By Dave Roland | 3:17 p.m. | Comments (11) | Economic Freedom, Individual Liberty, Politics, Property Rights, Regulation, The Constitution | © 2010

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1. Hey, Dave. I had a few comments I was hoping you could respond to. I will say that I disagree vehemently with you and Dr. Paul regarding the legality of discrimination based on race, simply because it has caused, and continues to cause a significant harm to a great number of people. I am not sure on what grounds you’re justifying your libertarian analysis of this subject, but I don’t think it falls in line with traditional arguments against paternalism, such as J.S. Mill’s so-called “harm principle.”

   “[T]he very idea of freedom requires us to tolerate certain decisions that we might find distasteful, in order to ensure that we have the liberty to make decisions that others might find distasteful…if one believes in individual liberty then one must necessarily be prepared to tolerate the fact that some individuals will use that liberty in ways that others might find offensive.”

   It’s not just that we find segregation or discrimination based on race, sexual orientation, etc. “distasteful”, but that we actually believe it causes individuals significant harm for unjustifiable reasons. We are not suggesting that individuals should not be able to speak or move about freely, or that they should not be able to live a particular lifestyle or consume a product, but rather that they should not be allowed to engage in behavior that significantly harms a specific group of people. Indeed, the harms caused by discrimination and other wrongs done to the black community throughout the history of the United States are still significantly present today, and place the individuals within it at a significant disadvantage that is difficult to overcome and completely unjust.

   “The effect might not be immediate, but eventually it will become plain that discrimination is both foolish and costly.”

   This is completely ahistorical.

   “A power that can be used in ways of which you approve can also be used in ways that you find repugnant.”

   You see that this applies to political power, but why not economic power as well? Historical injustices against the black community led to an extreme concentration of wealth in the white community, which gave them extraordinary power to discriminate against blacks. Whether or not discrimination based on race is on the books matters not; it is equally unjust in either case. It’s irrelevant whether it was caused by economic or political power, though whites had a monopoly on both.

   “The government’s sole responsibility would be to ensure that those who sought actively to harm others would be brought to justice and, if necessary, their victims compensated for any demonstrable, quantifiable injuries suffered.”

   Do you believe that discrimination based on race does not harm others? Or that those who practice it do not do so intentionally?

   “…those who believe that the world ought to be ordered in some particular way. But not only does it represent a denial of individual liberty, a government vested with the power to dictate decisions made by its citizens can very easily turn against those who had hoped to use it to pursue their vision of a “good” society.”

   This is unfair. You believe that the world should be ordered in a particular way. Namely, you believe that no one should be denied your concept of “individual liberty.” You believe in a vision of a “good” society, something to the effect of: “A good society is one that does not violate rights X, Y, and Z (as I have construed them). A society that violates those rights is unjust. A society should not violate individual rights or liberties.”

   Some people like to present themselves as skeptics. In a jousting tournament, the skeptic likes to present all other views as knights competing against each other, while she sits high above, judging and criticizing the competitors. But that’s not reality. The skeptic is a jouster just like everyone else.

   You have a view of the good. You are offering prescriptive claims on how to construct social policies and what kinds of acts are morally permissible or impermissible against others.

   Comment by Andrew Hanson — May 22, 2010 @ 10:10 a.m.

2. On my high school football team, if a player told a coach that they were having some kind of pain the coach would respond, “Are you hurt, or are you injured?” The coach did not mean to imply that the player imagined what they were feeling, but he was teaching them to distinguish between a discomfort through which the player could persevere and a condition in which they had suffered damage that would prevent them from continuing to play.

   It would be absurd to suggest that discrimination isn’t hurtful, and I certainly don’t mean to imply this. But there is a plain difference between emotional pain and economic or physical injury. In those circumstances – and they certainly can exist – where discrimination causes economic, physical, or even emotional injury (provided it can be proven), it is perfectly acceptable for the law to provide that the injured can seek compensation from those who inflicted the injury. But in the absence of such direct, quantifiable injury, it is not appropriate for government to intervene and deprive individuals of acting in ways that others might consider reprehensible. In fact, if you just revisit Chapter Four of J.S. Mill’s “On Liberty” I believe you’ll see that he adopts this precise position.

