Individual Rights or Civil Rights?
by Sheldon Richman, December 1995 (but still apt today)
Civil rights and affirmative action are getting their closest
in years. Unfortunately, the reexamination is not close enough. With
exception, no one is willing to go to the core of the issue and condemn
entire rotten regime for what it is massive violation of individual
rights. The way civil rights are defined today confronts us with a choice
between them and individual rights as conceived in the classical-liberal
tradition. In other words, the alternatives are phony rights and genuine
rights. The choice ought to be easy.
What is the core of civil rights as defined by the civil rights movement?
Simply this: the right not to be discriminated against. The entire civil
rights structure is dedicated to stamping out discrimination against
particular minority groups, including blacks and Hispanics, and women.
mission of stamping out such discrimination is so single-minded that
discrimination against unprotected groups is permissible, even
if that is what it takes to end discrimination against minorities.
We thus have a clash between two purported rights. On the one side is the
alleged right not to be discriminated against. On the other is the right
freedom of association. These rights cannot coexist. If freedom of
association reigns, an individual has a right to associate or not
using any standard he pleases. But if the right not to be discriminated
against reigns, such freedom of association cannot be allowed. The two
rights are directly opposed.
When two rights clash, at least one of the rights is counterfeit. How do
know? The very purpose of a rights theory is to avert conflict and
what individuals may and may not legitimately do. In philosophy, that
feature is known as compossibility. A rights theory that makes conflict
inevitable is worse than useless. It violates its very purpose for
The conflict between the right not to be discriminated against and the
to free association should be obvious. The right to free association is
logically entailed in the basic right to life or the right of
self-ownership. That right holds that an individual may do anything with
person and legitimately acquired property that does not involve the
initiation of force against another person. If an individual owns his
he has the right to choose with whom he'll deal. That right to choose
logically entails the right to use whatever criteria the person wishes.
rights are violated if he should abstain from dealing with a particular
person. That statement remains true regardless of what criteria he uses.
rights are violated, simply because no one has a right to deal with him
(absent, of course, some previous contractual obligation).
I said that the right to free association comes logically from the right
life. From where comes the right not to be discriminated against? Such a
right would forbid others from using certain criteria (race, etc.) in
deciding with whom to deal. But that would violate the right to free
association established above. The right not to be discriminated against
necessarily violates a logical implication of the right to life. So it
cannot itself be entailed by the right to life or else contradictory
"rights" would come from the same source. That is impossible. The right
to be discriminated against thus cannot be a true right. It is a pure
Any law that tells an individual he may not use race, ethnicity, sex or
any other criterion in deciding whom to hire, sell to, rent to, or
is a law that violates real rights.
That argument does not imply that any criterion is as good or rational as
any other. Irrational criteria can be chosen. Here we are discussing only
what a person has a right to do, not what is rational or good. A person
a right to be irrational as long as he violates no one else's rights. If
person has a right to be dealt with, no rights are violated even when
someone excludes that person on the basis of an irrational criterion.
But, the civil-rights advocate might say, how can black people enjoy the
right to life if employers won't hire them, landlords won't rent to them,
and restaurants won't serve them? Although those abstentions from action
not violate rights, they surely can affect a person's or group's quality
life. Decent, rational people would be disturbed by the inconvenience and
humiliation inflicted by such bigotry. The proper response, however, is
to interfere with the right to free association, which would set an
precedent. The best protection against what we may call economic bigotry
laissez-faire capitalism. The open, competitive marketplace assures that
members of minorities (and women) have the maximum number of options,
diluting the influence of bigots. For example, an employer who decides he
will not hire blacks leaves talented workers available to his
In an open economy, some of those workers may themselves become
entrepreneurs and hire the others. If because of discrimination the
are willing to work for less than whites, the firms hiring them will have
competitive edge over other firms. If the workers perform efficiently,
wages will soon rise, as other employers try to bid them away. (A lower
has been known even to induce a bigot to put aside his bigotry to save
Self-interest and the competitive marketplace will tend to remove
to talent and competence. But the marketplace must be kept free of
government interference. That is not usually the case. In South Africa,
apartheid began when bigoted white labor unions lobbied for an "equal pay
for equal work" law. Although it may sound like humanitarian legislation,
was specifically aimed at preventing black workers from underpricing
labor relative to white workers and winning contracts. In our country,
minimum-wage law is similar. By making unskilled (mostly minority) labor
artificially expensive, it assures that employers won't be tempted to use
in place of skilled union workers. Other regulation of the labor market,
such as licensing laws, have similar intentions and effects.
Sometimes governments explicitly restrict the economic activities of
targeted groups, such as blacks. The panoply of regulations known as Jim
Crow laws falls into that category. Such laws mandated separate
for black people, such as railroad cars. It is not usually appreciated
many white businessmen opposed those rules if for no other reason than
were costly. The famous case of Plessy v. Ferguson , in which a black man
tried to sit in a whites-only train car, was brought with the cooperation
the white railroad owner. (The U.S. Supreme Court, of course, refused to
strike down the law mandating "separate but equal" facilities.)
Most common of all, however, has been the state's segregation of its own
facilities. It was a municipal bus company in Montgomery, Alabama, that
required blacks to sit in the back. Government school districts confined
black children to ramshackle "schools." This brings us to a crucial
while private individuals have the right to associate on any terms they
wish, governments do not. Since governments do not discriminate when they
tax their citizens, they may not discriminate in the provision of
or hiring. (To be more precise, they may not discriminate irrationally
invidiously. Some discrimination is neither irrational nor invidious: for
example, discrimination against blind people in the hiring of Air Force
pilots or against women and homosexual men in military units. Were
government to abstain from rational discrimination, it would disserve the
people it has taxed.)
The principle is simple: private individuals may deal or not deal with
whomsoever they wish using any criteria they wish. Governments, because
coerce citizens to pay taxes, may not discriminate irrationally. This is
precisely the distinction that was not made in the 1964 Civil Rights Act.
That act struck down the Jim Crow laws in the Southern states, but it
outlawed private discrimination in hiring and so-called public
accommodations. Some opponents of the act, such as Senator Barry
favored barring discrimination by state governments but opposed banning
private discrimination. He predicted that the ban would turn inexorably
a mandate for quotas which is exactly what happened. The nature of the
case made it inevitable.
Civil rights today means government interference with the private,
noncoercive decisions of citizens. Thus, civil rights today are phony
rights. To the extent they are enforced, individual rights are
We cannot have both. The best protection of minorities is individual
and the free market they generate.
Mr. Richman is senior editor at the Cato Institute in Washington, D.C.,
and the author of Separating School & State: How to Liberate America's
Families, published by The Future of Freedom Foundation.