Civil Rights and Wrongs

I had planned to get back to our friend the absent-minded driver today, but yesterday’s post on Rand Paul garnered (at least) one comment so good that it deserves to be highlighted.

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.

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49 Responses to “Civil Rights and Wrongs”


  1. 1 1 James Miller

    The capital punishment approach is inefficient because it would cause blacks to put too much effort into not mistakenly entering a white-only restaurant.

    Also, many owners of whites-only restaurants would probably get pleasure from harming black people and so would have an incentive to falsely claim that a black person entered their restaurant if this would cause the black person to pay a high penalty.

  2. 2 2 Bob

    1. To what extent is the police obligated to make a real effort to enforce the law?

    2. The “naked customer” counter-example was the thought that occurred to me too, to be followed by a “modest clothing” requirement.

  3. 3 3 Biopolitical

    If law enforcing were private, owners whose property were more costly to protect would probably have to pay higher fees. This would take care of “undue burdens.” Intellectual property rights are another case in point.

  4. 4 4 Bennett Haselton

    I think that in addition to asking “Does this entice people to break the law and generate law-enforcement costs?”, you also have to ask, “Does this entice people to break the law, who wouldn’t *otherwise* have gone on to break the law in a similar way at some point?”

    You’re implying that leaving a box of unguarded goodies on your lawn would be a socially wasteful use of law-enforcement resources, because it entices people to steal them. But the kind of person who steals the unguarded goods from your lawn, might have gone on to steal something else later in life, or break some other law. All you did was time-shift the crime (and the law enforcement costs) to an earlier date. Possibly you reduced the social costs by intervening earlier in the criminal’s career.

    Consider the law-enforcement-operated http://www.baitcar.com/ . Wouldn’t it be a waste of time to bait people into stealing cars, unless they’re the kind of people who probably would have stolen a car, or committed some other crime, anyway?

    You could say the same about private residences and golf courses — the kind of person who trespasses on those, is probably willing to break other laws and impose other social costs on people.

    On the other hand, if you hang a “No blacks allowed” sign in your restaurant, that will attract many non-violent protestors who probably wouldn’t have committed any other serious crimes. So then you really are generating new law enforcement costs.

  5. 5 5 Al

    “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?”

    Didn’t you argue in one of your books (I forget whether it was The Armchair Economist or More Sex is Safer Sex) that in order for a severe penalty (i.e. the death penalty) to be an effective deterrent you had to, at least occasionally, enforce it? If people know that you never enforce it then it won’t work as a deterrent.

    “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.”

    It seems unfair to deal out such harsh punishment to people (in this case blacks) for offending bigots preferences. Surely you could, by the same logic, execute bigots on the basis that they offend your and my preferences? Your property rights are sacrosanct; you have no such right to not be offended and neither do bigots. (Apologies for the double-negative.)

    Of course, this is only if you accept Pryor’s argument as definitive.

  6. 6 6 Ben

    Wow. I reckon it will be less than 2 hours before Godwin’s law is invoked.

    For the benefit of passers-by, I am pretty sure that Steven doesn’t want to lynch Blacks who go into the wrong restaurant – he wants us to articulate the reasons *why* we think they should not be lynched, or at least why they should not be excluded from restaurants.

    On the point of the death penalty for trespassing, I oppose all punishments which are so out of proportion to the offence, because I reject the utilitarian calculus implied. The justification for punishment is not welfare, but justice, and it is unjust to impose a punishment which the nature of the crime does not make deserved. If a rule cannot be enforced without imposing a manifestly unjust punishment, as in this modest proposal, that rule must be abandoned. So I reject the hypothetical on that basis.

    To the real point: We allow people to discriminate in their private lives, even if we disagree, because it is a private and personal act. Discriminating on a small scale in private is different in kind from doing it on a large scale and in public, so while the former is as of right, this does not imply that the latter is also.

    What makes it different in kind?

    On a small scale, such as your close friends and associates, housemates and so forth, you are required to associate on a regular and personal basis, not just in a formal transaction. It may be intolerable to do this if you have an irrational dislike of a person, no matter how unjust or ill-founded that dislike is.

    On a large scale, you don’t have to know the people personally, or if you are the CEO of a large company, even ever meet them. The people who have to associate with the people you dislike are employees who are being paid to do so and can in any case choose another place of work, or self-employment. As a boss you simply have to say “either get on or get out” just as you would with a personal enmity which was not based on race or gender.

    So to me, we must accept discrimination which occurs for example in refusing to let a room in a person’s house to a lodger, since that person will have to associate personally with the lodger on a regular basis – it is not a transaction which can be made impersonal (*). However if a person runs a small hotel and the association is limited to waiting on table, that association can be made impersonal, so compelling that association is different in kind, and I argue justified.

    (Compare to Hayek’s distinction between personal modes of relation and economic modes – he argued (from memory, I can’t find the reference) that personal modes are not adequate foundation for an economic system because they don’t scale up or work with strangers, wheras economic modes, such as contracts and recourse to the law, are not adequate for personal relations because people simply find them intolerable on a personal level – they require love, friendship and all that good stuff).

    (*) (we must perforce accept such discrimination, as it will occur anyway – the only action of a law forbidding it will be to prevent people from admitting to it.)

