Property Rights and Public
Accommodations
Ernest Partridge
July 28, 2010
In the early sixties, the young black
students in the South had had enough.
Enough separate drinking fountains, enough all-night drives because no motel
would provide a room, and enough refusal of service at restaurants and lunch
counters.
“Screw this,” they said, and so they sat at Woolworth’s lunch counters
anyway, where they were taunted, spat upon, beaten, and arrested.
The white restaurant owners resisted, most notably one Lester Maddox in
Atlanta who stood at the door of his Pickrick restaurant, axe handle in
hand, threatening to use it on any black citizen who might attempt to enter.
Enough white Georgia citizens were sufficiently delighted by Maddox’ act of
defiance that they elected him Governor of the state.
But the students persisted, organizing “freedom rides” throughout the south,
where they were joined by supporters of all ages and races from around the
country until, at last, they prevailed. In 1964 the Congress of the United
States passed the first
Public Accommodations law, which stipulated:
All persons shall be entitled to the
full and equal enjoyment of the goods, services, facilities, and
privileges, advantages, and accommodations of any place of public
accommodation, ... without discrimination or segregation on the ground
of race, color, religion, or national origin.
Today, the right of all persons to access
to motels, restaurants, transportation facilities, etc., is settled law and
is accepted throughout the land by most citizens.
“Most,” but not all. Among the remaining dissenters is Rand Paul, a
libertarian and the Republican candidate for the Senate in Kentucky.
Racial discrimination in public facilities is morally wrong, Paul agrees,
and those who disapprove have a perfect right to boycott establishments that
discriminate.
But the property rights of the owners, he insists, are sacrosanct. And
however much we might deplore and protest the owners’ decision to refuse
service on the basis of race, the facilities are still private property and
the owners have the indisputable right to do with their property as they
wish.
The Myth of “Absolute Rights.”
The moral center of libertarian dogma is a triad of rights: the rights to
life, liberty and property. William Bayes (348) expresses the dogma with
admirable clarity:
Where do my rights end? Where yours
begin. I may do anything I wish with my own life, liberty and property
without your consent; but I may do nothing with your life, liberty and
property without your consent....
This proclamation is accompanied by a
qualification – the so-called “like liberty principle:” You have “the right
to live your life as you choose so long as you don’t infringe on the equal
rights of others.” (Boaz, 59). As we shall see, this qualification proves to
be the undoing of libertarian absolutism.
An unyielding defense of property rights runs afoul of an inescapable moral
conundrum: anyone who holds more than one moral principle must face the
possibility of a conflict of principles, whereby one principle might have to
yield to another. I call this “the moral
relativism of conflict.” And as Charles Frankel wisely pointed out, the
person who attempts to escape this dilemma through an unyielding adherence
to one and only one principle is not a moralist, the correct description is
“a fanatic.” Moliere’s “Misanthrope,” whose single moral precept was to
never tell a lie, is the classical example of a fanatic.
For example: If you are asked directly by a Mafia hit-man the location of
his intended victim, do you tell the truth? In fact, in defense of the
target’s “right to life,” you are morally required to tell a lie. In fact,
the law so stipulates, for if you tell the truth you will be charged with
being an accessory to murder. A scene from the sixties movie “Dr.
Strangelove” exemplifies another such conflict: Is it permissible to steal
coins from a Coke machine in order to make a phone call that saves the world
from nuclear annihilation?
Libertarians cannot escape from this “relativism of conflict,” for they
insists upon not one, but at least three fundamental principles: the rights
to life, liberty and property.
And yet, David Boaz, in his Libertarianism – A Primer, proclaims that
“Fundamental rights cannot conflict. Any claim of conflicting rights must
represent a misinterpretation of fundamental rights.” (Boaz, 89) Boaz offers
no defense of this dogmatic pronouncement.. Small wonder. It is
indefensible. Talk to a libertarian for a few minutes, and if he affirms
that all persons are entitled to equal rights (the “like liberty principle”)
and if that libertarian has even a modicum of moral rationality, he must
yield on this point. For consider:
Is there an inviolable right to establish a hog farm on one’s property in a
residential area? Such a “right” degrades the property values of one’s
neighbors.
Is there an inviolable right to own a tactical nuclear weapon or to
manufacture explosives in one’s basement? This violates the neighbors’ right
to life.
Is there a right to run past a “No Trespassing” sign to rescue a drowning
child or an infant in a burning building? The law permits such exceptions;
it is called a “defense of necessity.”
Is a person permitted to steal a loaf of bread to avoid starvation? To
condemn such an exercise of one’s “right to life” is too much even for the
dogmatic libertarian. Yet David Boaz’ evasion of this trap is curious, and
ultimately inconsistent. On the one hand, he writes that “[property] rights
cannot apply where social and political life is impossible,” (Boaz 86) which
is to say that property rights are not absolute. And yet, earlier in the
book (37), Boaz, citing John Locke, writes that the rights to life, liberty
and property are “prior to the existence of government – thus we call them
‘natural rights,’ because they exist in nature.” This latter pronouncement
would seem to indicate that because property rights are “prior to
government,” a starving person is never justified in saving his life and
that of his family by stealing the property of another. But does not the
libertarian also insist that the right to life is also “prior to
government”? Thus the libertarian offers no resolution to this conflict
between the rights of life and property.
Which brings us, at last, to the right of access to public
accommodations.
Admittedly, the Civil Rights Act of 1964 curtails the absolute property
rights of the owner of a motel or a restaurant, etc. But the act does so to
affirm and protect the rights of liberty and the pursuit of happiness of
those who would otherwise be discriminated against. For racial, religious,
or other discrimination is a fundamental insult to the dignity of the
affected individuals and a validation of their second-class citizenship.
