Civil Rights - A Challenge
by Robert Bork

Passions are running so high over racial discrimination that the various proposals to legislate its manifestations out of existence seem likely to become textbook examples of the maxim that great and urgent issues are rarely discussed in terms of the principles they necessarily involve. In this case, the danger is that justifiable abhorrence of racial discrimination will result in legislation by which the morals of the majority are self-righteously imposed upon a minority. That has happened before in the United States - Prohibition being the most notorious instance - but whenever it happens it is likely to be subversive of free institutions.

Instead of a discussion of the merits of legislation, of which the proposed Interstate Public Accommodations Act outlawing discrimination in business facilities serving the public may be taken as the prototype, we are treated to debate whether it is more or less cynical to pass the law under the commerce power or the Fourteenth Amendment, and whether the Supreme Court is more likely to hold it Constitutional one way or the other. Heretical though it may sound to the constitutional sages neither the Constitution nor the Supreme Court qualifies as a first principle. The discussion we ought to hear is of the cost in freedom that must be paid for such legislation, the morality of enforcing morals through law, and the likely consequences for law enforcement of trying to do so.

Few proponents of legislation such as the Interstate Public Accommodations Act seem willing to discuss either the cost in freedom which must accompany it or why this particular departure from freedom of the individual to choose with whom he will deal is justified. appears to recognize but to wish to avoid these questions, for, in speaking on behalf of the bill before a congressional committee, he went so far as to state that the law would create no precedent. That of course is nothing less than an admission that he does not care to defend the bill on general principles.

There seems to be a strong disposition on the part of proponents of the legislation simply to ignore the fact that it means a loss in a vital area of personal liberty. That it does is apparent. The legislature would inform a substantial body of the citizenry that in order to continue to carry on the trades in which they are established they must deal with and serve persons with whom they do not wish to associate. In part the willingness to overlook that loss of freedom arises from the feeling that it is irrational to choose associates on the basis of racial characteristics. Behind that judgment, however, lies an unexpressed natural-law view that some personal preferences are rational, that others are irrational, and that a majority may impose upon a minority its scale of preferences. The fact that the coerced scale of preferences is said to be rooted in a moral order does not alter the impact upon freedom. In a society that purports to value freedom as an end in itself, the simple argument from morality to law can be a dangerous non sequitur. Professor Mark DeWolf Howe, in supporting the proposed legislation, describes southern opposition to "the nation's objective" as an effort "to preserve ugly customs of a stubborn people."

So it is. Of the ugliness of racial discrimination there need be no argument (though there may be some presumption in identifying one's own hotly controverted aims with the objective of the nation). But it is one thing when stubborn people express their racial antipathies in laws which prevent individuals, whether white or Negro, from dealing with those who are willing to deal with them, and quite another to tell them that even as individuals they may not act on their racial preferences in particular areas of life. The principle of such legislation is that if I find your behavior ugly by my standards, moral or aesthetic, and if you prove stubborn about adopting my view of the situation, I am justified in having the state coerce you into more righteous paths. That is itself a principle of unsurpassed ugliness.

Though the basic objection is to the law's impact upon individual liberty, it is also appropriate to question the practicality of enforcing a law which runs contrary to the customs, indeed the moral beliefs, of a large portion of the country. Of what value is a law which compels service to Negroes without close surveillance to make sure the service is on the same terms given to whites? It is not difficult to imagine many ways in which barbers, landlords, lunch counter operators, and the like can nominally comply with the law but effectively discourage Negro patrons. Must federal law enforcement agencies become in effect public utility commissions charged with the supervision of the nation's business establishments or will the law become an unenforceable symbol of hypocritical righteousness?

The trouble with freedom is that it will be used in ways we abhor. It then takes great self restraint to avoid sacrificing it, just this once, to another end. One may agree that it is immoral to treat a man according to his race or religion and yet question whether that moral preference deserves elevation to the level of that principle of individual freedom and self-determination If, every time an intensely-felt moral principle is involved, we spend freedom, we will run short of it.

Bork gave warning to the coming encroachment of Federal powers, was he correct? Next, look at what he wrote in his introduction for "Slouching Towards Gomorrah":

Culture eventually makes politics. The cultural seepages of the Fifties strengthened and became a torrent that swept through the nation in the Sixties, only to seem to die away in the Seventies. The election of Ronald Reagan in 1980 and the defeat of several of the most liberal senators seemed a reaffirmation of traditional values and proof that the Sixties were dead. They were not. The spirit of the Sixties revived in the Eighties and brought us at last to Bill and Hillary Clinton, the very personifications of the Sixties generation arrived at early middle age with its ideological baggage intact.

Radical egalitarianism necessarily presses us towards collectivism because a powerful state is required to suppress the differences that freedom produces. That raises the sinister and seemingly paradoxical possibility that radical individualism is the handmaiden of collectivist tyranny. This individualism, it is quite apparent in our time, attacks the authority of family, church, and private association. The family is said to be oppressive, the fount of our miseries. It is denied that the church may legitimately insist upon what it regards as moral behavior in its members. Private associations are routinely denied the autonomy to define their membership for themselves. The upshot is that these institutions, which stand between the state and the individual, are progressively weakened and their functions increasingly dictated or taken over by the state. The individual becomes less of a member of powerful private institutions and more a member of an unstructured mass that is vulnerable to the collectivist coercion of the state. Thus does radical individualism prepare the way for its opposite.

Once again, Judge Bork warns us, is anyone listening?