Social Justice, Libertarianism

How to Be a Bleeding Heart Libertarian About Race

Sometimes you write a book to tell people what you think. But sometimes you write a book to find out what you think. Several years ago, a chance encounter with a student prompted me to realize that although I had been teaching and writing about a wide variety of issues in applied ethics for well over a decade, I had never taught, written about, or even thought much about anything having anything to do with race. I felt bad about this. I wondered what I would think about such issues if I did think about them. So I decided to write a book.

The result was Should Race Matter?(Cambridge University Press, 2011), a critical discussion of what struck me as the five most interesting and important issues in the area: slave reparations, affirmative action, hate speech restrictions, hate crime laws, and racial profiling. Lacking any kind of preconceived theory to apply to these problems, my approach was entirely Socratic: start with premises that virtually everyone on both sides of each debate already accepts and see where they take you. They ended up taking me to a somewhat idiosyncratic combination of conclusions. Not many people, for example, defend both slave reparations and racial profiling. I did. People tend to treat hate speech restrictions and hate crime laws as peas in a pod: you’re for them or you’re against them. I argued against hate speech restrictions but in favor of hate crime laws. And opponents of affirmative action typically claim that it’s impermissible while defenders of the practice typically insist that it’s obligatory. I decided that they’re both wrong. As the publicity materials for the book put it, “Boonin arrives at an unusual and unorthodox set of conclusions, one that is neither liberal nor conservative, color conscious nor color blind.”

But I’m writing here to let you in on a little secret. The book is actually more unified than it might at first appear. While I think it’s correct to say that its set of views as a whole is neither liberal nor conservative, and while there is no overarching theory connecting its five largely independent discussions, I do think that there is a coherent philosophy that could be used to justify all five of its seemingly disjointed conclusions. The book’s subtitle was “Unusual Answers to the Usual Questions,” but it could just as well have been “How to Be a Bleeding Heart Libertarian About Race.” I don’t have space in a single blog post to give this claim anything like a satisfactory defense. But I will briefly sketch out what I have in mind here and encourage those of you who are interested to take a look at my book and to be open to the possibility that the five conclusions I defend in it represent precisely what a bleeding heart libertarian should think about these issues.

I’ll start with perhaps the easiest case of the five in terms of figuring out what a libertarian should think: hate speech restrictions. Virtually everyone on both sides of that debate agrees that there should be a presumption in favor of freedom of expression and that the burden of proof lies with those who would impose such restrictions. Surely a libertarian would concur. In my two chapters on hate speech, I argue that traditional justifications for speech restrictions (that the words involve threatening to harm someone, for example, or that the words are libelous) cannot be successfully extended to justify hate speech restrictions and that the more novel kinds of argument that could justify such restrictions (that the words are hurtful, for example, or in some sense subordinate people or silence them) have implications that virtually everyone would reject. Virtually everyone on both sides of the hate speech restriction debate, for example, would agree that you should have the right to tell your brother that you hate him, that Rush Limbaugh should have the right to tell his listeners that women should stay at home and raise children, and that a minister should have the right to tell his congregants that abortion is a sin, but I argue that each of these attempts to justify hate speech restrictions is incompatible with the existence of at least some of these rights. These are all rights that any self-respecting bleeding heart libertarian would surely insist on recognizing, too, and so, perhaps not surprisingly, my arguments in those chapters establish that bleeding heart libertarians, in particular, should oppose hate speech restrictions.

But what about hate crime laws? Race-based hate crime laws take ordinary crimes like vandalism and assault and add an extra amount of punishment for them in cases where the offenders select their victims because of the victim’s race. Many people who oppose hate speech restrictions think that doing so commits them to opposing hate crime laws as well. This is because they view the extra amount of punishment that is added to the offender’s sentence as punishment for the offender’s offensive thoughts and rightly believe that people should not be punished for having offensive thoughts. In my treatment of hate crime laws, I develop a detailed response to this objection. The response is grounded in the claim that there are sufficiently parallel cases in which virtually everyone on both sides of the debate will agree that it is perfectly appropriate for the state to take an offender’s mental state into account when deciding on an appropriate sentence. The only difference between first degree murder and negligent homicide, for example, is a difference between the mental states of those who commit them, and virtually everyone agrees that if there is going to be a state and the state is going to punish people for breaking the law, then it’s appropriate for the state to inflict more punishment in the former case than in the latter case. Bleeding heart libertarians should be on board with this claim, too, and so if the arguments in my chapters on hate crime laws are successful, they show that bleeding heart libertarians have good reason to stop worrying and learn to love hate crime laws.

