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?Activist Government? and the Rights of Minorities

By David Bernstein

(David Bernstein)

I want to analyze two positions that I?ve seen liberals take on the role of government in promoting civil rights and antidiscrimination norms.

One position is as follows: 

We liberals believe in government activism to solve important social problems, and the 1964 Civil Rights Act was an important example of where this philosophy had extremely good consequences. Therefore, when it comes to the ?Second Reconstruction,? liberalism proved its worth over the competing ideologies of conservatism, which focused myopically on state sovereignty, and libertarianism, which had no clue how to deal with the legacy of Jim Crow oppression.

Obviously, not everyone is going to agree with this formulation, but it?s not unreasonable.

A second position is as follows: 

We liberals believe in government activism to solve important social problems, and the 1964 Civil Rights Act was an important example of where this philosophy had extremely good consequences. Therefore, activist government is generally good for minorities, and the competing ideologies of conservatism and libertarianism are hostile to the rights and interests of minorities, because those ideologies are hostile to activist government. 

This doesn?t follow at all. As a matter of American history, activist government was often used to oppress minority groups. As a matter of world history, the record of ?activist government? with regard to minorities is even worse. And as a matter of political theory, it?s not at all clear why one would expect public policy in a democracy to necessarily be helpful to minority groups. 

I?ve never seen a formal academic model of this, but it seems fairly obviously to me that if a minority group is thoroughly despised by the majority, activist government will almost certainly reinforce societal discrimination. On the other hand, if the minority group has a reasonable and growing level of sympathy/empathy from the majority, activist government will likely reinforce egalitarian ideals. 

This, precisely, is the difference between U.S. government public policy with regard to race circa, say, the 1930s?when Congress could pass the overtly racist Davis-Bacon Act with the goal of excluding blacks from public works projects, Sen. Wagner was willing to remove an antidiscrimination provision from the Wagner Act to placate the AFL, which wanted to use its new power to exclude blacks, FDR was unwilling to support anti-lynching legislation, and so on (more examples can be found in my Only One Place of Redress book)?and 1964, when a significant majority of the white public supported Brown v. Board of Education, opposed racial discrimination in employment, and so on. And it helped that African Americans themselves had a lot more national voting power in 1964 than in 1930.

In short, in a democracy, government policy will tend to reinforce public sentiment. If the weighted public sentiment (including the strong preferences of the minority group itself, the strong preferences of non-minority egalitarians, and the strong preferences of majority ethnic supremacists) is tolerant of minority groups, public policy will reflect that tolerance. If weighted public opinion is intolerant, public policy will reflect that intolerance. ?Activist government,? per se, however, is neither friend nor foe to minority groups, and, even within the same country in relatively short period of time, the policies of activist government toward minorities can vary greatly with the whims of public opinion. (And public opinion does not move inevitably in a more tolerant direction; public opinion became more hostile to African Americans in the U.S. between the 1880s and 1920s, and public opinion became more hostile to Jews in various European countries in the decades leading up to WWII).

FWIW, as a Jew (and recognize that other Jews will disagree), behind the veil of ignorance not knowing in which country and under what circumstances I?d find myself, I?d much rather take my chances with a society inclined toward libertarianism than with a society inclined toward activist government.

Full post as published by The Volokh Conspiracy on May 24, 2010 (boomark / email).