   To try and illustrate my point about the question of “harm” in the context of a denial of services, indulge me in some examples. Every year thousands of people apply for admission to Harvard University, and every year, Harvard chooses to turn down the vast majority of those applicants even though the school has an endowment of $37 billion – more than adequate to accept and educate every student that applied. Has Harvard harmed those it denied admission? Well, they are certainly disappointed; they may feel like they have been improperly excluded, and it is almost certain that their future employment prospects will be diminished for lack of a Harvard education. So should Harvard be required to serve those students even though it doesn’t want to? What if we changed the facts? Assume that Harvard decided it was going to discriminate on the basis of some trait other than race – say it only wanted to admit applicants whose parents had never been divorced. This might be clearly unfair, but is there any practical difference between harms suffered by an applicant who was rejected because his parents were divorced and one who was rejected based on other considerations? How would one measure any additional harm, if additional harm were believed to result? Would your assessment change if Harvard said they had new research demonstrating that children whose parents remained married made for better students? And even beyond the question of impact on rejected applicants, why does Harvard – a private institution – have any responsibility to justify its admission process?

   It should be noted that society already currently accepts certain other forms of arguably-irrational discrimination. There are women’s-only gyms and race-, gender-, religion-, age-, and sexuality-specific community organizations and scholarship funds. Businesses frequently offer people of certain ages or occupations benefits that are denied to anyone else. Bars and oil change companies may offer special deals to women that are not offered to men, and in cities where tourism is a major industry, attractions frequently offer reduced-price admission to anyone who can demonstrate they live in that area. These are all forms of discrimination, and they may not be backed by any particular “good reason”. Is a student really more worthy of a scholarship simply by virtue of the religion in which they were raised? Should the Congressional Black Caucus exclude a white representative serving a majority black district? Nevertheless, they represent decisions made by private individuals and organization about what traits in which they find value. However silly, insulting, or hurtful we may find the attitudes that led to any particular form of discrimination, if one accepts J.S. Mill’s perspective (and I do) discrimination does not inflict the sort of injury that warrants governmental interference with individuals’ liberty to hold those attitudes.

   Thus, my contention is that while racial discrimination can unquestionably be hurtful and inconvenient to the victims (as well as being morally reprehensible), the mere fact of discrimination by itself (i.e., without regard to unusual circumstances, such as if the victim is dying of thirst and the only business in a hundred miles refuses on account of his race to provide a glass of water) does not impose any direct harm of the sort that would justify legislative prohibition of the discriminatory behavior. Furthermore, if we grant the government the authority to ban one form of behavior or preference that the majority finds morally abhorrent, how can we prevent it from banning other forms of behavior that a majority might find equally – or even more – morally abhorrent, such as homosexuality, abortion, or the practice of certain religions?

   Moving to your observations about political and economic power in the Jim Crow South, you talk about the white and black communities as though they were monolithic. They were not. A small subsection of the white community had arrogated disproportionate amounts of wealth and political power, but there was also a huge percentage of the white community that did not share in those benefits. Similarly, there were some wealthy and middle-class people in the black community. The segregation laws actually operated to inhibit poor and middle class whites (as well as non-bigoted wealthier whites) from cooperating with African Americans to realize the competitive advantages outlined in my post that might have allowed them to challenge the establishment. Indeed, C. Van Woodward’s The Strange Career of Jim Crow talks about the first green shoots of racial integration in the decades following the end of the Civil War, before they were entirely uprooted by the introduction of segregation laws. While I in no way suggested that my statement about the likely success of non-discriminatory businesses in competition with discriminatory businesses was historical, I trust that you do not disagree with the general principles I stated and I note that it is ahistorical largely because governments intervened to prevent the competition from happening. I would also point you to the example of integration in the sports world, which was not dictated by concerns about civil rights but rather by the desire to win and a recognition that winning would be more likely when your team concerned itself more with putting the best players on the field than with maintaining racial homogeneity.

   Regarding my belief “that the world should be ordered in a particular way”, it seems that you are conflating ideas about morality and ideas about the proper role of government. Progressives and conservatives tend to think these are one and the same – each agree that the proper role of government is to force other people to behave in the way they think is moral. Classical liberals, on the other hand, might well have a vision of what constitutes proper, moral behavior, and they will likely work hard to persuade others to accept that vision (which is, of course what we do at the Show-Me Institute). But we strictly disavow the use of governmental power to compel others to accept that vision. To the contrary, we fervently believe that each person should be left free to seek their own “best” life – even if it should appear foolish or abhorrent to us – so long as they refrain from perpetrating fraud, theft, or violence on an unwilling or unwitting third party. Eventually, the marketplace of ideas will allow the wisest perspectives – which may or may not ultimately be those that I currently hold – to predominate.

