As we enter the dialogue, the participants are discussing individual identity as opposed to group identity. A has been arguing the benefits of a color-blind society that judges the individual independent of group affiliation according to ethnicity, gender, etc.
Q-Would that mean that you wouldn't favor the Supreme Court Ruling in June 1991 that extended the 1965 voting rights act to the election of judges?
A-Why would I be against that?
Q-Because it protects group rights as opposed to individual rights.
A-Well you're probably right in the "best of all possible worlds", but since the United States of America in 1991 still isn't Utopia I'd have to look at the alternative. I'm ashamed to admit I missed that ruling---can you fill me in?
Q-What you had was civil rights groups claiming the reason there were only 500 black judges out of 12,000 state judges in Louisiana, was rigged voting. As an example 54 percent of the registered voters in New Orleans are black but they can't elect their own black judge because New Orleans is merged with three white suburbs into a super-district which is 68 percent white and 32 percent black and it elects two justices at large.
A-Isn't that about the same break down of blacks and whites throughout the state?
Q-That's true, Louisiana's population is approximately one third white. At any rate Justice Antonin Scalia wrote for the three dissenting Justices that ". . .the Voting Rights Act is not some all-purpose weapon for well-intentioned judges to wield as they please in the battle against discrimination."
Whereas Justice John Paul Stevens writing for the six affirming Justices wrote, "Congress enacted the Voting Rights Act (to) rid the country of racial discrimination in voting. . .state judicial elections are included in the law."
A-That was simple enough and I guess it will lead to new voting districts. I do think this racial proportional fixation is unfortunate. I hope we are someday able to look around race and other classifications to the character of the person and feel assured that all citizens will be represented fairly because the judge or elected official is a good and just person, without regards to his classification.
Q-Highlighting rights and privileges makes people touchy. When anyone goes around with a chip on their shoulder daring others to knock it off, tensions rise.
A-Employers understandably become more reluctant to hire workers who seem to be waiting to catch them in some infraction of a law.
Q-I suppose that's one version of your "thought control police". It kind of reminds me of the second world war when the German youth became gung ho spies, ready to report their neighbors and even their parents for any signs of disgruntlement with the Nazi party.
A-It's not a healthy atmosphere. For years and years it was commonly, and I believe wisely acknowledged that morality cannot be legislated. I believe the races would have achieved a greater harmony naturally if certain aspects of the civil rights laws had not been enacted. The process would have been slower but the foundation would have been stronger and now race relations would be the better for it.
Q-Don't you think two hundred years was long enough for black people to wait for whites to accept them and treat them as equals? Appealing to this society's best instincts got many good people lynched!
A-If you're going to appeal to emotions, I give up the discussion. I'm looking for alternatives to help the situation we have today. I can understand the desire to speed things up----who can't? People of goodwill naturally want to see justice achieved today, not tomorrow. And although I believe many people forced racial relations in the past because they cared about their children and future generations, it is exactly these future generations that are now suffering because of their haste.
Q-What would you have done differently?
A-I would have attempted to focus the legislation on the public sector only. Maintaining the distinction between public and private property is essential to the political and social structure of this country and I believe policy makers lost sight of the rights of private citizens to control their own property.
Q-I don't believe that's true. We don't let a person take his car just because its his own private property and run over someone, or use a paint brush he owns to deface someone's property.
A-Now we're getting down to the nitty-gritty. The question supposedly answered by our Constitution is under what, if any conditions can a group of individuals impose its will on another individual or group of individuals.
Q- Now what's the difference between telling a person he cannot discriminate in his hiring practices and that he has to hire minorities in the proportion that they are represented in the local community?
A-The most obvious difference is practicality. One can easily see by the numbers if the proper number of minorities is being hired but one cannot see if the reason someone was not hired, or advanced on the job or whatever, was due to his religion, skin color, sex or age. In other words, without some pretty sophisticated "thought police" we cannot tell if the employer "discriminated " when hiring.