  7. 7 7 AC

    This seems to be one of Mr. Landsburg’s go-to arguments, a severe punishment to prevent certain behaviors. You’re too smart to keep going there, I realize you like contrarian arguments, but it doesn’t convince anyone.

  8. 8 8 Harold

    Your examples are missing a huge point. When a person walks about naked, they are breaking the law on so called “decency”. Calling the police is appropriate. When a person robs your store, he is breaking the law. It is appropriate to call the police. This is why the police are there. Being black is not a crime. Entering a restaurant is not a crime. This is a completely different situation. The difference between the black person and a naked person is not that there are more black people, but that the naked person is breaking the law. The naked person can also choose to put clothes on. There is a difference of kind, not just a difference of degree. So far the argument can stand as a matter of principle.

    However, as an owner, I believe you have the legal right to refuse entry to any individual for whatever reason or no reason (apart from anti-discrimination laws). I presume you have the right to call the police to assist in the ejection of such an individual. Perhaps someone with fuller understanding of the law could clarify. So perhaps the argument does not fully stand. We do expect the police to go to the aid of owners, even when there is no good reason except for the owners preference. So what is the difference between a black person and the brother-in-law that you hate, or the stranger to whom you take an irrational dislike, or someone not fitting the dress code? Is there a difference of kind, or just degree?

    I think there is a diffenence in kind. You can advertise that your brother in law is banned, but he is a named individual, which surely is different in kind to a whole group identified by some external characteristic? You cannot advertise that the random-stranger-to-whom-you-take-an-irrational-dislike is banned, because you do not know who he is. Robbers and nudists are different in kind, because they are law-breakers. People with no shoes or no shirts are different in kind, because they can go and put shoes or shirt on. I suppose nudists fit into this last catagory also, along with robbers who are not actually robbing you at the time.

    By opening a restaurant with a no blacks rule, you are putting a burden on enforcement which is different in kind from any these other catagories.

    I am not sure about private clubs. And I do not think this is the main reason you should be prevented from having the “no blacks” rule, but perhaps it is better than you thought.

  9. 9 9 Steve Landsburg

    Harold: The difference between the black person and a naked person is not that there are more black people, but that the naked person is breaking the law.

    The whole question we’re trying to answer is whether it should be legal for black people to enter restaurants that have been declared white-only. The fact that it *is* legal has zero bearing on whether it *should* be legal.

  10. 10 10 Harold

    The only reason the black person is breaking the law is because of the expressed preference of the owner. That makes it different in kind from laws on exhibitionism or robbery, which exist regardless of the owners preference on who comes into his cafe. The owners preference creates the offence. We would have to pass a specific law for it to be equivalent.

    I don’t think anyone (or not many) wants to pass a law banning black people from restaurants, or even a specific law making a breach of an owners preference a criminal act. The only law that would be broken under current rules is not that of entering the restaurant, but refusing to leave. That is where the police would be involved. I am still not sure that a criminal act would have been committed even then. I am fairly sure that if a black person entered a whites only restaurant (were we to allow them), then left quietly when asked, he could not be picked up and prosecuted later by the police, as there would have been no crime committed. The same is not true of a streaker or robber. There is clearly a difference in kind.

  11. 11 11 Harold

    Or have I got the wrong end of the stick, and the proposal is to actually pass a law making in illegal for blacks to enter a whites only restaurant, rather than just to enforce the right of the owner to serve who they like?

  12. 12 12 naxan35

    I think Pryor’s argument really comes down to whether you do or do not have a right to call on the police to enforce things for you. I would say you *do* have a property right to the taxpayers’ dollars that fund such enforcement, but to see this, it helps to think of those dollars as not still in the taxpayers’ pockets. That’s what we signed up for when we delegated almost all of our personal enforcement power to the government in the first place.

    Once upon a time, if I needed to protect myself, I had to do it myself. But society was born. It evolved. People recognized that they could get a lot more done if they specialized. And now, in all but the most dire of circumstances, I am actually not personally allowed to defend my rights; I am supposed to call the police, who specialize in this matter. Hey, that’s fine with me. In fact it’s great! I don’t have to waste my time and money learning the art of swordplay or buying firearms…I can do other things instead. In fact the outcome is better too, if you care about rights, since now the people who are in the right tend to get their way rather than the people with more muscles. In exchange, everyone puts some money into the police fund, contingent on the promise that when they need enforcement power, they can call upon the community enforcement pool, no strings.

    Pryor’s argument basically asserts that the money in the pot belongs to the people who put it in, but really the money in the pot is owned by the community. It is a commons, and there may indeed be a tragedy of the commons, but is that the same thing as stealing property that belongs to others? If you are going to invoke property “rights” you should address this question. I put money into the pot; why is it that I’m not allowed to draw funds from it once in a while like everyone else? Is it stealing to put in $1000 and then take it back out? Is it stealing to put in $1000 and then take out $5000? Is it stealing to put in $1000 and then take out $50000 with low probability, taking out only $100 in actual expectation? People can argue if they like, but I don’t think any of this really belongs in the stealing category.

    Furthermore, your argument should not rest on the existence of free-riding, because who’s to say the restaurant owner IS free-riding? once upon a time if someone you didn’t like came into your restaurant, it was on you to make them leave. Now, you have signed away your legal right to make them leave, and in exchange you have gained the right to have other people make them leave. But calling on that legal right does not indicate that you wouldn’t personally have been willing to make them leave yourself, once upon a time.