The claim that the United States government owes reparations to the current generation of black Americans because of the unjust harms that were inflicted by slavery and Jim Crow laws in the past is widely associated with a kind of collectivism that is presumably anathema to bleeding heart libertarians: white people as a group mistreated black people as a group in the past therefore white people as a group have inherited a responsibility to do something for black people as a group in the present. The fact that I personally had nothing to do with inflicting any of these past harms strikes many people as a perfectly good reason to conclude that I shouldn’t be made to pay anything toward rectifying them, and it may well seem to be a particularly good reason from an individualist libertarian perspective. In the two longest chapters of my book, though, I argue in some detail that the reparations position can be successfully defended without appealing to any kind of objectionable racial collectivism. Starting from a simple case like one in which I vandalize your car and incur an obligation to compensate you for the harm I have caused you, I try to show that none of the differences between this case and the case of the lingering harms that continue to be caused by the legacy of slavery and Jim Crow can be used to undermine the case for slave reparations.

Two differences between the car vandalism case and the slave reparations case are particularly likely to lead many libertarians to be deeply suspicious of the position I take on this subject. In the vandalism case, the person who is harmed is the same person as the person who is owed compensation while in the slavery case, the people who were harmed are not the same people as the people who are said to be owed compensation. And in the vandalism case, the person who owes the compensation is the same person as the person who caused the wrongful harm while in the slavery case, the people who are said to owe the compensation are not the same people who caused the wrongful harms. These are indeed significant differences, but I think that they can be shown to be irrelevant by appealing to claims that are fully compatible with libertarianism. Suppose, for example, that fifty years ago, the government wrongfully buried toxic waste in a residential neighborhood and that doing not only harmed the people who lived there at the time but also caused lingering effects that continue to harm the people who live there today. I see no reason for a libertarian to deny that the current residents would have a legitimate claim to compensation for suffering these harms even if they were born after the wrongful act that caused the harm took place. And suppose that a treaty that the United States government ratified fifty years ago commits it to defending a particular ally who is currently under attack. I see no reason for a libertarian to believe that the country’s obligation to defend this ally expired when the particular individuals whose signing of the treaty generated that obligation died. Since libertarians will surely find the claim that I would owe you restitution for vandalizing your car to be uncontroversial, and since I think I can show that this case is relevantly similar to the reparations case by appealing to claims about cases like the toxic waste and the treaty obligations that libertarians will also accept, I believe that my defense of slave reparations is actually one that bleeding heart libertarians should be perfectly comfortable with.

The slave reparations position is widely viewed as considerably more radical than the view that we have an obligation to practice affirmative action. Virtually everyone who supports the former view supports the latter view while even many who support the latter view are skeptical of the former view. But while I believe that the former view is correct, I believe that the latter view is mistaken. In the two chapters on the subject in my book, I argue that affirmative action is not obligatory although it is permissible. In short, it’s morally optional. This is a view that seems to leave supporters and opponents of the practice equally dissatisfied, but as with the other positions I take in the book, I attempt to show how it follows from a number claims that virtually everyone on both sides of the debate already accepts. In defending the claim that race-based affirmative action is morally permissible, for example, I appeal in part to the claim that it is permissible for a grocery store (whether private or part of a military base) to hire a person with Down syndrome to bag the groceries even if she is clearly less efficient than other applicants and that it is permissible for a public or private university to take the geographic origin of its applicants into account when deciding which ones to admit. In defending the claim that race-based affirmative action is not morally obligatory, I appeal in part to the claim that geography-based affirmative action isn’t morally obligatory either, and to the claim that organizations that are evaluating candidates have no obligation to take other forms of potentially unfair disadvantage into account in doing so, like giving preferential consideration to a somewhat less qualified white college applicant whose high school career was hindered by the fact that his father was sent to jail for a crime he didn’t commit over a somewhat more qualified white applicant who suffered no such disadvantage during his high school years. It seems clear to me that bleeding heart libertarians should accept all of these claims along with others that I appeal to in those chapters. And so it seems clear to me that this middle of the road view is the position on affirmative action that bleeding heart libertarians should take.

