Property Rights and Public Accommodations

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.