    Evidently we have decided that the gains from this communal arrangement are worth it, and evidently we have also decided that the losses from free-riding are small enough so as to not make it worth charging people for police services. There is always the option of pricing police services, just as we charge for an ambulance trip to the hospital.

  13. 13 13 Sierra Black

    We routinely have to enforce crimes for which the deterrent is capital punishment, and doing so is incredibly expensive – a capital murder case routinely costs the state millions in legal fees, prison accommodations, security, etc.

    That should be enough of an argument for why you should prefer the prohibition on whites-only restaurants to your imagined capital punishment for black restaurant patrons.

    Leaving aside (as you have done) the obvious civil rights issues, here’s another good reason: Refusing to serve someone based on the color of their skin is anti-social. We have all kinds of laws on what you can and can’t do in a restaurant: you can’t shit on the customers’ tables, you can’t force people to order their meals at gunpoint, you can’t serve food you know to be toxic, or keep your kitchen in such disarray that you wind up poisoning people by mistake.

    There are entire volumes of rules and regulations prohibiting restaurant owners from engaging in unsafe or socially reprehensible behavior in their establishments. Prohibiting some people from entering based on the color of their skin seems to fall right into that category of “anti-social behavior the state regulates”.

  14. 14 14 Harold

    naxan35 said: “I think Pryor’s argument really comes down to whether you do or do not have a right to call on the police to enforce things for you”
    This is exactly it. You do not. The police have a duty to enforce the law. If your interests and the law co-incide, then it might appear they are doing it for you, but they are not. Society also has a system of civil laws, which citizens can take to court if they wish for an adjudication. The police in these situations are only interested in “keeping the peace”. They will assist in the ejection of an unwanted person from a restaurant, not because they are following the owner’s desires, but because it is the easiest way to keep the peace.

    I think that in the past there has been a bit too much of the police doing peoples enforcement for them.

    I may have the law issue completely wrong. Please let me know if I have.

    This means you have 3 options. 1) Ban whites only restaurants. 2) Allow owners to serve and not serve who they like. This may result in various disturbances of the peace which the police will be called on to sort out. I think the police would rather be doing other things. 3) Criminalise disobeying a publicised preference of a restaurant owner, with penalties up to death for disobeying. It then becomes the job of the police to track down and convict those who break the law. Be careful to check the adverts though- there may be a “no professors” rule in some.

    All this strengthens Steve’s case. If you open a restaurant and announce you will not serve blacks, then you are creating a situation where the police may be called. They will be there not to enforce your preference, but to keep the peace. They will probably decide that this is best done by ejecting the black person, thereby enfringing his rights and acting against his interests. The conflict here is only created by the co-incidence of owner and black person. If the black person never goes in, then the police need never be called. This could perhaps be done by making it a criminal offence with the death penalty, or not allowing whites only restaurants. In the latter case, when the police are called they must support the black person against the owner.

  15. 15 15 Harold

    The last paragraph above crept in by mistake

  16. 16 16 sconzey

    I disagree entirely with your analysis: Calling the police to eject a black person is fundamentally different from calling the police to eject a naked person — even assuming no exhibitionist laws in this particular State, because the taxpayers find the ejection of the nudist an acceptable use of their money, and the ejection of the black person not, and signal this preference by quietly paying their taxes/voting/remaining in that State.

    Additionally, suppose this shopkeeper does not actively eject the black person, but only ignores them. The current civil rights law in the US prohibits such behaviour, and yet it does not impose the enforcement costs criticised by Mr Pryor.

  17. 17 17 Benkyou Burito

    Steven–You have taken a great argument and then crafted a rationale to support it out of thin air that is little more than a strawman. You say:

    “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”

    and use that to support your position that: “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”

    When in fact one may rest their case on Pryors argument in purely qualitative terms. The two infractions (nude vs. black) are decidedly different in kind; much moreso than in degree.

    They are different primarily in the way the community or the greater community in which the restaurant owner chooses to do business views the infraction. For a number of reasons (sanitation, decency, wiener aversion, etc.) laws were passed requiring a certain degree of clothing in public. The same legal constituency has decided that similar denial of service to people based on their skin should be proscribed.

    Since the restaurant owner benefits from the services and structure provided by the body-politic it is reasonable to require it to abide by the laws of that body.

    Or do you think that the people of a state should not be able to set minimum standards of behavior in its citizenry?

    Or perhaps that we should not have enforced guidelines on such things as food-safety, building safety, semi-truck driver competency?

    These are all things that the community has decided are necessary for the efficient flow of commerce to take place in this country. Imagine if you had to test everything you bought for toxins yourself before you ate it.

    The reason we don’t let a restaurant owner discriminate against blacks is the same as why we don’t let him serve wine that has been cut with anti-freeze. Because allowing him to do so would cause external costs.

  18. 18 18 Neil

    Partly, this is about the limits of trespass. A restaurant owner who posts a “No blacks served” sign in effect is claiming that any black who enters the premises to be served is trespassing. Anyone familiar with the legal history of trespass knows the law recognizes all sorts of exceptions to trespass. The Civil Rights Act effectively states that if your property is open to whites without invitation, you cannot prosecute for trespass and use the authority of the state to remove a black who enters without invitation. There are ample precedents for such limits on trespass, so the Civil Rights Act does not represent any unusual infringement of property rights in that regard. Of course, it goes one step further–it states you must also serve said person if he has the means to pay or he can prosecute you.