Perhaps the hardest sell for some libertarians in my book will prove to be its defense of the claim that, at least under certain circumstances, it is permissible for the state to engage in racial profiling. The strongest arguments against racial profiling appeal to the claim that it violates one or the other of two fundamental rights that we have against the government: the right against unreasonable searches and seizures, and the right to equal treatment. Surely bleeding heart libertarians will strongly endorse the existence of these rights, and this may well seem to show that they should be strongly opposed to racial profiling. But in the concluding chapters of my book, I argue (among other things) that neither right can be used to ground a satisfactory argument against racial profiling. If the right in question is interpreted in a way that renders it strong enough to rule out racial profiling, it will also rule out other practices that virtually everyone will agree are perfectly acceptable. If the right is interpreted in a way that permits these other practices, it will also permit racial profiling. In developing this kind of argument, I appeal in part to the claim that the following are permissible things for the government to do: inspect the bags of every person who attempts to board an airplane at a public airport, take race into account when casting someone to play Abraham Lincoln and Frederick Douglas in a play to be performed at a national historical site, and include race when circulating a description of a criminal suspect being sought by the police. I believe that, at least upon reflection, bleeding heart libertarians will agree that these practices are all permissible. If I’m right about that, and if the arguments in my book are correct, then bleeding heart libertarians should reluctantly come to the same conclusion that I reluctantly came to: there turn out to be no convincing arguments against the permissibility of racial profiling.

I said at the outset that Should Race Matter? takes a Socratic approach, arguing from premises that virtually everyone already accepts to conclusions about a variety of race-based controversies. I’ve tried here to briefly sketch a set of reasons for thinking that the seemingly disparate positions that I defend in that book could all be unified under the umbrella of a bleeding heart libertarian approach to racial issues. If I’m right about all of this, though, you might well wonder: does this mean that premises that virtually everyone already accepts can be used to justify bleeding heart libertarianism? That’s a good question. I’m not sure what to think about it. Maybe I should write another book.

UPDATE (7:23 AM PST): The version of this post that went up originally was a draft version. The final version is up now – please note the added paragraph on reparations.

  • Jameson Graber

    I wasn’t aware that opponents of affirmative action took any other position than the one you take. Of course it’s morally *acceptable,* as long as it isn’t forced on others. The main conflict arises when talking about public universities. In that case, who gets the right to determine the policy of the university? In all other cases, no one argues that it should be forbidden to have affirmative action. Do they?

    As for your racial profiling argument, you must have some pretty lengthy explanations in your book, because I’m not seeing how your examples (checking bags and casting for a play) are remotely equivalent to racial profiling.

    And finally, I’ve never considered reparations to be a yes/no question. Tell me how much would be paid, and to whom, and give me justification. Then I’ll give a yes or a no.

    • Theresa Klein

      There are people who argue that it should be forbidden, since it is essentially discrimination *against whites* based on race. Given that there are a fixed number of places, any minority who gets accepted based on race who otherwise wouldn’t have, by definition means that there is a more qualified (if only marginally) white person who is not accepted, because of their race.

      Edit: I think that affirmative action should be permissible, but then, I also think private businesses should be allowed to discriminate too.

      • Jameson Graber

        I guess it does present a problem if you want to have both anti-discrimination laws and affirmative action.

        The problem with the whole debate is figuring out whether being a minority is a disability or whether all people really are to be treated as equals (even when they’re not). The comparison to hiring someone with down syndrome is revealing.

        • Theresa Klein

          Exactly. If you are going to have anti-discrimination laws, then affirmative action is in direct conflict with them. The way I see it, the state should not be allowed to discriminate, or use affirmative action, conversely private businesses should be allowed to do both.

        • Les Kyle Nearhood

          Well currently in our society we have both anti discrimination, and affirmative action, and we are all totally equal except some are victim classes and they are more equal than others.

      • adrianratnapala

        I think this is why the current jurisprudence says that a university can have AA for the purpose of increasing diversity, but not for balancing racial differences. This is messy and not easy to enforce, but the principle makes sense: Universities are allowed to tweak their admissions to achieve educational goals. For example they might decide to weight maths less or more than they do English or football. Diversity is also such a goal, and although you and I might be skeptical about it, we are not the regents of a university.

      • Linear

        You think that affirmative action by the state should be permissible?

        • Theresa Klein

          No. Just private groups.

      • j r

        There are people who argue that it should be forbidden, since it is essentially discrimination *against whites* based on race.