Q-So policy makers have suggested that numbers be used as a presumption of discrimination. What's wrong with that?
A-By asking "what's wrong" you are introducing morality and ethics into the discussion, and, in my judgment, morality is at the core of the civil rights issue and it cannot be discussed or solved without examining where we stand as a nation and perhaps suggesting where we as individual citizens think we should stand. Because, as we all too often forget, there is no king at the head of our government with divine rights---these decisions fall upon the shoulders of individual citizens.
Q-Again, I don't agree. Individual citizens don't have the time to analyze and ponder over issues like civil rights. We delegate these discussions to our legislators and then if we don't like what they come up with we give the courts a go at it.
A-And that is why we are experiencing tensions and witnessing a polarization of groups in America today. If individual citizens don't make the time to think seriously about such issues they better be prepared to waste a good deal of time trying to lead a fulfilling life in a discordant society.
Q-Ok, at least you and I can spend some time wrestling with these ideas, but I seriously doubt that you'll get more than a comment or two off the top of most people's head. They just won't think these things through. The most you'll get is undigested opinions, not even the speaker's own opinion, but a parroting of the sound bite heard on the six o'clock news.
A-Again, we exhibit a difference in our attitude towards people. You think I'm naive and I think you underestimate people.
Q-Ok, Ok. I asked what is wrong with using numbers as an indication of discrimination?
A-You can tell how I would answer just about any question if you remember my premise: "People are going to act in their own interests." So if a penalty were imposed for discriminating, a person would want to avoid the penalty, and therefore if numbers are used to determine discrimination he would make sure the numbers were in his favor and would adjust his hiring and advancement policies accordingly.
In other words, it would lead to quotas.
Q-OK. For the purpose of shortening our discussion would you stipulate that discrimination exists and that it is wrong?
A-I understand your desire to avoid belaboring the issue but I'm afraid I can't oblige. First of all since I believe people are self-controlling the ability to discriminate should be their's. We are talking about preferring one thing over another and I believe a person is entitled to his preferences no matter the reason.
Q-Be real! You know good and well by "discrimination" I'm referring to restricting someone's rights because of race, age, sex and so forth.
A-It's impossible to have such a discussion "in a hurry". You use words so imprecisely and their definition is extremely important to the outcome. To continue I would have to define what you mean by "rights" because I would not stipulate that anyone has a "right" to work for a private party unless that party wishes to hire him, nor do I believe any individual has a "right" to live in a private property that the landlord does not wish to rent to him . . .
Q-I get your drift.
A-And because I won't stipulate to it does not necessarily mean I don't think it is legitimate it is just not as obviously true as you seem to think.
As for "wrong" there is a distinction to be made here between
(A) against the law, which I believe is the manifestation of a collective moral code, and
(B) against the moral code of a given individual. In the first category are laws against people committing physical bodily harm against one another and the taking or destruction of one another's property.
The second category is reserved for things like integrity, character, truthfulness, courage and goodness. There are no public laws in this area---no state prosecutes a person for not being good.
Q-But lying under oath is prosecuted as perjury.
A-That's different. I would put discrimination in the second category instead of the first. It is a "thought thing", a matter of ethics.
Q-Meaning we shouldn't have civil or criminal laws to regulate it?
A- I believe the fact that we have such laws, is part of the wrong turn I mentioned earlier.
Q-This is getting ridiculous.
A-I'm not trying to discuss what is---that can be seen by going to a law library in any county in the country and looking up civil rights----I'm trying to discuss what should and could be. It would be a fruitless exercise except that in the United States,we the people have the power to decide these things.
Q-Talk about naive! As I tried to convince you before, these things are not decided by ordinary people but by the judicial and legislative branches of government.
A-That may have been true at one time during our history but its not necessarily true today. Now it's my turn to bring you up to date with some Supreme Court cases: in Berman v Parker (1954) "Subject to specific constitutional limitations, when the legislature has spoken, the public interest has been declared in terms well-nigh conclusive. In such cases the legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation. . ."