  19. 19 19 Benkyou Burito

    Harold—The best option is to withdraw the occupancy permit of a business that does not allow every member of the locality the same right to enter. Similarly withdraw the EIN of businesses that refuse to consider every member of the public as an employment candidate. Withdraw Tax IDs of businesses who refuse to sell to all members of society. Withdraw the FDIC to banks who hold accounts for these businesses.

    Withhold every benefit and structural feature that is supported by tax-payers at large from businesses that exclude those same taxpayers.

  20. 20 20 GregS

    Someone said this above, but I must second it as it was my first reaction:
    The argument being discussed here is an argument in favor of privatizing the police. Making policing a publicly provided good means other people suddenly have a say in how you use your share. In practice, a lot of private businesses do employ their own security guards, so I’m not sure how often the police would really be involved in ejecting unwanted guests.
    A lot of commentors are being sloppy with their cost-benefit analysis. Saying “It’s just the right thing to do” or (even lamer) “It’s the law” adds nothing to the discussion, which is about whether or not you can force someone to do the right thing using the law. The cost of this anti-discrimination policy is “abridged property rights.” The benefit is that fewer people have their feelings hurt, and possibly a very small effect on the availability of services. (It’s hardly plausible that discrimination would be so rampant that people won’t get the goods and services they need. If that is anyone’s position, point to an example where customer discrimination, unsupported by the state, lasted a long time and caused people to be underserved.) Incidentally, the only example I’ve seen of a thoughtful cost-benefit analysis appears in “Fair Play.” Landsburg actually makes a plausible calculation of the cost of discrimination (in this case the cost of racial discrimination in hiring practices). I’ve seen no such attempt here, either in this thread of in yesterday’s thread.
    I’m guessing (which means I may well be wrong) that many of the proponents of anti-discrimination laws (with regard to customer discrimination) are in favor of another legal form of discrimination: the minimum wage law. That is a law that actually REQUIRES employers to discriminate against low-productivity employees, or employees with uncertain work histories. It essentially says, “You may not hire workers whose expected hourly productivity is below the minimum wage, unless you hire them due to confusion or charity.” I’m guessing the people who are discriminated against because of this law look a lot like the people who are “protected” by laws against customer discrimination.

  21. 21 21 Dan

    Calling the police to handle your discrimination? Not really necessary. Just do what most racist store owners do… let the black person sit at their table, but never actually give them the food and have all your other store customers give them nasty looks. No public cost is incurred. Black people would only come in to try and make a statement since they aren’t actually receiving any service.

    What about the other forms of racist businesses? What about a restaurant for “Members Only” that was only by “invitation”. This is how so many golf clubs have remained white only throughout the years.

    I’ve always thought it was an interesting moral dilemma: If all your customers are racist, you hire a black person and all your customers leave in protest. Can you fire the black person for scaring off all your customers? Both legally and morally I believe the answer is no, but it does raise some interesting questions about having control over one’s own business.

  22. 22 22 GregS

    I like Dan’s point. I had a similar thought…there’s a benefit to allowing racists store owners to identify themselves. I’d rather not have secret racists handling my food, or walk unwittingly into a store run by racist (and presumably unhelpful) employees.

  23. 23 23 Steve Landsburg

    GregS:

    Your entire comment is well worth reading, but the following passage is important enough (and relevant to enough of the other comments) that I want to pull it out and highlight it:

    A lot of commentors are being sloppy with their cost-benefit analysis. Saying “It’s just the right thing to do” or (even lamer) “It’s the law” adds nothing to the discussion, which is about whether or not you can force someone to do the right thing using the law.

  24. 24 24 Benkyou Burito

    Greg– Your point, “The benefit is that fewer people have their feelings hurt, and possibly a very small effect on the availability of services. (It’s hardly plausible that discrimination would be so rampant that people won’t get the goods and services they need”, I wonder how much financial analysis went into this?

    What is the economic harm of uncertainty? Headlines today say the Dow opened down on uncertainty over Greece and N. Korea. At every successful vote for Obama-care (something many suggest will be bad for business)stocks shot up (in particular health-care related stocks, insurance companies, pharmaceuticals, hospitals). This tells me that their value had been held low by uncertainty and decisions (for good or ill) let them return to their proper value. Or that they were going to reap huge benefits from Obama-care.

    What is more uncertain than going into a store to buy your family groceries knowing that you may be turned away. Kinda makes you want to just find one spot and go there even if they charge you too much. Or just do without as much as possible. Multiply that inefficiency by the 300 million people in this country and those nickles and dimes add up.

    True, it is unlikely that the black folks in Nowata, OK (my wife’s hometown, population 3000) would starve to death if the one grocery store decided to stop selling to brown-people. But it’s also unlikely that another store would be built. And the pressure of having to drive 25 miles to the next town to do basic shopping is going to have an effect.

    Remember what the good Prof. often says. Inefficiency anywhere results in higher costs everywhere. I think a lot more financial analysis went into the Civil Rights laws than you give credit for.

    Do you really think laws that guarantee everyone the right to work and shop, were all about fixing a moral injustice? It was about increasing the labor pool and driving the cost of business down. It’s why development goals inf the developing world always include the rights of women to find employment. Full access to the economy speeds economic growth.