        This, by the way, is a fairly bogus claim. Schools that practice affirmative action tend to admit about the same number of white students as schools that do not. It is the number of Asian students where the discrepancy shows up.

        The reason for this is simple. Affirmative action is only one among a number of extra-academic criteria that schools use to determine admission. It gets the most attention, for political reasons, but it’s far from the only one. More to the point, when it comes to the other criteria (eg being a legacy, having wealthy parents who might donate large sums, having parents who bankrolled some do-gooder trip to the third world, being recognized in some esoteric activity, etc.) whites are over-represented.

    • adrianratnapala

      From the text above it seems that DB ends up treating public and private institutions much the same, and moreover, this is a deliberate and though-out position. I would like to know about his reasoning.

      For my part, if it is permissible for public universities to have affirmative then I see no reason why it is impermissible for the state which owns it to regulate or ban the practice. A majority in US supreme court seems to agree with me, but several justices do not.

    • Linear

      Can you provide a realistic example of reparations for slavery that you would say yes to?

      • Jameson Graber

        No, honestly, I can’t. I suppose that makes me pessimistic about the chances of reparations ever happening.

  • Theresa Klein

    I pretty much agree with all your assessments. Though the slave reparations case deserves more discussion. IMO, one would have to prove descent from a slave held in US territory between 1776 and 1865. Also, I would implement it as a land grant or tuition stipend program, not as cash payments or tax credits. The reason for that is that too many people when they get a windfall tend to blow it with no long-term benefit, and the social ills in the African American community, especially among the descendants of slaves, would tend to make that likely. Obviously welfare hasn’t helped much, and an extra tax credit would just have the same effect.
    Land grants would be symbolic though, given the “40 acres and a mule” promise.

    • Linear

      Would historical affirmative action or government grants specifically for blacks or black women count? Do private grants count?

      Your avoidance of cash reparations is interesting because you fear they will squander it. Is the justice you seek to bring blacks into statistical parity with the mean, economically?

      • Theresa Klein

        I think cash grants also have this problem that you can’t put a number on the amount of money that is sufficient. There will always be people who will squander it and then demand more.
        But giving someone a college education or a hard asset like farmable land gives them something they can get a return from indefinitely. I think that comes closer to real justice for the historical legacy of slavery than writing a check too, given that so much of it is in terms of lack of education or capital.

        • Linear

          Yeah, even with education and land it is hard to calculate an appropriate limit of compensation for slavery, which is why I asked about whether you would judge justice by economic statistics (which I find morally problematic).

          That said, the federal government does have a lot of land and there are probably worse ways to privatize it.

          • Theresa Klein

            Well, no I wouldn’t use statistics. it would be maybe a 20-40 year period with a sunset date where anyone who can prove descent from a slave is offered a land grant or a college education. They either turn that into a sustainable source of income and pass that heritage on to their children or they don’t.

          • Linear

            But aren’t you looking at statistics to conclude that what has been done thus far has been insufficient compensation? i.e. that there is still a need for reparations?

        • Linear

          And what’s worse is that extant government policies have made blacks worse off. Will they then deserve reparations for that?

    • Les Kyle Nearhood

      I think reparations of any type is a total political non-starter. It would set race relations in this country backwards many years. It would cause no end of resentment. It would also be nearly impossible to establish in any way which is just.

  • Aeon Skoble

    Yes, if _YOU_ vandalize my car, _YOU_ owe me compensation. The problem with reparations is that we don’t have a clearly identified and culpable wrongdoer (never mind the problems with clearly identified victims). Without that, you are making Smith liable for Jones’ wrongdoing, and that’s not consistent with even rudimentary classical liberalism, never mind BHL.

    • adrianratnapala

      Ok, so you cannot be held liable for particular whippings given to particular slaves. But there is a separate, collective, sin of permitting slavery and the first place and thus creating the situation that put people under the lash. Overall I think reparations are a bad idea for pragmatic reasons, but philosophically, they are OK. By being a citizen of a state you take a share in the liability for whatever the nation as a whole does wrong.

      By the way: why do we hear so much talk about slave reparations and not about reparations for Native Americans? Is it because those issues were dealt with long ago under treaties?

      • Aeon Skoble

        “there is a separate, collective, sin of permitting slavery and the first place” No American alive is guilty of that sin.