And in Ferguson v Skrupa (1963) the Supreme Court said the judiciary could no longer hold laws to be unconstitutional just because they believe the legislature has acted unwisely: ". . .courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws."
This means it is up to the people because courts have abdicated that responsibility to the legislators who the people elect every two or six years. We can make changes----big changes by changing our representatives.
Q-Oh well now, I suppose that's not naive! Not only can ordinary people change the legislators when the return of incumbents has been over 99 percent recently, but these super ordinary people can also influence them. Give me a break!
A-Our real goal is not superficial tolerance but a warm harmonious relationship among the races built on a firm foundation of mutual respect.
There is a difference between allowing and condoning. We don't prevent a person from acting before the fact. It is only after the transgression that we allow the offended party redress. Part of the problem, as I see it, is that when it comes to civil rights legislation we are practicing preventative law.
Q-Many people would like to see preventative law, if that's what you want to call it, practiced on our streets also. There are documented cases where someone's life has been threatened and the police, powerless to act until after a crime has been committed, arrive too late to prevent a death. And forget restraining orders; they just don't cut it.
A-What do you want? Would you like to see the police lock up anyone who is accused of threatening someone? Assault is a crime, you know, and its proof does not requiring any physical contact with the victim. Proving assault could be considered the practice of preventative law.
Q-That may be difficult and take too long to prove.
A-But that is the risk our society has decided to take. The alternative is to lock up people who might commit a crime, and I know of no one who would ever consider such a thing.
Q-Because we don't do that, innocent lives are lost. That is not only an injustice it is a tragedy.
A-As I said, look at the alternative. An occasional injustice is the price we pay for our system of laws. An occasional injustice is the price blacks may have wished they paid a little longer in order to have their children living in a color-blind society today. The moral fabric of the society would have gradually strengthened over the years until discrimination would have ended naturally on its own.
Q-I don't buy that! There would always be people who would discriminate.
A- Those who continued to discriminate---and I agree there would always be some---would be the losers. Most people try and stay away from bigots. Those people, who if free from legislation, continued to ban minorities and women from their homes or places of business or social clubs would attract only their counterparts; similar narrow-minded persons, and they would deserve each other. In a free America that's how it should be.
Q-I just can't believe you're saying this! Are you claiming race relations would be better off if private citizens were allowed to practice discrimination?
A-It may not be the "politically correct" thing to say, but you and I both know race relations were getting better in this country, after and in some sense, due to the second world war. Progress was faster in some areas than in others---but it was real progress because the injustice of segregation was reaching not only peoples' minds, but also their hearts and souls.
Legislation is force, and is at best a "sham progress" and at worst a step backwards because it is offensive. People know preferential treatment is unjust, that quotas and set asides emphasize the differences among people---sets them up as antagonists throughout society.
In that sense the civil rights laws have done more harm than good. I believe you know it in your heart of hearts though you may not be courageous enough to admit it.
Q-I'm frankly sick of hearing that you can't legislate morality and that morality must be nurtured from within. I agree with those who claim such nonsense is a phony excuse and a license to practice bigotry.
A-And I repeat---injustice only begets more injustice and resentment. You may have a surface calm but the rumblings underneath are a result of an inadequate moral foundation. Civil rights activists were understandably impatient to see justice done. But the fact remains that they would have achieved a stronger and longer lasting victory if they had waited for a moral mandate from the people. And it would have come.
Q-That's ridiculous.
A-I'm advocating a winning strategy. Winners would be the people of all ages, races, gender and creed who are intelligent, hardworking, interesting, creative and sensitive and they would find each other without the false and flimsy trappings of government edicts which become embarrassing barriers to all parties.
Q-I suppose you would argue that anyone who turns down a loyal, hardworking good employee loses. Wouldn't you say it's in the best interest of employers to hire the best employees, whatever their race or ethnic background?
A-On the other hand, working in an environment where you know your boss was forced to hire you, and your co-workers resent you, is not what I would call a winning situation.
