Jim Crow Was Bad, But The Civil Rights Act Is Worse


In a Libertarian Party debate a couple weeks ago, one exchange stood out in particular. Austin Petersen claimed that everyone has a right to obey their conscience. The eventual nominee, Gary Johnson asserted that the religious freedom laws being passed today are “all about discriminating against gays.” It began to get heated when Johnson brought it back to the “Nazi cake baker,” a reference to the idea that people shouldn’t be discriminated against—even if that means a Jew must bake a cake for a Nazi party, a position which Johnson holds.

Johnson then went on the offensive, stating that, “I would have signed the Civil Rights bill of 1964, Austin would not have,” which Petersen denied.

But why? I understand that it’s unfavorable in the politically correct social-justice-war-zone in which we live to criticize the Civil Rights Act (CRA), but we’re all adults here. Somebody has to say it and if the Libertarian presidential candidates don’t have the guts, I’m glad to do it for them: the problems that the Civil Rights Act attempted to remedy were bad but the Civil Rights Act was worse.

For a century after the Civil War, southern states and municipalities enacted laws that forced racial segregation. These Jim Crow Laws mandated de jure racial segregation in public facilities, voting access, and public services, putting an institutional tint on the racism that pervaded the land. The ostensible intent was to make blacks “separate but equal” but not surprising, conditions for blacks were severely inferior and underfunded, making it separate and unequal.

This forced segregation was clearly unjust and morally reprehensible. By 1964, there was enough social enthusiasm throughout the country to overcome the stubborn racism of the South and Congress decided to take action to right the wrongs and passed the Civil Rights Act. Congress should have stopped at outlawing the unjust racist laws, but instead, like most government programs that attempt to fix issues (especially issues caused by government itself), the Civil Rights Act of 1964 went too far and made things worse. It’s important to note here that I’m not talking about the lynchings and horrific abuse of blacks throughout the South, which was already illegal. I’m talking about the mandated discrimination by government agencies. The CRA’s solution to force public accommodation was worse than the problem in three specific ways.

1. The Civil Rights Act Infringed on Civil Rights

Like most government programs, the Civil Rights Act was based on a good and just intention, specifically to end the institutional racism prevalent throughout the South. But, it went too far and ultimately infringed on certain civil rights. It was absolutely just to eliminate any discrimination at an institutional/governmental level, but forcing individuals not to discriminate in their own private matters violates their civil rights to freely associate.

Rand Paul asserted this position before his presidential campaign, saying, “I think it’s a bad business decision to exclude anybody from your restaurant — but, at the same time, I do believe in private ownership.”

When a government can force people to do things against their will just because they own a business, we’re left with the astonishingly troubling notion that someone could be financially ruined or thrown in jail for not baking a cake.

2. The Civil Rights Act is Arbitrary

If law has to have one quality to be legitimate, it’s that it has to be objective. Otherwise, we have no rule of law, we have the rule of whoever wrote or interpreted the law. The Civil Rights Act, unfortunately, is not objective. The general perception of the Civil Rights Act is that it protects against arbitrary discrimination, but it actually enforces arbitrary discrimination.

The CRA made it illegal to discriminate based on the specific classes of race, color, religion, sex, and national origin, and to some, that may seem reasonable. But why not include ethnicity or gender identity? Why is it okay to discriminate based on some qualities and not others? Congress added people with disabilities to the protected class, but why is it still okay to discriminate against people if they’re poor or ugly? This is about as arbitrary and illogical as the prejudice it aims to eliminate.

The simple fact of a government specifying which classes are protected means that everything else is unprotected and there is no legitimate distinction that can be made between the different classes. It inevitably creates a situation where people will seek legal protection for every imaginable class—intelligence, attractiveness, beatbox skills—and eventually it will be illegal to discriminate against anyone for any reason, a societal absurdity.

Until then, we have a horribly arbitrary law that institutionalizes discrimination in order to end discrimination, an unmitigated logical fail on the part of the authors.

3. CRA Gives the Illusion that Government Grants Rights

When advocating for the Civil Rights Act, President Kennedy said we need a law, “giving all Americans the right to be served in facilities which are open to the public—hotels, restaurants, theaters, retail stores, and similar establishments.” This statement should send shivers down your sensible spine. It shows a fundamental misunderstanding of rights and the Natural Law on which the country was founded and inevitably leads to complete tyranny. Worse than a racist government is an all-powerful government, which people think can grant or take away inalienable rights.

The government doesn’t give rights to people; people have rights by the nature of their being human. The government can honor our rights, but they can never give us new ones and that’s what’s wrong with the CRA. Congress acted as if they were handing out rights like Santa Claus handing out presents to all the good little children. Eventually, of course, the bad children will want presents too and they’ll get them because, hey, government’s giving ‘em out. Government doesn’t give rights, it gives privileges and the problem with this is that whenever government gives more privileges, it necessarily must take it away from others (everything the government gives to you has been taken from someone else).

Not everything is a right, even if the government says it is. Here’s a cheat sheet: you have a right to life, liberty, and property. You do not have a right to a job, to someone else’s services, or a right to use a private bathroom.

Because the Civil Rights Act is associated with ending racism in America (how’s that going for ya?), criticism won’t be welcomed, but as Milton Friedman said, “One of the great mistakes is to judge policies and programs by their intentions rather than their results.” CRA is a typical piece of legislation that takes the good intentions of justice and freedom and turns them into injustice and the tyranny of a politically correct thralldom. Of course, we haven’t seen the worst of it yet as it has set us up for Orwellian thought control. It was bad for the government to coerce people based on the color of their skin, but it’s nothing compared to the government coercing people based on the content of their thoughts.

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JSB Morse is a husband, father, author, entrepreneur, and philosopher. He has recently written "Paleo Family" with his wife and previously written the political thriller "Gods of Ruin" and the spiritual fiction "Now and at the Hour of Our Death". He is editor of "The Libertarian Catholic" and can be found at jsbmorse.com.