   Comment by Dave Roland — May 23, 2010 @ 12:05 p.m.

3. Thank you for replying! Though we disagree, I enjoy learning about your perspective and thought process.

   I don’t think your interpretation of Mill is a fair one. I Chapter 4, when he is defending the harm principle, he brings up a specific example of a person who owes significant debts but continues to lead an extravagant lifestyle. In discussing the example, he says that actions that violate our obligations by causing others harm are impermissible. There is nothing wrong with the man preferring extravagance, but it is irresponsible and harmful to others to live in such a way when he holds significant debts. Further, I think there is a good case to be made that discrimination causes economic harm. I disagree that its effects are purely emotional.

   Concerning your Harvard example, which, if I am interpreting correctly, seems like it is supposed to work as an analogy to discrimination based on race, sex, gender, etc. As with most analogies, I don’t think it really works the way you want it to because there are morally relevant differences between the two situations. However, we can still discuss the analogy and try to make sense of it to the extent that the two situations are similar.

   First, you ask whether it is permissible for Harvard to turn down applicants every year despite its enormous endowment. We would likely agree that it is permissible and we might agree moreover that those who are turned down suffer an economic harm. Then, you present an alternative hypothetical situation in which Harvard begins discriminating based on one’s marital status. This appears to be an attempt at a reductio: it’s really hard to measure the harms caused by discrimination no matter what trait you’re measuring; we can’t be expected to make admissions processes completely fair–it’d just be impossible; so, we shouldn’t make any attempt to reduce discrimination (based on any trait) in college admissions (or other realms).

   Let’s think about why Harvard doesn’t have an obligation to enroll as many students as possible in a given year. I can think of several reasons. First, Harvard faces a tradeoff. It could spend its entire endowment expanding its capacity to enroll students within a year. Alternatively, it could invest and grow its endowment, enrolling students in future years. Given this tradeoff, similar to the tradeoff between consumption and investment, Harvard’s decision to enroll students now will result, at some point, result in either an inability to enroll as many students in the future, or the inability to provide the top tier education Harvard is so well known for. In terms of the long-run picture then, Harvard’s decision to enroll greater or fewer students today doesn’t necessarily result in a net harm.

   Second, there is a difference between what one may call an absolute and a relative obligation (I am not sure how this is referred to in the literature). I have an absolute obligation to save a child I see drowning in the event that I am capable of doing so. I have an absolute obligation to not murder or steal from an elderly man I see walking down the street. Relative obligations come about when I have already decided to participate in an activity, but haven’t decided who the benefactors will be. If a firm has invented an effective vaccine for a deadly contagious disease, but, initially, the supply covers a small percentage of population, how should it be able to distribute? Let’s say this disease is particularly deadly against the Mexican population. As it turns out, the firm that patented the vaccine thinks that Mexicans are really the cause of all our problems here in the U.S., and wouldn’t mind if their population were wiped out. They forbid Mexicans from buying the vaccine, and resultantly, a significant percentage of the Mexican population dies from the disease. In this case, you might say the company has a relative obligation to supply or distribute vaccines in a more fair way. They could, for example, use a price mechanism or one could even argue that Mexicans should get “first dibs” as they are the most vulnerable population. In another scenario, Harvard has decided to enroll X number of undergraduate freshman for Fall 2011. They are trying to decide what to base their enrollment criteria on. In this case, you might say that Harvard has a relative obligation to enroll students using merit-based criteria such as standardized test scores, grade point average, extracurriculars instead of things the applicants have no control over, e.g., parental income, race, sex, etc. The latter system is not fair; we expect individuals to be responsible for themselves (children to a lesser extent), not for others.

   I submit that Harvard’s obligation here is a relative one, not absolute. Furthermore, I think Harvard does have an obligation not to decide who it admits based on whether parents are divorced. If evidence can be found that Harvard is engaging in such a practice, then there ought to be legal ramifications. It is not necessary to accurately assess harm; this is rarely achieved in the current system of justice. But, it need not be. Our system of punishment is based on more complex justifications than lex talionis .