Q-Are you saying you would let an employer hire all white people if he chose to do so, or allow the situation to remain where some schools have only white pupils and others are all black?
A-The word you used, "let" or "allow" is part of the problem. I don't believe our government has the right to control what I, or any other person does with the property he has earned and which lawfully belongs to him. "Let" signifies permission and I shouldn't have to ask permission to use what is rightfully mine.
Now property that is collectively owned by society, that taxes collected from peoples of all races, colors and creeds have purchased or maintained, is a different story. Agents of government should never have been allowed to deny access to public places to anyone.
Q-What about the southern states prohibiting blacks from using the same public facilities as whites? Do you think the "separate but equal" doctrine was legitimate?
A-You wouldn't ask that if you believed me when I said I favored a color- blind society. Color-blind means no distinctions should be made on the basis of race. The color of ones skin should neither help nor harm a person under the law. Consequently separate facilities wouldn't even be considered.
Q-That sounds fine and dandy and I suppose you'd just turn your back on what happens in actual practice. You'd just expect a black person who can't even get an interview at an all white firm to believe that the country is color-blind!
A-I would make certain that the government is color blind; the people themselves are, and should be, self-controlling individuals.
Q-In other words, a black would have the same chance as any other person at getting a government job but nothing whatsoever would be done if a private employer chose to discriminate against him or her.
A-You believe that is terrible because you assume most white employers will discriminate, whereas I don't believe that is the case at all. Why do you think they had apartheid laws in South Africa prohibiting whites from having certain dealings with blacks? As someone once said, you don't have laws against elephants flying because they are not inclined to do so. Apartheid laws must mean whites are inclined to deal with blacks and therefore there must be legislation to prohibit it.
Q-You mean you wouldn't bother to legislate against something unless you thought it was likely to take place. But we have proof that discrimination is not only likely to take place in the country but that it does take place and is likely to continue despite laws against it.
A-It comes down to a person's belief about human nature, and I personally believe most people are basically good and want to help and be a positive force whenever they have an opportunity to do so.
Q-That's so incredibly naive, I don't know why I'm even talking to you.
A-Remember, In all cases people are going to first and foremost act in their own best interest.
Q-So minority or female applicants will be hired only if they are better qualified and their interviews suggest they are the most desirable employees. You're saying the employer must believe the relationship will be beneficial.
A-Not only if better qualified, but I believe they will be hired more often than not, if equally qualified. I believe affirmative action is built into human nature and is part and parcel of the desire "to do good without sacrificing self-interest" that we just talked about.
I know my husband makes it a habit to trade with small entrepreneurs and patronize any new restaurant or business to help them get started. But if they are not as good as the larger or more established firms then he won't sacrifice his own interest and keep going back.
That's generally how the market system works in this country. Most people like to champion the underdog. In our mobile society newcomers are welcome and then its up to them to sink or swim.
Q-You're talking about business owners---I'm talking about employees. A study came out in May 1991 showing that blacks with the exact same qualifications as whites had a lot less access to the system.
A-You're talking about the Urban Institute study that showed blacks were given fewer chances to interview when they responded to advertisements for the same job. In 80 percent of the 400 separate job searches, both white and black applicants were offered equivalent jobs; in 15 percent the white applicant beat out the black and in 5 percent the black got the job over the white. Government jobs were not included but if they had been they would have shown a definite bias toward the black applicant.
Q-Well how in the world does that square with your "employers are basically good and most will do the right thing" nonsense?
A-That desire is still there but it has to be reconciled with what they believe is in their own best interest. Once again ---- people will help others only if they don't hurt themselves by doing so.
The employers involved in the survey were suffering from paranoia brought about by recent civil rights laws that make any minority a potential walking-law-suit.
Q-You mean they had good desires but would not sacrifice their own self interest in order to act justly.
A-Nor should they. I find it quite easy to reconcile self-interest with the desire to be a good and just person. Thanks to the harsh penalties and the vague mandates of civil rights legislation, the supposed beneficiaries of those laws, minority employees, are rendered less desirable than equally qualified white employees.