        “By being a citizen of a state you take a share in the liability for whatever the nation as a whole does wrong.”
        Not at all. Not if you didn’t consent to it. By that reasoning, blacks in the Jim Crow south were liable for their own oppression. This is a completely wrong way to think about responsibility.

        • adrianratnapala

          Well if tax money is used to compensate them, they will be, in part paying their own compensation. Weird when you think about it like that, but not really a big deal.

      • Linear

        The problem is that slavery was not federally required to be permitted. Some states banned slavery, for example. Is it a sin for states to permit slavery in other states? If so, did the civil war have any bearing on that “permission”?

      • TracyW

        Doesn’t that moral philosophy imply, therefore, a pretty hefty disincentive for recognising things a nation does as moral wrongs?
        The fight to overturn a morally bad set of rules is very costly in and of itself. Changing people’s minds is painful. Saying “okay, you do all this, and then on top of this you’re financially liable for all the past wrongs done” is raising the cost of improving laws drastically.

      • Les Kyle Nearhood

        there are many holes in your reasoning but I will address one. A huge bloody war was waged by white Americans in which over 1/2 million were killed. Is that not payback for “collective sin” ?

      • Linear

        By the way: why do we hear so much talk about slave reparations and not about reparations for Native Americans? Is it because those issues were dealt with long ago under treaties?

        Yes, I think you are basically correct:

        The Native American Case: No Reparations Involved

        Reparations advocates also claim that, in recent decades, several Native American nations received reparations in the form of money and land for actions that occurred a century or more ago. For instance, in 1986 the Ottawas of Michigan received $32 million based on an 1836 treaty.

        The reality, however, is that these were not “reparations” but rather settlements involving land disputes between Native American tribes and the U.S. government, under legally binding treaties.

    • I doubt this will ease your concerns, but David wrote a paragraph addressing just this objection. I goofed, though, and forgot to add it to the post. It’s there now. Please see above.

      • Aeon Skoble

        Right, it doesn’t. Because saying “the government” has to pay means you and I have to pay. So that doesn’t make the problem go away at all. Particular people in the government buried the toxic waste, those people, and I suppose the people on behalf of whom they were acting, are responsible. But you didn’t bury the toxic waste, and neither did I, so it’s disanalogous to the car-vandalizing case.

        • Bugsby

          Agreed. I found almost all of what is argued for in this post to be reasonable (as in, I don’t necessarily agree with some of these things, but I can see how fruitful analogies can be drawn, and the resulting positions aren’t obviously wrong; maybe I’ll pick up the book and see them spelled out in more detail). The only exception was the case of reparations. Here is the core dilemma: either “the government” is nothing more than the collection of individuals who compose it at any given time, or it is not. If the former, then the intuition that reparations are appropriate disappears for me: In every sense, the responsible parties are long dead. If the latter, then the case is no longer analogous to the case of reparations, since the damaging party is still around, and its actions are harming current individuals (albeit somewhat indirectly). And this isn’t the case when we are talking about reparations. The only way to save the analogy is by claiming that “white people” and “black people” are groups that have been around since the time of slavery. And while collectivism might be an appropriate assumption as applied to the legal fiction of a government collective, it sure doesn’t apply to racial groups.

        • TracyW

          Also, presumably burying the toxic waste was illegal at the time it was buried. But slavery wasn’t illegal, until the government banned it. Isn’t this case like retroactive application of laws?

  • mike mace

    Yes, let’s see how even more fractured we can make this country with reparations.

    • Before the Civil War one could have argued against promoting the abolition of slavery on the grounds that it would further fracture the country–which indeed it did. I don’t think that was a compelling argument against promoting abolition though.

      I’ve read Ta-Nehisi Coates’s original article and blog posts on the subject of reparations. If I’ve read him correctly, his central point is not that we’re absolutely morally obligated to pay actual reparations, come hell or high water. Rather I read him as saying that we’re morally obligated to consider whether reparations are warranted, how much, and to whom, regardless of whether any reparations actually get paid in the end.

      • mike mace

        I think your reference to the Civil War is appropriate.

      • Les Kyle Nearhood

        I think it is inappropriate. The civil war itself and all it’s horrors was itself the reparation for slavery. Mace’s first thought was the right one. Do we need to consider something that will itself cause more harm than good? No.

        • “Do we need to consider something that will itself cause more harm than good? No.” Isn’t that a bit of a prejudgment, especially given that my point was concerning serious discussion of reparations prior to any decision about paying them?