This is intolerable in a civilized society. The libertarian agrees: “The
ethical or normative basis of libertarianism is respect for the dignity and
worth of every (other) person.” (Boaz 97)
By defending the right of the owner of a public facility to deny access “on
the ground of race, color, religion, or national origin,” the libertarians
repudiate their proclaimed adherence to the “like liberty principle” and
they betray an absence of that most fundamental of moral
sentiments, empathy. In other words, they fail to comprehend
what it is like to be the victim of discrimination.
Martin Luther King’s elaboration of this point, in his “Letter from
Birmingham Jail,” is unsurpassed in its force and eloquence:
Perhaps it is easy for those who have
never felt the stinging darts of segregation to say, "Wait." But when
you have seen vicious mobs lynch your mothers and fathers at will and
drown your sisters and brothers at whim; when you have seen hate filled
policemen curse, kick and even kill your black brothers and sisters;
when you see the vast majority of your twenty million Negro brothers
smothering in an airtight cage of poverty in the midst of an affluent
society; when you suddenly find your tongue twisted and your speech
stammering as you seek to explain to your six year old daughter why she
can't go to the public amusement park that has just been advertised on
television, and see tears welling up in her eyes when she is told that
Funtown is closed to colored children, and see ominous clouds of
inferiority beginning to form in her little mental sky, and see her
beginning to distort her personality by developing an unconscious
bitterness toward white people; when you have to concoct an answer for a
five year old son who is asking: "Daddy, why do white people treat
colored people so mean?"; when you take a cross county drive and find it
necessary to sleep night after night in the uncomfortable corners of
your automobile because no motel will accept you; when you are
humiliated day in and day out by nagging signs reading "white" and
"colored"; when your first name becomes "nigger," your middle name
becomes "boy" (however old you are) and your last name becomes "John,"
and your wife and mother are never given the respected title "Mrs.";
when you are harried by day and haunted by night by the fact that you
are a Negro, living constantly at tiptoe stance, never quite knowing
what to expect next, and are plagued with inner fears and outer
resentments; when you are forever fighting a degenerating sense of "nobodiness"--then
you will understand why we find it difficult to wait. There comes a time
when the cup of endurance runs over, and men are no longer willing to be
plunged into the abyss of despair.
The Upshot
As a youngster, I was taught that virtue in the individual and justice in
the state consisted of the triumph of good over evil. But then I entered the
university and studied philosophy, where I learned that the moral life is
not as simple as that. For, in addition, virtue and justice can also consist
in making the optimal forced choices among several competing “goods” or
among several necessary evils – what moral philosophers call “tragic
choices.” These include engaging in a defensive war to resist aggression,
performing an abortion to preserve a woman’s life, stealing food to avoid
starvation, and requiring the owner of a motel or a restaurant to serve all
customers regardless of their race, religion or national origin.
It is all well and good for citizens to engage in lofty abstractions as they
discuss moral principles and political rights. As a practicing philosopher,
I would be the last to decry such an activity.
But, as Aristotle taught us, morality and politics are, in the final
analysis, practical. They are about the conduct of our lives and the
ordering of society in specific, particular, day-by-day circumstances. Thus
moral principles and political rights must have application to ordinary
particular life experiences. Otherwise, they are of no use to us, merely
“sounding brass and tinkling cymbal.” Accordingly in the arena of ordinary
day-by-day life, moral dogmatism and absolutism have no place.
Thus it was that Martin Luther King, when confronted with the charge that
“the law” must be upheld without exception, answered not with competing
abstractions but with a bill of particulars – with a list of specific
indignities and insults that the afro-American must face every day.
Put simply, it is not enough to have the will to do what is right.
One must also have the practical intelligence to know what is right.
And, in ordinary life, the application of abstract moral rules has
consequences that often impact competing rules. Just as the ecologists have
taught us that due to the complex interrelationships among organism, “you
can’t do just one thing,” the morally sophisticated citizen must constantly
ask the ecologist’s question: “and then what?” (Hardin)
Like Lester Maddox in 1964, Rand Paul today has failed to acknowledge the
complex ecology of morality, as he insists that absolute property rights
must allow the owner and proprietor of a public facility to discriminate if
he so chooses. And also, typical of the dogmatic libertarian, David Boaz
fails to acknowledge the ecology of morality when he proclaims, without a
shred of supporting argument, that “fundamental rights cannot conflict.”
Yet it is just this kind of unyielding fanaticism that is polluting our
civic and political discourse today. If the American republic is to survive
the polarization of today’s politics, we must, on both sides of the
political divide, learn to pause and think through the implications of our
moral precepts and our rhetoric. And the ultimate test of those precepts and
that rhetoric must be in the laboratory of our practical everyday
experience.
Libertarians and other dogmatists to the contrary notwithstanding,
fundamental rights and abstract moral precepts can and do conflict.
Accordingly, if one affirms, as both the liberals and the libertarians
affirm, that we must respect the dignity of each individual and that each
person’s rights must be consistent with the equal rights of others, then it
clearly follows that property rights are not absolute and that the public
accommodation law of 1964 is correct:
All persons shall be entitled to the
full and equal enjoyment of the goods, services, facilities, and
privileges, advantages, and accommodations of any place of public
accommodation, ... without discrimination or segregation on the ground
of race, color, religion, or national origin.
Copyright 2010 by Ernest Partridge
REFERENCES:
Bayes, William W. (1970). “What is Property?”, The Freeman, July
1970, p. 348.
Boaz, David (1997) Libertarianism – A Primer, The Free Press.
Hardin, Garrett (1985), “An Ecolate View of the Human Predicament,”
Filters Against Folly, Viking.