   Next, you bring up other cases where discrimination is permissible, e.g., at women’s only gyms, or organizations that offer scholarships to a specific subset of people. Again, I think that there are relevant differences that make the situations less analogous than you suggest. Regarding education or employment, there is simply much more at stake. In the case of a gym, private club, scholarship committee, or other examples you offer, there are typically adequate substitutes available and, even in the case that there are not, the harm that results is not significant. On the other hand, being denied a spot at Harvard or employment at a firm may result in significant harm over the course of a lifetime. The difference in income from a top-tier to a lower-tier school is potentially hundreds of thousands of dollars. It is still significant when comparing schools of any echelon. The case is similar for employment.

   While I agree with Mill to a large extent, again, I think a great harm was and continues to be inflicted on individuals because of discrimination. Mill actually agreed with me here, and spent a great deal of his life arguing that the government ought to provide an equal education to women because of it. To the extent that we can limit that harm, I believe it is our obligation to do so.

   Regarding the historical argument, I agree that I was treating black and white communities as monolithic, essentially for the purpose of brevity. I concede that the history was, in fact, richer and more detailed than I made it out to be. Nevertheless, my point still stands in the face of the account of history you’ve given. Libertarians sometimes speak of the government as some abstract entity manipulating us from above. But, of course, laws are largely a reflection of cultural norms in a society, brought about by a democratic system. Yes, those laws were unjust because the ethical framework that was guiding the citizenry was unjust. But, the laws cement injustice, they don’t create it. Lastly, I don’t want to speak to the sports analogy, but I disagree with your account of history.

   I think ideas about morality and the proper role of government are and should be conflated. Mill’s liberalism, for example, is justified within his utilitarian moral framework. Other justifications about the role of government are justified similarly. Your view is certainly a moral view, so is mine, so was Mill’s. My point is that we are all operating on the same level. Mill thought paternalism was unjustifiable because it resulted in less aggregate utility, not because he had some abstract intuition about the “role of government.” Such intuitions are always grounded in some theory of morality, though the defender may not readily admit it or explain it.

   We share a common framework for thinking about these issues. I, too, believe that rational discourse, rather than force of government is the best method when it comes to most of our freedoms: the right to move about or speak freely, to decide one’s goals and pursue them in life as we best see fit. Your view, I believe, goes beyond Mill’s harm principle into the realm of moral subjectivism or relativism. In cases where harm is clearly evident and significant, e.g., such as de facto segregation, discrimination based on race including college admissions or employment, it is our obligation to deter such injustice. Economic harm is often far more pernicious than any kind of physical harm, particularly in this case.

   Comment by Andrew Hanson — May 24, 2010 @ 12:29 a.m.

4. The difference with race in the south is that no ‘market’ existed at that time for integregated services because government had improperly intruded and made segregation the law. That is a ‘monopoly’ situation and different rules can apply even under libertarian philosophy. However, Rand Paul had been 1 when that bill was passed, and despite saying so, saying he had not read the bill, and saying he hadn’t considered the issues since they weren’t issues in his campaign, he wasn’t allowed to move to a different example of intrusive governmental intervention. They WANTED it in the context of race, only. He was thinking through it and debating issues. Later he did clarify that due to governmental creation of pervasive segregation, the government did have to intrude.

   From my point of view that should have occurred through the 14th amendment, not the commerce clause, expanding government’s OVERALL reach.

   Comment by spinnikerca — May 24, 2010 @ 10:10 a.m.

5. Here are some relevant quotes from Chapter 4 of Mill (On Liberty) that I am deriving my interpretation from. Here they are:

   “As soon as any part of a person’s conduct affects prejudicially the interests of others, society has jurisdiction over it, and the question whether the general welfare will or will not be promoted by interfering with it, becomes open to discussion.”

   “It would be a great misunderstanding of this doctrine to suppose that it is one of selfish indifference, which pretends that human beings have no business with each other’s conduct in life, and that they should not concern themselves about the well-doing or well-being of one another, unless their own interest is involved.”

