It Is Dangerous to Be Right When the Government Is Wrong - Andrew P. Napolitano [43]
In fact, many companies—including private railroads, for example—refused to adhere to Jim Crow laws. Economic historian Dr. Jennifer Roback argues that private railroads did not want to be segregated but were required to do so by law. Why did these private companies take that position? Because Jim Crow legislation was interfering with their right to run their businesses! Jim Crow legislation was interfering with their freedom to associate and to conduct business with whom they pleased! Just as blacks could not associate with whites in both public and private places, whites could not associate with blacks. So, the railroads objected. One railroad company, the Mobile Light and Railroad Company, “flat out refused to enforce” the Mobile, Alabama, segregation law.12 It is simple economics and business practice to integrate; it is far more costly to maintain and run four railway cars than two railway cars.
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So, it was not the free markets of the South that perpetuated racism. It was the government working in conjunction with racist individuals to “intimidate those who would have integrated” that perpetuated racism.13 Jim Crow is a clear demonstration that we simply cannot trust the government to decide what discrimination is acceptable and what discrimination is deplorable. We, as free individuals, must have the right to associate, voice our opinions, and act according to our value systems, allowing conversation, discourse, and free markets to weed out the unacceptable beliefs in society.
The government is wholly irrational, inconsistent, and arbitrary as exhibited in the implementation of Jim Crow laws across the South. With its irrationality, inconsistency, and arbitrariness, the government comes up with some pretty nonsensical outcomes. Jim Crow laws merely demonstrate how the government will continue to disappoint in its ability to protect the freedom of association.
Looking into the next century to demonstrate how private companies can successfully abolish segregation without the “help” of the government: In 1947, the Brooklyn Dodgers integrated on their own timing and accord. The fact that this team voluntarily quashed segregation earlier than the rest of the MLB is testament to its success, winning six pennants between 1947 and 1956, with the help of Jackie Robinson. The takeaway here is: The state is not the answer to abhorrent racist behavior. Let individuals and private businesses express themselves! Wrongs will be righted. Individuals and businesses will protest the injustice. Individuals and businesses will denounce and reject racist, misogynist, and homophobic behavior. Individuals and businesses will criticize loudly. But the single fact remains: If we are truly a free society, we must have the full right to associate or not to associate with whomever we please—and that means people have the right to be racist.
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The Civil Rights Act of 1964 and Private Property
The Civil Rights Act of 1964 prohibits the state and the federal government from making decisions based on race and from enforcing decisions based on race. The impetus for the Civil Rights Act was Jim Crow—government-mandated and government-enforced racism. At the time, the state’s invasive hand had, once again, violated the individual’s freedom of association, and the Civil Rights Act was central to the abolition of racist and unconstitutional Jim Crow.
However, while the eight parts of the Civil Rights Act that restrain the government itself are crucial and constitutional, two provisions of the Act violate the fundamental rights of individuals—the freedom of association and basic property rights. The unconstitutional provision, Title II, prohibits private persons from making decisions based on race