          I use the following example to guide my own thinking: Suppose that Peter forcibly kidnaps Paul and his wife and forces them to work as slaves for many years. Suppose also that Peter and Paul both have sons and then soon after die (along with Paul’s wife) while their sons are still children. Clearly Peter Jr is not personally responsible for the sins of Peter. Is Peter Jr morally obligated to at least consider the question of whether and to what extent Paul Jr is owed some recompense for the harms done to his father and mother?

          I think yes, but I recognize that others may have serious arguments for why this isn’t so. However I think that Peter Jr saying “that would do more harm than good” is not a serious response, any more than Peter Jr saying “Hey dude, not my problem.” It’s that sort of thinking that I believe Ta-Nehisi Coates was arguing against, basically Americans dismissing the issue of reparations out of hand without bothering to seriously consider the issue.

          • Linear

            Is the premise correct that Americans have not yet seriously considered the issue? If so, what would it look like if they had?

          • I think a serious look at the issue of reparations would basically expand on the recent Ta-Nehisi Coates article: It would include additional history on any harms perpetrated not only during the slavery era but also in the century after that, and would go more in depth in terms of how such harms might have been perpetrated (or at least aided and abetted) by government action, and who exactly they might have affected. Having better determined what were the harms and who were their victims, it would then go on to explore what adequate compensation might be, what forms that compensation might take, and how best to determine who might be compensated and how much.

            The problem I have with a lot of the points made around reparations is that (whether intended so or not) their actual function is primarily as debate-stoppers: “No one alive today bears responsibility”, “We can’t commit coercion today [e.g., through government taxes to pay reparations] to correct past coercion”, “It would be too divisive”, “It would be too expensive”, “The recipients would waste the money”, and so on.

            I’d compare this to a civil case, especially one where the class of possible victims is large and the harms extended over time. Maybe the court will find for the plaintiffs, maybe not; maybe the judge and jury will impose what the plaintiffs see as adequate damages, maybe not; maybe the defendants will end up paying the full amount of damages awarded, maybe not. But at least the case will be heard, all the testimony will go into the public record, and some sort of resolution sought. In contrast a lot of the rhetoric I see arguing against reparations seems more designed to persuade us that the case should never see the inside of a courtroom.

          • Linear

            But don’t many “debate-stoppers” need to be resolved prior to filing such a class action lawsuit?

            For example:

            – Who has standing and to what degree?

            – Who would the class action suit be against?

            – Would it be federal or state courts?

            – Why not pursue the harms individually?

            – How far back should the calculations begin?

            – Does this entail retroactively applying law or other unusual principles?

            If the answers to these questions do not meet judicial standards, what do you propose? Forge ahead with some sort of one-off suit using custom standards?

            And if a judge dismisses such a case, would that really conclude the matter? Or is the actual point of persisting in asking for serious consideration because you don’t like the answer so far?

          • To be clear, I wasn’t suggesting an actual class-action lawsuit, I was just using that as an analogy. In practice I was thinking of something like a government commission empowered to do the sort of discovery that you might find in a civil trial, including hearing from witnesses, searching government archives, and the like, with a subsequent report on harms suffered and a recommendation for how to handle reparations (if any). See for example Rep. John Conyer’s proposed Commission to Study Reparation Proposals for African Americans Act.

            “Or is the actual point of persisting in asking for serious consideration because you don’t like the answer so far?” I would flip the question around: Is the actual point of bringing up the “debate-stopper” issues because people are afraid of what such a commission would report and recommend? If that’s the case, nothing would prevent Congress from creating something like Conyers’s proposed commission while at the same time foreclosing the possibility of any taxpayer funds ever being spent on actual reparations.

            The commission in question would then function analogously to a “truth commission” that provides “immunity from prosecution” in exchange for putting all this on the official public record. To address the obvious question, I suspect putting it on the public record would in fact be welcomed by many whose ancestors suffered harms and who want the full extent of those harms to be officially noted, even if monetary compensation is not forthcoming. So I don’t think this would be a futile exercise as far as they were concerned (or, for that matter, as far as many of the rest of us are concerned either).

          • Linear

            But the class-action lawsuit is an important analogy because it has judicial standards. What Conyers is proposing is a politically motivated commission to come to partial, subjective, judicial-seeming conclusions.

            You, on the other hand, are just proposing an investigation, as if the topic of the effects of slavery has never been studied.

