The Boundaries of Antidiscrimination Laws

The Cambridge Handbook of Classical Liberal Thought, M. Todd Henderson ed., 2018

George Mason University Legal Studies Research Paper No. LS 18-34

12 Pages Posted: 26 Nov 2018

See all articles by David E Bernstein

David E Bernstein

George Mason University - Antonin Scalia Law School, Faculty

Date Written: 2018


Because of the long, sorry history of American racism, perhaps nothing is more harmful to the libertarian “brand” than skepticism of antidiscrimination laws that apply to private parties. Yet race is only one of many protected categories under modern anti-discrimination laws. The proliferation of antidiscrimination laws protecting groups ranging from people over age forty to members of motorcycle gangs explains why even libertarians who are especially sensitive to America’s history of racism are loath to concede the principle that the government may ban private sector discrimination. There is no natural limit to the scope of antidiscrimination laws, because the concept of antidiscrimination is almost infinitely malleable. To concede the general power of government to redress private discrimination through legislation would be to concede virtually unlimited power to the government.

Besides the political ramifications of opposing popular civil rights legislation, many critics of adopting a laissez-faire posture toward discrimination in the private sector seem to believe that antidiscrimination laws somehow magically transform members of despised minority groups into full equal citizens in the eyes of the majority. Antidiscrimination laws can plausibly accelerate trends toward greater tolerance of minorities. These laws can also force a local majority, such as southern whites in the 1960s, to heed the values of a national majority, such as non-southern whites, who by 1964 had turned strongly against racial segregation. Antidiscrimination laws are unlikely, however, to provide much protection to a minority group when the majority of the voting population is hostile to that group.

Given their strong anti-statist presumptions, libertarians will generally remain presumptively opposed to the panoply of modern private sector antidiscrimination laws. That said, the basic federal laws banning discrimination in employment, housing, and public accommodations, as originally conceived in 1964—before the courts and civil rights bureaucracies devised problematic doctrines like “disparate impact” liability—were relatively benign. If everyone from farmers to military contractors to ACORN is able to successfully lobby the government to protect their interests, it’s not especially troubling that members of minority groups, who have more legitimate grievances than most legislative supplicants, also use legislation to protect their interests. Indeed, it would be troubling if there was a sudden popular move to repeal antidiscrimination legislation, if it were unaccompanied by broader libertarian political trends, because it would suggest that opposition to such laws came arose from hostility to minority groups, not from opposition to Big Government.

Libertarians can and should insist, however, that a line be drawn at the point where such laws infringe on the constitutional rights to freedom of speech, freedom of religion, expressive association, and other civil liberties. The laudable goal of the ever-broadening antidiscrimination edifice is to achieve a fairer, more just society. Laudable goals, however, don’t justify giving the government excessive authority, or disguising the implications of doing so.

Keywords: antidiscrimination, libertarian, race, racism, discrimination, civil rights

JEL Classification: K10

Suggested Citation

Bernstein, David Eliot, The Boundaries of Antidiscrimination Laws (2018). The Cambridge Handbook of Classical Liberal Thought, M. Todd Henderson ed., 2018, George Mason University Legal Studies Research Paper No. LS 18-34, Available at SSRN:

David Eliot Bernstein (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

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Arlington, VA 22201
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