    I’m not sure of your connection to minimum wage laws. Anti-discrimination laws remove barriers to economic participation that result from things that have nothing to do with productivity. That’s why anti-discrimination laws and even ADA expressly state that the ability to perform the job is always justifiable grounds for exclusion.

    Personally I’m against minimum wage laws because they reach their purported aims (poverty reduction) in the least efficient way possible. I think they rarely price labor below the productive value of the job. Minimum wage jobs make up a tiny portion of total jobs. And in some cases result in a net benefit like higher total employment and economic renewal of a region. So, on the whole I don’t think about them much at all. They are a political diatribe with little practical affect on the economy.

  25. 25 25 Dilip

    Dr. Landsburg

    I found this post very interesting too:
    http://www.anonymousliberal.com/2010/05/odd-libertarian-conception-of-freedom.html

  26. 26 26 GregS

    Burito, your point is well taken. But it’s pretty clear that spurning customers harms the supplier far more than it harms the consumer. The supplier loses 100% of the spurned customer’s business; the customer finds a replacement, possibly at a slightly higher cost. I think this is irrelevant anyway; capital tends to end up in the hands of the people who extract the most value from it. For example, crooked landlords get ahold of run down rent controlled properties because honest “compliant” landlords couldn’t earn any income from them. Even if there are a lot of racist would-be store owners, the chance of any of them spurning a large number of customers is slim.
    I understand your concern about inefficiency, but the bulk of the cost of discrimination falls on the store owner. The state has no right to intervene to prevent self-imposed inefficiency. If it did, it would have the right to declare some of my hobbies and proclivities (or questionable business practices) to be wasteful indulgences. My early evening accordion playing might impose a large cost on me and a small cost on my neighbor, but we mostly tolerate a person’s right to impose a cost on himself or very mildly irritate his neighbors.
    I don’t have the figures to prove that customer discrimination is absolutely proscribed by the economics of the policy. But in industries like the grocery business, where there are razor-thin profit margins, an inefficiency of this sort is likely to put the business OUT of business and at most mildly annoy the customers.

  27. 27 27 Harold

    Somebody once said something along the lines of “incentives matter”. Making something illegal provides an incentive to not do it. It presumably therefore does make the banned behaviour less common.

    The benefits of banning “whites only” or similar is therefore a reduction in racist discrimination. Racist discrimination is bad, indisputably economically, and in my opinion morally as well. I am not quite sure how to value the harm to individuals hurt feelings, perhaps by estimating how much one would spend to avoid being subject to racism. I think there is a further benefit, but harder to measure, a reduction not just in racist discrimination, but racism itself. As people see the minorities in their shops, schools and restaurants it becomes “normal”, and the world carries on as before. The feelings of “difference” reduce, and people actually feel less racist.

    Against this we must consider the costs, which has been expressed as reduction of property rights. How do we value this? We saw from Lestor Maddox that some people were pepared to withdraw from business rather than serve blacks, so we have lost their input entirely. However, these people were doing considerable harm by their racist discrimination, so I don’t know quite how much of a cost their loss is – it might even be a benefit. Perhaps we can make a rough equality – each person that is put off starting or running a business because they wish to discriminate balances cost and benefit. No, that is counting twice, isn’t it? We must count their loss as a cost, but their very existence of the cost informs us of the magnitude of the benefit. This leaves those who would be put off owning or running a business because of the loss of property rights, but who would not have discriminated in the absence of the law. I do not think many people would be put off by being banned from doing something they were not going to do anyway, so that leaves the “bad feeling” they suffer. For the law to have had an effect, it must have caused a change in behaviour against peoples preference. This will not have any detrimental economic effects, in fact the opposite, as already counted in the benefits, but must produce a bad feeling, at least initially. It seems entirely obvious to me that the bad feeling from this reduction of property rights is much, much less than the bad feeling caused by being the subject of racist discrimination.

    Then there is the law enforcement costs – from the discussion above it seems to be greater in the “whites only” situation, so that is another benefit.

    So the benefits are greater economically and emotionally. I am sure I have missed a few. If I have got this completely wrong, please tell me where I have gone wrong so I can get it better next time.

  28. 28 28 Benkyou Burito

    Gregg– But this is where it becomes an externality…”…the bulk of the cost of discrimination falls on the store owner. The state has no right to intervene to prevent self-imposed inefficiency”

    The bulk of the cost and the entirety of the value. The value of discrimination (not having brown people in his store) is reaped entirely by the discriminator but some of the cost is born by society.

    As the Prf. said in his recent book, when some of the cost of something is born by others and all of the value is gained by you, you will do it more than you ought to.

    Taken directly from your own statements, we’ve established that discrimination introduces inefficiency. And that inefficiency anywhere raises costs everywhere. So it makes sense to either prohibit the action that is weighing everyone down or to tax businesses that do this additionally to offset the cost that the rest of us are paying. Which solution would be easier to administer? Less prone to cheating? More enforceable?

    Your accordion playing is a perfect example, and much like the “loud radio” from landsburg’s book. We tolerate it up to a certain point. The point where it keeps me from getting a good night sleep and makes me perform my daily duties less efficiently. After that point, your hobby becomes criminal (well a civil infraction anyway). The act of denying service arbitrarily becomes a burden on economic efficiency immediately, and it has been, rightfully, criminalized.

