I said yesterday that the 1964 Civil Rights Law (forbidding racial discrimination in places of public accommodation) infringes on property rights and that all reasonable people ought to be disturbed by that, even if their ultimate judgment is that the benefits of the law outweigh its costs.
Our commenter Jonathan Pryor responded, in effect, as follows (I am paraphrasing):
When you open a restaurant and announce that you won’t serve blacks, you’re not just announcing that you won’t serve blacks. Instead, you’re implicitly announcing that whenever a black person comes in and asks for service, you’re going to call the police and ask the taxpayers to subsidize the cost of your taste for discrimination. You have no property right to those taxpayer dollars.
My first reaction was: This is an excellent point, which I haven’t seen raised before. For the most part, that’s still my reaction. Still, this argument cannot be definitive as a matter of principle, because the same argument applies in many cases where we clearly reject its conclusion. After all, when you open a restaurant, you’re implicitly announcing that whenever a naked person asks for service you’re going to call the police and ask the taxpayers to cover the cost of removal. For that matter, you’re going to call the police every time you get robbed. But we don’t conclude that it should always be illegal to open a restaurant.
The difference between the black person and the naked person, presumably, is that on any given day there are a lot more black people than naked people looking to have lunch (and a lot more people looking to have lunch than to rob the lunch counter) so the communalized enforcement costs are much greater in the case of blacks. In other words, if you’re going to rest your case on Pryor’s argument, you are arguing about differences in degree, not differences in kind.
Why am I allowed to exclude unwanted intruders from my home? On the Pryor argument, it’s because there aren’t enough potential intruders to make enforcement an undue burden on my neighbors, not because my property rights are sacrosanct. Presumably this could also justify the “public accommodation” provision of the 1964 law. After all, private membership-only golf courses also call the police when non-members try to intrude, so in principle Pryor’s argument would apply just as well to the golf course as to the lunch counter. To justify the legal distinction, once again one must appeal to differences in the frequency of the various sorts of incidents.
I do want to reiterate that I think Pryor’s argument is a good one, and there are cases where I think it clearly applies. Should I be allowed to store a large barrel of Hershey bars on my front lawn and call the police every time a child filches one? Probably not. So the question is: Is a whites-only restaurant likely to attract enough unwanted guests to fall into the same category as a barrel of candy?
My first thought was no, because the community is generally pretty good at letting guests know when they’re unwanted. (Readers my age will remember the restaurant owner Lester Maddox, who rose to fame and then to the governership of Georgia after handing out axe handles to his regular customers so they could assist him in discouraging unwanted guests.) But on second thought, I guess that a habit of driving customers away with axe handles is still pretty likely to involve the police.
One more point, though, and it’s an important one: On Pryor’s analysis, the problem is caused not so much by the whites-only restaurant as by the black intruders. He assumes that the former will inevitably call forth the latter, but that need not be the case. What if the legal penalty for entering the wrong restaurant were so severe, and hence such an effective deterrent, that you never had to enforce it? That protects property rights and relieves the burden on the taxpayers.
So if I accept Pryor’s argument, I am led to conclude that we ought to do one of two things: Either prohibit whites-only restaurants or prescribe capital punishment for blacks who try to enter them. It remains to be argued why I should prefer the former.