            Or do you think that the federal “truth commission” would simply be the most impartial, including not just slavery but reasonably reflecting anti-slavery, compensatory, and charitable acts?

            You also seem to think that there is a wealth of information out there but that people are unwilling to share it because they may be held liable, is that right?

            In any case, I am tempted to agree with you just so I can see you try to convince Conyers to permanently abandon reparations in exchange for his commission. 🙂

          • I think there is a difference between a historian publishing a book (or, for that matter, Ta-Nehisi Coates publishing a magazine article) and an official commission. To the extent that past US and state governments were responsible for or complicit in harms suffered, I think present-day governments should own up to those harms and take action to try to rectify them in so far as that’s possible. (I’m not a libertarian, incidentally, so I have no problem with government action in principle.)

            I think there’s a space of reasonable positions in between seeing white racism as responsible for all present-day ills of African-Americans and wanting to shove the whole mess under the rug (like some Tea Party publications I’ve seen that jump straight from the virtues of the Founding Fathers to the evils of the Progressive movement and Woodrow Wilson). Beyond its impact on the slaves themselves and their descendants, slavery, segregation, etc., warped American politics and society in some very unhealthy ways, and I for one would like to see an good-faith effort at an official accounting and (where government is complicit) redress of associated harms.

          • Linear

            Ok, so you are abandoning indemnification from reparations and basically returning to Conyer’s bill.

            If you think that absent a federal commission we are left with some history books and magazine articles, then you vastly underestimate the attention and consideration that slavery is and has been given. Even aside from private organizations, debates, policies, war, etc., universities have entire centers dedicated to African American studies and slavery in particular.

            A “truth commission” would just put a federal stamp of approval on some research and perspectives rather than others. I certainly want to see redress of harms done, but that cannot be achieved by abandoning the principles of justice in favor of a politically motivated commission. What magic is it that government possesses to make you think it is less biased than the rest of us?

            Also consider that the US government is complicit in presently harming blacks, even while ostensibly trying to help them. Do you think Conyer’s commission will pursue those causes, or is it predisposed to lay blame for negative black statistics at the feet of generic racism and slavery?

          • Two quick points: 1) I am not recommending indemnification, I am simply pointing out that those who object to paying actual reparations (because it would be too expensive, would involve coercive taxation, whatever) would always have the option of limiting the possible amount and type of reparations in advance of any commission report/recommendations.

            2) There is nothing about a congressionally-mandated commission that makes it magically immune to political pressures. (For that matter, the judicial system is not immune to political pressures and bias either.) However if government causes harms then acknowledging and redressing such harms is (at least from a non-libetarian perspective) something that needs to be pursued through the standard political process. Given sovereign immunity for the Federal and state governments, even pursuing a court case would require persuading legislatures to allow such suits to be filed (no doubt with some conditions attached to circumscribe the scope of legal action).

            But in any case a Federal commission would not be “Conyers’s commission”, it would be “Congress’s commission”. And if Congress is concerned about such a commission having political bias one way or another, or arriving at a pre-determined result, or ignoring certain topics, or whatever, then it has the power to ensure that people are appointed to the commission who will be reasonably independent and objective.

          • Linear

            (1) And I was simply pointing out that politically motivated reparations is the whole reason for Conyer’s bill. Take that off the table and there’s no point in having a government-stamped commission — it could be done privately, or by universities, etc., and probably has been.

            (2) Yes, political pressures abound, but the separation of powers creates an important differential. You and Conyer’s want politicians to create a one-off judiciary with its own principles for this case.

            You suggest that Congress as a whole would pick an independent commission, but those congressmen who disagree with the premises of the commission are charged with stopping the debate. Do you think the commission is going to be filled with people who do not think it is justifiable?

            The reasonable condition for revoking sovereign immunity is that the victims are not alive, that the evidence must be causal and not merely correlative, etc. Modern suits against corporations have likewise failed for these reasons. These are “debate-stoppers” only in the sense that the standards of justice are not met by this case. As such, its continued pursuit reinforces an unhealthy and misdirected sense of victimization.

          • I’m going to be busy with other things this week, so this will be my last comment on this; I’ll apologize in advance for the length.

            I think the issue here is that we’re starting from different perspectives, and hence will inevitably disagree. I think there are at least three key areas of disagreement. First, the issue of “official” vs. “non-official” action (i.e., by private actors). I see official action as qualitatively different from private action, with the latter not always an appropriate substitute for the former. Consider for example the related issue of governments issuing official apologies for past government action. Most people view this (I think rightly) as different from an apology by private individuals, even those who were directly involved in the actions in question.