    The inefficiency is not necessarily born by the store owner at all. So long as he has enough customers to buy the goods he sells, he’s able to pass the burden of his policies on to others.

    Your assertion that these things will straighten themselves out ignores the state of nature in which these laws arose. If discrimination would naturally harm the discriminator out of business then why did it remain a common practice until the laws were put in place?

  29. 29 29 Steve Landsburg

    Benkyou: I don’t understand the “cost” that you think a discriminating restaurant owner imposes on banned customers.

    Are you imposing a cost on those customers by not opening a restaurant? If not, how is the owner imposing a cost on them by opening a restaurant and not serving them? In both cases, they don’t get served.

    In fact there is one difference between you and the restaurant owner: He’s making it easier for his banned customers to get served elsewhere (by supplying restaurant meals and thereby bidding prices down at competing establishments). You’re not.

    So — if “not serving Mr. X a restaurant meal” constitutes imposing a cost on Mr. X, then you and the restaurant owner are equally guilty. If it *doesn’t* constitute imposing a cost then I can make no sense of most of your recent comments.

  30. 30 30 Ken B

    Is Pryor’s argument as strong as it first appears? Can’t we turn it around: the black would-be customer is ALSO making a demand on the police powers if his entry be legal. If you remember Maddox and Wallace etc this isn’t even remotely hypothetical or rhetorical; it’s historical. And precisely the reverse arguemtn WAS made.

  31. 31 31 Benkyou Burito

    I’m sorry to be all wordy… but I had a thought on this.

    Proponents of it associate a pure free-market with democracy. This is fair. Everyone gets a “vote” when they go shopping and the best candidate wins.

    And yet, we would not tolerate a pure democracy as our form of government. It has never succeeded. It has a far worse track record even than socialism.

    The problem is generally referred to as “the tyranny of the masses”. And it is why the strongest representative governments, the USA included, have all been some form of republic.

    At the basic level a republic establishes certain rights in a process that requires greater than simple majority. Law makers are elected by majority vote from a large geographic blocks. Those law-makers make and pass laws but are bound to do so within that set of rights.

    The whole point is to ensure that some things represent the broadest values of the people they affect.

    This was the wisdom acknowledged by the founders of this country. And yet it becomes “American” to apply that same principle to how business may be conducted?

    How does the good professor answer “‘The Big Question’” of the Tyrant of the Masses? In politics? Or economics?

  32. 32 32 Benkyou Burito

    sorry… spellcheck corrected “unAmerican” to “American”

  33. 33 33 Benkyou Burito

    Professor–” I don’t understand the “cost” that you think a discriminating restaurant owner imposes on banned customers.
    Are you imposing a cost on those customers by not opening a restaurant? If not, how is the owner imposing a cost on them by opening a restaurant and not serving them? In both cases, they don’t get served.”

    The cost on a banned customer is the additional expense of travel or having to purchase from less competetive stores. As a result, less shopping will get done.

    A bigot who does not open a store is not imposing a cost because it leaves the spot open for a non-bigot to do so. But as Prof. Krugman stated in his work on NTT, the Nobel winning work that you praised very highly, some markets can only support a limited number of firms.

    If a market can only support one major supermarket, and it is owned by a bigot, then it follows that the options available to a brown shopper will be less efficient. That inefficiency is born by the entire economy.

  34. 34 34 Steve Landsburg

    Ken B: Excellent point.

  35. 35 35 Benkyou Burito

    Ken’s is an excellent point to the extent that requiring the police to investigate an assault on me is upholding MY rights.

    But the picture is not clear without including that in tracking down the person who attacked me, the police are upholding EVERYONE’S rights to have dangerous and disruptive influences removed.

    The police do not investigate crimes against the rights of a person. They investigate crimes against the people commited upon an individual. There is never going to be a criminal trial called Doug v. Bob (2010).

  36. 36 36 Josh

    Steve said,

    “Benkyou: I don’t understand the “cost” that you think a discriminating restaurant owner imposes on banned customers.

    Are you imposing a cost on those customers by not opening a restaurant? If not, how is the owner imposing a cost on them by opening a restaurant and not serving them? In both cases, they don’t get served.”

    Your point here is strong, but I wonder… you seem to be very hard on protectionists and racists but ONLY (it seems) when they are not parties to the actual transactions in which they act racist or in a protectionist manner. That is, and correct me if I’m wrong, you seem to have absolutely no problem with someone who acts according to his preferences to buy American EVEN WHEN they would have bought the Chinese-produced product had they not known who produced it. On the other hand, you do seem to get very irritated when people in general say “buy American only.” I guess in one case you have someone acting on his preferences and in another you have someone trying to convince others that others’ preferences should match his. Fair enough. I assume you would be equally as irritated if someone in a general statement said “do not serve blacks.” But I guess your point is that you do not want to force people to buy a mix of products from different geographical regions and you do not want to force people to serve a mix of people. If they want to buy only American and only want to serve one type of person, then that is their right. But, even though this is besides the point, I think it’s worth remembering that the world is worse off with both protectionist and racist attitudes and if a Civil Rights Act or other laws are capable of changing attitudes (debatable) then maybe (or maybe not) it’s worth the increased openness of trade.

  37. 37 37 Steve Landsburg

    Josh: I am extremely irritated by people who go out of their way to buy American, and I am extremely irritated by people who care about the race of their friends, customers, etc. I am also a great believer that not everything that irritates me should be illegal.