   “Acts injurious to others require a totally different treatment. Encroachment on their rights; infliction on them of any loss or damage not justified by his own rights; falsehood or duplicity in dealing with them; unfair or ungenerous use of advantages over them; even selfish abstinence from defending them against injury—these are fit objects of moral reprobation, and, in grave cases, of moral retribution and punishment. And not only these acts, but the dispositions which lead to them, are properly immoral, and fit subjects of disapprobation which may rise to abhorrence. Cruelty of disposition; malice and ill-nature; that most anti-social and odious of all passions, envy; dissimulation and insincerity, irascibility on insufficient cause, and resentment disproportioned to the provocation; the love of domineering over others; the desire to engross more than one’s share of advantages (the of the Greeks); the pride which derives gratification from the abasement of others; the egotism which thinks self and its concerns more important than everything else, and decides all doubtful questions in its own favour;—these are moral vices, and constitute a bad and odious moral character: unlike the self-regarding faults previously mentioned, which are not properly immoralities, and to whatever pitch they may be carried, do not constitute wickedness.”

   “I fully admit that the mischief which a person does to himself may seriously affect, both through their sympathies and their interests, those nearly connected with him, and in a minor degree, society at large. When, by conduct of this sort, a person is led to violate a distinct and assignable obligation to any other person or persons, the case is taken out of the self-regarding class, and becomes amenable to moral disapprobation in the proper sense of the term. If, for example, a man, through intemperance or extravagance, becomes unable to pay his debts, or, having undertaken the moral responsibility of a family, becomes from the same cause incapable of supporting or educating them, he is deservedly reprobated, and might be justly punished; but it is for the breach of duty to his family or creditors, not for the extravagance.”

   Comment by Andrew Hanson — May 26, 2010 @ 6:33 p.m.

6. I’ve never been a big Mill fan, so don’t have much to say about the comment thread so far.

   About the larger argument, though, I’d like to point out that legal tolerance for unpopular views is widely accepted as being a crucial part of a free society in some forms. The phrase “I disapprove of what you say, but I will defend to the death your right to say it” (often mistakenly attributed to Voltaire) gets a lot of traction in free speech circles, as well it should. Even if we consider that speech harmful, supressing its expression sets a precedent that’s far more harmful.

   Many (most, even) libertarians would extend that sentiment to property rights. Regardless of how strenuously we may disapprove or protest, supressing the right of property owners to exclude people from its use sets a precedent that’s even more harmful. I realize this argument will not be convincing for anybody who accepts any form of government redistribution. Once you’ve accepted that property rights can be abrogated at that basic level, there’s no reason in the world you’d want to avoid abrogating them to protect the rights of racists. And there’s a sense in which I agree — as much as I think society benefits from strong property rights as a primary consideration, I don’t feel sorry for the racist bastards who no longer get to legally discriminate.

   That said, there are other more compelling arguments to make. I don’t have the time to make them (and my heart’s not really in it anyway), but here are a couple of links you may find useful:

   http://www.thefreemanonline.org/columns/tgif/libertarianism-antiracism/

   http://www.newsweek.com/2010/05/21/why-rand-paul-is-right-and-wrong.html

   Comment by Eric D. Dixon — May 28, 2010 @ 1:39 p.m.

7. First, I don’t think discrimination and free speech are identical. If we were actually trying to outlaw racism or sexism, I could see your point. But racist people are still allowed to express their opinions in multiple forms and assemble. Discrimination isn’t the kind of speech that brings value to a society. Speech brings value because it creates a “marketplace of ideas”, which, in the long run, is supposed to produce progress, i.e., the best ideas win out. Discrimination is not an attempt to rationally persuade someone of her idea, but rather a coercive act to prevent particular groups of individuals from gaining power so that others may maintain it. As I’ve argued, this causes tremendous harm to the victims of discrimination. While racists’ right to speak and assemble freely and advocate their ideas should be protected, I don’t see why it’s necessary that “free speech” must be extended to allow discrimination.

   Second, everyone short of anarchists supports some form of redistribution. Most people, even libertarians, believe that everyone should be granted the right to a fair trial. This is a positive welfare right. But courts require judges, juries, courthouses, court reporters, etc. That is, granting this right will require some form of redistribution. The difference is among political philosophies is ordinarily about how much redistribution is permissible (except with anarchists who do not believe in rights).

   Third, you said: “Even if we consider that speech harmful, supressing its expression sets a precedent that’s far more harmful.” This is true to an extent, but we still place a limitation on speech that causes harm. The justification for free speech is that it will lead to a tremendous amount of good and the harm will be limited. But what about speech that is made solely for the purpose of causing significant harm to others? You are not allowed to say or shout things that are false in order to incite imminent lawless action, e.g., a riot. I am fine with that limitation; it’s hard to see how such speech contributes to the marketplace of ideas.

