Never a neutral state: American race relations and government power.

• Author: Kuznicki, Jason
• Position: Report

Economics tells us that racial discrimination is expensive. Yet social psychology suggests that humans nonetheless tend to mistrust those whom they identify as outsiders. As a result, governments can exacerbate this mistrust and thereby encourage costly discrimination by creating or maintaining official race-based definitions of out-groups and differential outcomes based on race.

This article reviews evidence from economic and legal history to argue that not only did U.S. governments incentivize and even mandate racial discrimination, but these acts tended to reinforce racial mistrust as time went by. Segregation became more strict, not less, from the end of Reconstruction until the mid-20th century, largely because of growing and self-perpetuating state action. Discrimination created its own constituency.

Some skeptics of the civil rights movement have viewed racial discrimination as an essentially private matter that did not warrant the extensive state intervention. This view is untenable. Although certain measures passed in the name of black civil rights still raise serious legal issues in light of strict constitutional construction, the civil rights movement also dismantled a wide variety of even more troubling measures. Most of these can be characterized as straightforward impediments to the freedoms of movement, trade, and association.

Although, if given a free market and a neutral state, economic incentives will tend to work against racial discrimination, American history has never witnessed a neutral state. Instead, and until the mid-20th century, the market incentives that might have worked against discrimination were repeatedly frustrated. Recent historical scholarship, notably from left-leaning scholars, has done much to show the depth and surprising recentness of state support for discrimination.

As a result, even those not ideologically on the left can rethink the civil rights movement as a complex set of tradeoffs that moved the United States from one type of interventionism to another, much more benign one. On the whole, state intervention into the lives of ordinary citizens shrank in this area of life, rather than grew. Although libertarian and conservative intellectuals of that era viewed certain developments, notably the Civil Rights Act of 1964, with great alarm, this alarm was badly misplaced.

Discrimination and the State

Opposing racism isn't a difficult call. Economists tell us that discrimination is inefficient (Becker 1971). Worse, racism is a collectivist idea that doesn't sit well with other deeply seated American values. Recent American history has seen the rollback of discriminatory practices to a degree that might have been hard for previous generations to imagine.

Yet some questions remain: Wasn't racial discrimination basically a private affair? Did we really have to enact federal laws and regulations to end it? Many of these laws dictate how people run their businesses and associations, and these restrictions are problematic to say the least. Even if we do find discrimination wrong, isn't it a private wrong? Why wasn't private moral force enough?

Such questions, while serious, can be difficult to ask. Many on the American left have dismissed libertarianism as an unserious political movement or even as a form of crypto-racism precisely because it raises them. Admittedly, many of the characteristically libertarian concerns about property rights, employment at will, and the freedom of contract have often been echoed by individuals and groups of questionable character. Yet this is no reason to reject these concerns out of hand, and it is worth continuing to consider the problem of discrimination in ways that do not simply concede the necessity of coercion in combating it.

One answer is that even until relatively recently, the state itself mandated and incentivized discrimination. In recent years, a growing revisionist literature, often sympathetic to the political left, has exposed this tendency even in popular initiatives like the New Deal (Quadagno 1994, Brown 1999). This literature is worth examining as a part of the critical history of racism, to be sure, and this is the purpose for which its authors no doubt intend it. But it is also worth examining as a cautionary tale about the dangers of special interests, bureaucracy, and unchecked government power.

Apart from mandating and incentivizing discrimination, discriminatory laws also taught discrimination, and as we shall see, the effects of this process can be observed even today, after decades of effort, both public and private, to teach the opposite principle. Various reasons can be offered for this persistence, some of which are discussed below. One thing is clear, however: The federal government and many state and local governments sent a powerful message in both word and deed that discrimination was not simply a private taste or proclivity. Instead, discrimination was a matter worthy of local, state, and federal government support. Existing private prejudices were therefore reinforced or intensified over time, and new ones were created. Contrary to what many may believe, it certainly appears possible to legislate some types of morality--above all, apparently, certain antisocial ones. Evidence from social and evolutionary psychology, examined in the next section of this article, may help explain why this should be.

While it is true that government policies enforcing racism could not have arisen without some initial popular support, the existence of these policies in turn instilled and validated discriminatory attitudes that in some respects seem to have reached further and further with each generation. Discrimination appears therefore to be a classic ease of a law creating its own constituency, as government-mandated discrimination in public life created an expectation of discrimination in private life, too.

One could spend much time reviewing what-if scenarios about how we might have eliminated a purely private discrimination through purely private means. Yet in the American context, such speculation is beside the point. U.S. governments have never been neutral. Major legal reforms would therefore have been necessary before private discriminators could have borne the full costs of their actions, as Becker's models entail. In many cases, these actors were even prohibited from making race-neutral choices at all. And relatively few in any case wanted to practice racial equality, in part because the opposite stance saw itself validated in the laws themselves, and validated as well in the inequality of outcome that has been the result of much U.S. social policy since the New Deal.

The civil rights movement thus brought two contradictory developments. On the one hand, a wide and often underappreciated array of state-perpetuated and state-endorsed discrimination was obliterated. On the other hand, the property and contractual rights of some individuals--particularly southern whites--were also infringed upon, setting a dangerous precedent that remains with us today. But between then and now, there has been no truly neutral state.

This mixed rollback of state power for indeed, that is what it was allowed many individuals to associate with one another, economically and otherwise, in ways they had previously found impossible. Moreover, public sentiment has turned decisively against racism, and it is difficult to imagine this development coming about without some state action to encourage it. Excesses in the opposite direction are worrisome, but they are decidedly the lesser evil.

Social Psychology Findings

Social psychology abounds with studies of induced prejudice in response to authority. These studies imply that predispositions toward prejudice exist in all societies, and that some forms of state action may elicit them as well. Although one popular and often correct approach to social engineering is to note that the state cannot "legislate morality," it would be far more precise to say that attempts to legislate morality meet with unintended consequences. These consequences derive from an interplay of innate human tendencies, cultural values, state action, and individual action. Social psychology has lately begun to explain why this should be so.

One such finding is that prejudice and even cruelty are far easier to elicit than one might have imagined, even among psychologically "normal" individuals. Mthough experts formerly dismissed these claims, they have since become a part of even introductory texts on psychology, sociology, and political theory (Adorno 1950, Milgram 1963, Tajfel 1981).

For example, doing as little as merely assigning experimental subjects randomly to one group or another, and then assigning differential rewards to the two groups, is sufficient to evoke statistically significant in-group preference. The differing rewards in this "minimal intergroup situation" need not be the result of competition or any measure of merit. Randomly assigned differential outcomes have had the same effect, even when group members know the assignments to be random. Preferences even persist in experimental situations in which the members of a group never saw other members of their "own" group face to face. A shared common outcome, actual or anticipated, sufficed to produce the effect (Brewer 1979, Tajfel 1982).

Note that while the relationship between bias toward members of one's own perceived group and against the members of a rival group is by no means necessary, the one is commonly found in conjunction with the other (Taylor and Moriarty 1987). In laboratory settings--at the very least--it takes surprisingly little to establish a group identity, to create a bias in favor of that identity, and to create a bias against other identities.

To understand the role of state action in fomenting prejudice, it is worth considering some more specific results from the psychological literature on bias. Experimentally, a number...