    I do agree that the Civil Rights Act appears to have changed attitudes dramatically—much more so than I’d have predicted—and that this is an extremely good thing.

  38. 38 38 David

    Harold, it is against the law to assault individuals, enter their property without their consent, and to take things from someone without their consent. But it is legal to tackle someone while playing football, go as a guest to someone’s house for dinner, and receive gifts. The acts aren’t so much at issue as the consent of the people on the business end of the acts. Police are indeed there to protect people from others’ infringements on their rights. The question isn’t about passing a law specifically saying that blacks aren’t allowed into whites-only establishment, but generally that going onto private property without the consent of the owner is illegal.

    Neil, as to the exceptions for Trespass, I don’t know of any of them that have to do with the reasons for wanting to exclude. The ones I’ve studied so far include emergency; to stop crimes or harm to people; not being able to restrict access to waterways; prescriptive easements, where you can’t stop someone from using your property when they have used it for a statutorily determined time; and so forth. I don’t know about any restrictions on what precedents there are to limiting the reasons one can have for barring someone from their property.

    I’m assuming that a restaurant owner can have a hight requirement for who they want to cook for, right? And the police don’t have to ask anything about their motivations for wanting to exclude short people, they just have to know that they’re not welcomed.

    Pryor’s argument is really close to the one invoked by the SCOTUS in Shelley v Kraemer (http://en.wikipedia.org/wiki/Shelley_v._Kraemer). The issue was whether racially restrictive covenants on who could buy property in a neighborhood were enforceable. They found that they couldn’t because it would require the courts to act to enforce them.

    I think the outcomes here are all fine and dandy, but I also think it’s a bit of a scary road to go down. I just don’t like the idea of the majority deciding on tastefulness how rights can be exercised. Demonstrations are usually licensed by municipalities and protected by the police. Should we only give police protection to events whose messages are approved of by the government? Or do even anti-semitic neo-nazis have the right to equal police protection when expressing their views? I think they obviously do.

    What ever happened to the sentiment of hating what someone says [or how they decide to exercise their property rights] but being willing to defend their right to say it?

  39. 39 39 Neil

    What seems to be forgotten is that the government was complicit in the American apartheid. Could segregation have survived without the State and local Jim Crow laws that supported it? The folks who want trade laws to force others to “buy American” are of the same ilk as the folks who wanted Jim Crow laws to force those who sold to whites to “sell only to whites”. Had the Civil Rights Act done nothing but void the Jim Crow laws it would have done a lot of good. But, frankly, I am glad it went further and forced the common carrier doctrine on the market place.

  40. 40 40 Benkyou Burito

    Josh–When you say “I think it’s worth remembering that the world is worse off with both protectionist and racist attitudes” you are making a moral argument based on personal values of what is “better and worse”.

    But the point is just as valid if you say “the world is less efficient with both protectionist and racist attitudes”. And that is something we can measure. Cultural norms such as racism and gender bias result in a nation that is not as productive as it could be. That is fact. No morality involved.

    In the developing world people are starving to death yet they refuse to allow the women there to own property or go to work. Economic stagnation is driving FDI out of countries left and right but the answer that this country arrived at 50 years ago (remove all arbitrary barriers to commerce) still smacks of Northern imperialism.

  41. 41 41 Benkyou Burito

    Steve– you say “I am also a great believer that not everything that irritates me should be illegal. ”

    And I agree. But do you believe that a business engaged in an activity that is reviled by a vast majority of the country should receive state sanctions and endorsements to do so?

    Would it be fair, in your opinion, to decriminalize racial and gender discrimination and at the same time withhold any form of publicly provided benefit from that business?

    I’ve mentioned occupancy permits and fire inspections for one, but maybe also building code enforcement, street lights, FDIC protection on their bank accounts, a strong and freely converable currency etc. Even cases where the business pays for an inspection, the office and administration of that office is supported by the voting public.

    I think a lot of people say they don’t want government intrusion but they are happy to reap the rewards of that government when it suits them

  42. 42 42 dave

    what if the police that show up to enforce a ‘whites only’ policy arent white?

    will hispanic police in arizona be less likely to ask people to present their documentation?

    while attitudes regarding race (in the u.s.) may have changed significantly since the civil rights act, i dont think this is a causal relationship.

    1930′s and 1940′s: predominantly black musicians entertaining a predominantly white audience. reefer madness. integrated military service. jesse owens.
    1950′s and 1960′s: the rat pack. elvis (the whiter face of black rock n’ roll) chuck cooper. hank aaron.
    70′s -> : jimi hendrix. michael jordan. tiger woods. eminem (the whiter face of black hip – hop)

    as a veteran, i think that the integration of the armed services may be the most important factor. my roommate is a retired marine who just happens to have been born in puerto rico. i definetly see him as a marine long before i see him as a puerto rican.

    http://en.wikipedia.org/wiki/Desegregation#Desegregation_in_the_military

    ‘In the midst of the Battle of the Bulge in late 1944, General Dwight D. Eisenhower was severely short of replacement troops for existing military units–all of which were totally white in composition. Consequently, he made the decision to allow Afro-American soldiers to pick up a gun and join the white military units to fight in combat for the first time.’

    i think ike ran through a cost-benefit analysis and came to the right conclusion.