   Comment by Andrew Hanson — May 30, 2010 @ 9:10 a.m.

8. “First, I don’t think discrimination and free speech are identical.”

   Nobody here suggested this. I specifically said they were different things. I don’t know whose arguments you’re addressing, but they’re not mine.

   “Speech brings value because it creates a ‘marketplace of ideas’, which, in the long run, is supposed to produce progress”

   This is but one of many, many reasons why speech brings value. At any rate, the potential value of speech is really beside the point for me in determining whether it should be free.

   “Second, everyone short of anarchists supports some form of redistribution.”

   Not true. It depends on the libertarian. I’d venture to say that most libertarian minarchists think that, ideally, taxes should eventually be eliminated altogether. Involuntary redistribution is not necessarily a prerequisite for a minimal state.

   “anarchists who do not believe in rights”

   Not true, either. It depends on the anarchist, some of whom believe in forms of rights and some of whom do not. Holding a theory of rights and advocating any specific form of practical enforcement of those rights are separate questions.

   “I am fine with that limitation”

   I am not.

   Comment by Eric D. Dixon — May 30, 2010 @ 3:46 p.m.

9. I’m sorry. You started talking about free speech when we were talking about discrimination. I just assumed you were inferring the two were the same (”Many libertarians would extend that sentiment to property rights”). I tried to explain why I think the cases are different. At any rate, I thought we were going to talk about petroleum.

   So, when you have X-isms, you always run into problems with what the doctrine says in the literature, and the people running around calling themselves X-ists are saying. It was my understanding that minarchists support a minimal state and therefore support a low level of compulsory spending as well, e.g., for courts, military, and police. Compulsory spending necessarily redistributes; that’s a large part of the argument against it. Apparently you don’t believe this. Please explain to me how such a state would operate. I’m not well-read in that literature.

   Generally, I think your comment is very vague. You made a bunch of bold assertions, but I didn’t really understand the foundations for any of them. I am certainly interested in understanding if I can. I tried to explain (as best I could) where I was coming from, I’d appreciate if you do the same.

   For example,
   (1) Why do you think we should have free speech? What are the other reasons it brings value?
   (2) What is your criterion/criteria should we use for deciding whether speech should be free?
   (3) How does a system with compulsory spending/a minimal state not redistribute? Can you tell me whose system in particular you’re referring to/thinking about (again, the idea is to move away from vagueness)?
   (4) What is a right? (It always seems like you guys are talking about something different than I am…)
   (5) This probably ties into (1) and (2), but why do you think that say or shouting things that are false in order to incite imminent lawless action should be legally permissible?

   Comment by Andrew Hanson — May 31, 2010 @ 12:04 a.m.