Think about it! Would you risk your business and your family's livelihood if you could avoid it? Those open ended judgments that Pat Schroeder and her cohorts don't want to see capped, turn women and minorities into a time bomb for employers. Be realistic. It has nothing to do with the color of anyone's skin except in the eyes of the lawmakers. We're talking about real live people trying to protect their own interests in the best way they know how.
Q-Where, in your opinion, did the civil rights advocates go wrong?
A-First, in not distinguishing between forbidding government from discriminating according to race and forbidding private individuals.
Q-Most people believe the modest restrictions the 1964 civil rights act put on private behavior were justified by the extent and magnitude of the wrongs it attempted to rectify.
A-Don't count me among them. Liberty means any private individual may do even what may be morally reprehensible with his own property. A second mistake, I believe, was in legislating on behalf of an isolated group rather than all American citizens; equality of all individuals should have been the issue.
The third problem came later--- advocating equal outcomes rather than equal opportunities in civil rights legislation. This led to group-based favors and prohibitions that expanded beyond original expectations. Civil rights proponents began to see blacks as victims rather than as citizens entitled to equal treatment and consideration just as any other member of society.
Q-It would seen that you are not overly concerned with reparations, unequal poverty, unfairness and prejudice. Am I right?
A-I think I can best answer you by quoting James Madison: "That is not a just government, nor is property secure under it, where arbitrary restrictions, exemptions and monopolies deny to part of its citizens that free use of their faculties, and free choice of their occupations, which not only constitute their property in the general sense of the word; but are the means of acquiring property strictly so called."
Q-That could take us back to the monopolies ok'd by the Slaughterhouse cases again.
A-Or to all the so-called "Jim Crow" laws which governed labor contracts and entry into trades and professions and successfully restricted economic opportunities for blacks.
Q-Not just blacks. At the end of the 19th century San Francisco thought up ways to curtail the ambitions of hardworking, sharp witted Chinese entrepreneurs.
A-And those that argue for preferential treatment for minorities now figure they are just equalizing these past injustices. But I know it is the wrong way to go---trite as it may sound it is nevertheless the truth that two wrongs don't make a right. Favors in the form of preferential treatment, set-asides, race norming and so forth only breed resentment.
Q-You are not alone in tracing the rampant resentment of whites towards blacks and the setbacks suffered during the eighties, especially by low-income blacks, to what many consider to be unconstitutional regulation of private behavior, laws favoring one group over another and the double standards by which the races have come to be measured.
A-I believe if the government would truly protect the individual, supposedly inalienable, natural rights or civil rights of everybody---blacks, as well as other minorities will be empowered. As economic liberty increases and people are allowed to control their own destinies, I believe poverty and prejudice will decrease.
Take for instance the situation of Alfredo Santos, who was prohibited from operating a jitney service in Houston by a sixty-eight year old law designed to protect streetcars---- or the case of Nancy Dukes who was unable to sell hotdogs from a pushcart because a New Orleans ordinance arbitrarily limited its pushcart permits to two.
Q-You realize courts have a long history in upholding the police power of local governments in regulating occupations---that is considered a legitimate state purpose. By the way, what is a "jitney service"?
A-A "jitney" is really a van, and the service might be considered a cross between a taxi and a bus line. Mr. Santos had a five mile route through a poor Hispanic area where public transportation was inadequate and many residents didn't have automobiles. For one dollar he would pickup and drop off passengers anywhere along the route. I've heard of other jitneys that offer the added convenience of door to door service.
As to your first comment, the court is supposed to scrutinize any regulation that has an impact on economic liberty to see that there is a "rational basis" for the regulation. In over fifty years the Supreme Court has always found a "rational basis" which means even though it is understood that many regulations are simply to keep competitors away this exclusion of newcomers has been tolerated.
Q-What is meant by a "rational basis"?
