From Earnest, self-described 'libertarian-leaner', in another thread:
I do not, personally, understand this logic. I myself have never cared a whit for the notion that says that centralized local power is inherently better and less coercive than decentralized Federal power. For example, I don't find much, if anything, wrong with the Civil Rights Act of 1964; if contravening the local hierarchies and hierophants is necessary to ensure maximum liberty to the individual, so be it.
First of all, "I'm
Ernest damnit!"
(I'm definitely not Wilde about the other spelling.)
The main advantage of decentralizing of power, is that if a particular local government is that if an individual finds that local government to be either too onerous in wielding it or to reluctant to make use of it in a manner that person would find beneficial, it is generally easier for a person to either affect what that government does or to move to a different locale with a government that better suits him than it would be on a national scale. The assumption that national hierarchies and hierophants will always act to ensure maximum liberty to the individual is not one that can be rationally supported by a look at the historical record.
As for the Civil Rights Act of 1964, as stupid as private discrimination is, government laws that seek to control private acts should be subject to strict scrutiny. That would be Titles II and VII, as the rest deals with government actions. (BTW, Title II was the provision that Goldwater opposed.)
Title II passes the strict scrutiny test for me, as securing the right to travel freely for all citizens is certainly a
compelling government interest, though the inclusion of places of entertainment in the definition of "public accommodation" by Title II is stretching the boundary of compelling government interest.
Title VII with its barring of employment discrimination is more problematic. Government interference in private provision of employment is a far more substantial infringement on the liberty of a private individual to discriminate than is Title II as it telling the employer how to use its property (i.e., the funds used to pay the employee). This basically boils down to whether one holds that the government has (or should have depending upon whether you are talking about actual law or ideal law) the power to enforce positive rights, in this case the right to work of one's choosing, when such power would infringe upon negative rights, in this case the right to not have one's property put to a public use.
However even if one holds that under the Federal Constitution positive rights are either subordinate to negative rights, or that they are not including within the meaning of rights (certainly all of the enumerated rights are negative rights, not positive ones), the government could certainly achieve most of the effect of Title VII by making compliance with its bans on employment discrimination a condition of government contracts or subcontracts. Since most medium to large private employers in this country (small employers with less than 25 employees aren't covered by Title VII anyway) derive a significant fraction of their revenues from supplying the government (both Federal and State) with the goods and services they need, few such employers would be willing to forgo such revenues, and of those that might be, even fewer would be willing to face the public opprobrium that such a decision would bring them. Handling it in this fashon would be similar in function to that which the Davis-Bacon Act has on wage rates for government contracts.