10. I think your assessment of Mill’s position is deeply flawed – particularly in light of the way you characterized that position in your own blog post at http://amateurphilosophy.wordpress.com/2010/05/24/straight-from-the-horses-mouth/.
    In that blog post you do, in fact, quote four passages from Chapter Four of J.S. Mill’s classic essay. But you do so incompletely because you omit other vital passages that ought to provide context for the bits you quoted. I think that betrays a fundamental misunderstanding of Mill’s philosophy.
    There are two primary issues, as I see it, that Mill addresses and you seem to be overlooking. First, Mill divides transactions between people in to two types. They may be either voluntary, in which both parties consent to the transaction, or involuntary, in which one intentionally puts another in a dangerous situation or impose some form of violence upon an unwilling or unwitting other. Generally speaking, Mill thinks the government has no place interfering in the former, but a clear responsibility to protect victims of the latter type of transaction.
    The question raised by the conversation in which you and I have been engaging, however, is under what circumstances (if any) the government has any proper authority to force one person to enter into a transaction they would otherwise choose to avoid. Now, as you pointed out, Mill admits that one person’s selfish behaviors may impose costs on others through “encroachments on their rights; infliction on them of any loss or damage not justified by his own rights; falsehood or duplicity in dealing with them; unfair or ungenerous use of advantages over them; even selfish abstinence from defending them against injury”. But (as is evidenced by another of the passages you quote) the peculiar evil of this sort of behavior is that it represents delinquency in a duty owed to others, which in almost every case might be avoided simply by choosing not to engage in transactions with those others or to impose oneself in their affairs. It is also worth noting that in almost all of these cases in which one person voluntarily assumes a duty to another, the other also assumes some corresponding duty to the first person.
    So I think that the starting point for most any assessment of whether, from a Millian perspective, a particular behavior is properly the subject of legal prohibition or punishment is that you must demonstrate that such a duty exists.
    The point of my initial response was that under most circumstances no person has any particular obligation to interact with anyone that they would prefer to ignore or avoid. Harvard has no obligation to accept students it doesn’t want in its classrooms. You don’t have to talk to with someone wearing a tricorner hat and holding a poster of President Obama with a Hitler mustache. A black family doesn’t have to invite Klan members into their home. None of these people owes any particular duty to any of these other people. To the extent that Mill talks about encroachments on the “rights” of others, Mill would point out that no person has any particular “right” to shop or be served at the establishment of their choice, any more than the proprietor of one of those establishments has a “right” to demand that the person must shop or be served at that establishment, which is why your reliance on several sentences of Chapter Four is misplaced.
    You (and most of society) have taken the position that business owners should have no alternative but to admit and serve people that they would otherwise choose not to. This position presumes the government’s authority not only to create a duty that one owes to another – a questionable prospect in itself – but also to create a duty that binds only one side of a transaction without the benefit of any corresponding duty from those they are commanded to serve. I do not believe that Mill would agree that such a governmental power is either justifiable or consistent with individual liberty. And, of course, the broader point that I have been trying to make is that this sort of governmental authority is a genie that you cannot easily put back in the bottle. If you concede the government’s authority to impose this kind of an obligation on others where you believe the goal is admirable and appropriate, you have implicitly empowered a future, less-friendly government to impose similar obligations on you that you may find completely odious or abhorrent.
    The other issue, however, takes us back to the question of the harms imposed by the kind of discrimination we’re discussing. I agree that harm is relevant, which is why I specifically noted that someone would be subject to liability if they refused to give a glass of water to someone dying of thirst – the harm suffered by the dying person would be easily identifiable, quantifiable, and attributable to the other’s unwillingness to provide a good or service. You said “a good case [can] be made that discrimination causes economic harm” and you later reiterated that “great harm was and continues to be inflicted on individuals because of discrimination.” I would agree both that discrimination continues to exist and that it is incredibly inefficient and can impose economic damage on a large group of people if they are systematically excluded from receiving valuable goods and services. But the relevant harm is that suffered by the individual if and when they are confronted with discrimination. As we have pointed out, in some cases that harm will be significant and obvious, and in other cases it will be too negligible to measure. If a person can prove that they have suffered such harm, I will concede that the discriminator could properly be held civilly liable for ameliorating that harm. But with garden variety discrimination (i.e., no threats of physical harm or verbal abuse), this will almost never be the case because: 1) there will almost always be nearby other service providers who will be willing to serve those people, and 2) it is difficult (if not entirely impossible) to put a dollar figure on hurt feelings or temporary inconvenience.
    And finally (for now), I’ll turn your argument that “ideas about morality and the proper role of government are and should be conflated.” On this point, I simply cannot agree because it invites precisely the sort of evils that inspired the American founders to limit the authority of government in the first place. Alexis de Tocqueville and J.S. Mill both recognized the immense danger of the “tyranny of the majority” and warned that if any given majority is permitted to give their ideas about morality the force of law, liberty will cease to exist in any meaningful sense as the majority sets about trying to force all others to comply with their own particular vision of the “good life”. Without strictly-enforced protections for individual liberty such as those that a classical liberal position prescribes, it is precisely this sort of tyranny that will threaten all who exist outside of the political majority.

    Comment by Dave Roland — May 31, 2010 @ 1:57 a.m.

11. Funding a minimal state without compulsory redistribution would work much the same as funding other non-compulsory ventures — by passing the hat.

    The primary purpose of my first comment was to provide links to other authors, with a brief preface. Here they are again:

    http://www.thefreemanonline.org/columns/tgif/libertarianism-antiracism/
    http://www.newsweek.com/2010/05/21/why-rand-paul-is-right-and-wrong.html

    Here are a few more:

    http://www.cato.org/pub_display.php?pub_id=11846
    http://econlog.econlib.org/archives/2010/05/milton_friedman_11.html
    http://mises.org/daily/804

    One of these years when I have time to write a treatise, I’ll be sure to CC you.

    Comment by Eric D. Dixon — May 31, 2010 @ 8:41 p.m.

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