A-I can tell you what the procedure is in determining rational basis and you can draw your own conclusion as to "what is meant". The courts ask if the regulation has a legitimate state purpose and if the means of implementing the regulation relates to that legitimate purpose. As a practical matter it is almost impossible to answer "no" to either of these questions.
Q-Along this line of thinking I recall the case not long ago, of a black man in Washington D.C. who was thwarted in his attempt to run a chain of outdoor shoeshine stands. If I remember correctly, the District Court applied that "rational basis" test and did answer "no". They found that prohibiting shoeshines on D.C. streets when the streets were used for so many other economic endeavors was not right. Do you know who I mean?
A-You must be talking about Brown v Barry in 1989. Ego Brown quit his government job to be his own boss and hopefully to enjoy the profits of his labor. He found a need for a good shoeshine and filled it. He was so successful in his approach that he ended up training so-called homeless individuals to work additional stands. The D.C. authorities shut down his business, citing a 1905 Jim Crow law forbidding shoeshine stands on public streets even though there was every other conceivable form of economic activity going on.
The Committee for Civil Rights put one of their lawyers on TV to defend the city's power to regulate shoeshines for the public good . Worst of all was an attorney from the EEOC who told the world that Ego Brown would have more dignity on welfare than he would shining shoes. Talk about an elitist Big Brother!
Q-What happened?
A-The Landmark Center for Civil Rights successfully argued that the 1905 law involved in Mr. Brown's case was originally passed with intent to discriminate on the basis of race.
The D. C. court found "the right to follow a chosen profession, free from unreasonable governmental interference, has rightly been held to be protected under certain constitutional restraints" and that protecting citizens from unreasonable economic regulations is a hallmark ". . .of American liberty, prosperity and progress."
You probably saw Mr. Brown on TV or read about him in the papers after the case was decided in his favor. Washington D.C., the city government that had originally taken away his right to engage in business, proclaimed an "Ego Brown Day" celebrating entrepreneurship and persistence.
Q-Trust politicians to do a quick turnabout to cash in on a good thing!
A-That may not have been the Supreme Court saying "no" to a rational basis review but I know our highest court struck down an ordinance in Cleveland, Ohio.
In that case the grandmother was forbidden to live with her grandson because of a zoning ordinance limiting occupancy of certain residential units to nuclear family members. Justice Powell wrote that the ordinance didn't do a very good job at addressing the city's concerns about overcrowding and congestion and he quoted Justice John Harlan who said in Poe v Ullman (1961) that liberty is protected by due process and found that ". . .includes a freedom from all substantial arbitrary impositions and purposeless restraints."
A-You mean the court found the zoning ordinance was stupid?
Q-"Purposeless", is how they put it.
A-Have you heard of Mark Anthony Nevels?
Q-I read about him. He's the black child who lived across from a first rate "magnet" school somewhere in the Midwest and sued the school district for refusing him entrance to his good neighborhood school and instead bused him across town to an inferior school. Right?
A-Right. The Kansas City schools were under a strict racial quota of three blacks for every two whites and in this case white children did not enroll in this exceptional school which happened to be located in a black neighborhood. There was room for 122 kindergartners but because only four whites enrolled only six blacks could be admitted and so 112 places in this superior school went begging and 86 eager-to-learn kids were placed on waiting lists and forced to travel to inferior schools because their skin did not conform to the policymakers' utopian plan.
Q-This is weird. Desegregation of the schools shouldn't be about achieving racial balance at the expense of educational opportunities.
A-The funny thing was the civil rights lawyer originally argued that the purpose of school desegregation was indeed racial balance and that improvements in educational opportunities would be frosting-on-the-cake---so to speak.
Q-I admit that sometimes all you have to do is label something a "civil right" and you've effectively captured the moral high ground.
A-Beware of labels. Labels are often chosen with the intent of misleading. Every legislator worth his salt knows the value of putting one of the following words in the title of his or her legislation: poor, down-trodden, disabled, elderly, women, children, civil rights, clean air, environment and others that don't readily occur to me.