning after pill.

So how to reconcile a desire not to interfere in people's choices and these occasional "market failures" when those failures are very bad for society? Shockingly this hasn't even been asked; people are either dogmatically against any government intervention or dogmatically opposed to allowing any kind of discrimination, public or private, about who to sell to or what to sell (as long as the item in question is compatible with their broader paternalistic goals. You won't see them complaining about grocers who refuse to sell inorganic produce or processed cheese food, even in extremely impoverished neighborhoods where financial constraints completely trump those long-term probabilistic health considerations among customers. Not that any entrepreneur would be so self-defeating as to actually attempt such a thing...)

On the other side, it's not just about bigoted choices about who to interact with. If I were morally nauseated by the idea of abortion, I would be irate if forced to perform one as a doctor or to sell RU-486 as a pharmacist. For some people, those desires are so strong that it's reasonable to guess (certainly if erring on the side of freedom, as should always be the case...) that these people would not have chosen to enter their profession if they had known they would be forced to abandon their principles. I am very pro-choice, yet even I can empathize enough to stay true to my ideal of freedom of private, victimless human interactions.

But the two ideological extremes aren't the only possibility. Why not incorporate a grandfather clause into anti-discrimination legislation? Only new businesses would be required to follow the new guidelines. Anyone entering that profession would do so with the understanding that they would be required to perform certain services, and can choose another path if they strongly object to them. That kind of regulation is more palatable to my libertarian sensibilities, but still instigates largescale cultural change as assimilation occurs in all public venues and in a strictly increasing proportion of private venues. As the tide turns, the remainder won't even want to stick to their old ways.

It's kind of unfortunate that this issue is being discussed in the context of the civil rights movement, which at this point the entire country is united in favor of. Anyone who suggests that people should be allowed to make their own stupid mistakes under the right to life, liberty, the pursuit of happiness, and to squander that opportunity with doomed business practices, is therefore instantly labelled racist. The paternalists never even get to the point of considering whether it might be worthwhile to ponder the issue from the perspective of business owners whose moral compasses don't coincide with the cultural mood of the moment.

Steven Landsburg says this particularly well. No, Rand Paul is not nostalgic for the confederacy. He's just too honest for his own good at the moment.

1 comment:

masonium said...

I guess we differ in that I have no problem sacrificing certain individual 'liberties' for (what we perceive as) societal benefit. I mean, every society worth mentioning limits 'liberty' in some way, such as forbidding murder and theft. (You mention private victimless interaction, for which it's fairly easy to be libertarian about, but the discrimination and RU-486 cases definitely don't apply anyway). To me, it's only a question of which ones we sacrifice, not if we should sacrifice any at all.

In the particular case that Rand Paul (accidentally?) brought up, I have no qualms about saying that society as a whole is much better off prohibiting discrimination in private businesses, even at the expense of the individual 'freedom' to discriminate.

I don't think the 'grandfather clause' method works at all, but for the opposite reason of what you suggest. (I typically shudder at the term 'grandfather clause' anyway, but that's another story). At the time, it would've made no difference in places where the CRA '64 mattered most, since any individual new non-discriminatory business would be trounced in the market.

Also, if Rand Paul was "too honest" before (as if that were a bad thing), he definitely isn't now. He recently relented, saying that the CRA '64 was all good, even the public accommodations part.