  43. 43 43 Jon

    Mr. Pryor had a great point. There is no way to enforce property rights as the absolute right without government intervention. And the methods you propose would be a more agregious overreach of government power than violating the law itself. I strongly believe in governent limits on power but even I don’t see how capital punishment( or similar forms of punishment) would be less of a reach of government control. I consider myself a libertarian leaning voter but there still comes a point where absolute property righs infringe upon civil rights. (think of it as a torus where, after a certain value, everything shifts to the opposite where increasing ‘property rights’ infringe increasingly upon other peoples rights as individuals.

    Pertaining to Mr. Paul, even if he is a natural rights libertarian, where property rights trumps all (as a result of the logical reasoning that comes from their viewpoint.)He should still know better than to say something like that out loud knowing that people will, using a sloppy shorthand thinking and with the help of a media, looking for sales/attention, equate that with simple racism. Of all the things libertarians hope to accomplish, abolishing the civil rights act, since it is a part of increasing government control of private enterprise, is far down the list. Surely he could have found more relevant examples of controversial government imposition to argue against.

    As someone mentioned previously, this is not against the law, but if you are trying to win a political office and advance your point of view (which, in our case, very few people happen to agree with. It has always amazed me that the pro union/anti-immigration/pro social consevative democrats haven’t formed an aliance with social conservative/Nationalist Republicans, as their views are more compatible than the traditional true conservative/neo liberal/ libertarian view and they would comprise a much larger group than the rest of us. He would be much better off trying to change laws that are more relevant to the everyday citizen. Presumably, most of us don’t belive in the power of martyrs, so all of that losing we do in the name of ideological purity doesn’t earn us a future win.

  44. 44 44 Harold

    ”. And it is why the strongest representative governments, the USA included, have all been some form of republic.”

    It is only a point of detail, but the UK, “Mother of Parliaments” is not a republic and has no written constitution.

  45. 45 45 Benkyou Burito

    the UK is not considered a republican state only because its head of state is hereditary. Not-withstanding the head of state there haveing almost no political control.

  46. 46 46 Scott F

    One small distinction between blacks and naked people. Naked people are a threat to sanitation in a restaurant, which is arguably a greater imposition on the restaurant and it’s patrons. So I’m not sure that that’s a perfect example. Just a thought.

  47. 47 47 Daniel

    Police departments often have nearly complete discretion to enforce the laws, which is why you you cannot sue your local police department if you are injured as a result of their negligent failure to enforce the law.

    I disagree that the Civil Rights Act is an intrusion in property rights. The CRA defines property rights, and it does not make sense to say that property rights are decreased because freedom from discrimination is a property right.

    Imagine a law which gave you the property right to exclude me from looking at your property. If that law is repealed you lose one of your property rights, but I gain the property right to use my eyes any way I want. All property rights are multi-dimensional in this way. The right to exclude necessarily precludes freedom from exclusion.

  48. 48 48 nobody.really

    I find the Hershey Bar hypothetical thought-provoking. Under a cap-and-trade system the state might pay me (or other parties might pay me) to refrain from polluting, or to maintain trees I was already maintaining. And electric utilities might pay me to refrain from using electricity I was already not using – but had a right to use. To what extent should we socialize the cost of people refraining from engaging in legal, but externality-filled, conduct?

    Does the fact that the state provides a police force to defend my property rights mean I needn’t buy locks for my doors? Should the state subsidize door locks as a means to minimize police costs?

    Does the fact that government subsidizes health costs mean the state should pay non-smokers to continue to refrain from smoking? Can I extort money from the state by threatening to exercise my right to smoke?

    Does the fact that the state provides roads mean that the state should also subsidize my shock-absorbers to minimize the impact of my car on the road?

    Does the fact that I have a right to free speech, and to call upon the state to defend my right, mean the state should offer to compensate everyone who refrains from screaming racial epithets at their neighbors?

  49. 49 49 Sandy

    There’s an important missing piece to this entire discussion. It seems quite likely that the “whites only” policies were implemented by business owners in response to customer preferences rather than being a manifestation of the business owners’ own idiosyncratic preferences. (After all, Woolworth’s didn’t maintain segregated lunch counters outside the South.) So I believe the situation at that time was something along these lines: Some unknown fraction of potential white customers would stop patronizing any one store that unilaterally served whites as well as blacks. As long as the potential for lost sales to that fraction was believed to be greater than the expected additional sales revenue from blacks (or emphatically pro-integration whites), no store owner would deviate from the whites-only policy. However, if all store owners were compelled to serve customers of all races, then the disgruntled whites couldn’t punish any of the stores by withholding their patronage.

    Furthermore, the state was hardly a neutral enforcer of property rights in those days. I have very little doubt that any single white business owner who started serving blacks and whites together would have been visited by every health and building-code inspector in the county, on a daily basis–not to mention the nontrivial probability of finding that his business suddenly caught fire one night and burned to the ground while the firemen (employed by the same government that enforced the rest of the apartheid regime) toasted marshmallows at the scene.

    If my story is a reasonably accurate description of those times and places, then the real loss of “rights” was not realized by store owners but by their bigoted white customers. In such a case, I don’t see how we can avoid a utilitarian calculus of the psychic gains and losses involved, which is probably what commenters are getting at when they talk about “doing what’s right.”

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