            Second, the issue of redress for harms to victims long dead. This I think is a reasonable objection (although I think it is weakened in this case if you consider not just slavery but also more recent alleged harms extending through the first half or more of the 20th century). I think though to a large degree the reasonableness of this objection depends on the particular family structures characteristic of the US, and in particular the presumption that the parents’ actions do not and cannot redound upon the children–even in cases where descendants might benefit from gross injustices committed by their ancestors.

            The final key issue I think is whether the issue of slavery, segregation, etc., warrants special treatment not accorded other grievances. I happen to think it does, given the particular history of the United States. What happened with slavery in other countries is IMO irrelevant, since they’re not us. And what happened with other minorities in the US is also to a large degree irrelevant I think, since the results of injustices committed upon them did not have the same singular place in or effect on US history and society. (For example, it may be that the Irish suffered injustices in the US, but our political parties are not organized around issues related to Irish ethnicity. Instead they are to a large extent organized around historical divisions dating back to the Confederacy and before, divisions ultimately rooted in the question of slavery.)

            There are other potential objections that I don’t see as potent from my particular perspective. To take but one example, I don’t see the purpose of reparations as “closing the gap” between black and white Americans, so I personally discount any objections to the effect that “closing the gap” would be too costly, not possible, or whatever, because that’s not what I’m arguing.

            That’s it for me. Thank you for your comments (no, really–if I was looking for total agreement with my own views I wouldn’t be commenting as a non-libertarian on a libertarian site.) Please feel free to have the last word if you’d like.

          • Linear

            I appreciated our discussion as well. You’ve been very cordial and coherent. I’ll add a few comments, but there’s no need to respond.

            If the government wants to apologize for slavery, that’s fine with me, but I think it means about as much as someone who is not responsible apologizing. Maybe that would make someone feel better, though.

            More generally, I find it problematic to hold the government to different moral standards than individuals, with analogs to the bystander effect — i.e. when everyone is responsible, no one is. This applies to taxes and just about everything the government does.

            Your goal may not be to “close the gap”, but that gap does seem to be a significant motivation for reparations. So, I think it is valid to ask how much the gap was caused by slavery, as well as to otherwise compare the net effects of slavery, including by comparison to Africans and others.

            The Case Against Slave Reparations pdf that I linked previously has a lot of interesting historical facts, if you ever choose to revisit this topic in greater detail.


  • JW Ogden

    I think that forcing non-government organizations to do AA is not necessary and morally wrong but, that it is necessary and beneficial for government organizations like Government schools and especially police, courts and fire departments to use AA.

    On another philosophy issue: Suppose that African-Americans or any other recognizable group for historical reasons decides their children should enjoy their childhood years more and so allow them to study and do school work less the average in the country. Is it then permissible morally for the rest of people in the country to continually push them to make their children study more and work harder in school?

    • Les Kyle Nearhood

      The answer to your question is obviously no. But it raises another question. if this is a choice, then in what way are we obligated as a society to reward such a decision with affirmative action?

  • Linear

    While intent is a long established factor of moral culpability, hate is not. So, I don’t think it is justified to generalize that since some aspects of the state of mind are relevant, therefore all aspects of the state of mind are relevant.

    The underlying problem with hate crime laws is that they discriminate which hates are socially acceptable and which are not. It is no coincidence that hate crimes parallel hate speech.

  • Gould’s Assistant

    David Boonin, are you a race realist? Or, say, in Richard Lewontin’s camp? Isn’t the establishment of the ‘is’ indispensable to understanding the ‘ought’ concerning race?

  • Libertymike

    A libertarian, bleeding heart or otherwise, does not accept the proposition that the state has a “right” to inspect every person’s bag at the airport or to grab and grope and prod and poke and x-ray every person who seeks to travel – even if they are Muslim or dark or both. A’s right to travel is not subject to B feeling safe.

  • Very nice post!

  • DJ

    Regarding the slavery reparations–does this obligation to pay apply to people of non-white ancestry who currently live in this country? Or what about white people who immigrated here after slavery had been abolished? If no, then your argument has problems that are more practical than philosophical (i.e. tracking down the families of former plantation owners and former slaves). But if all the non-black people have to pay reparations to all the black people, then it seems like you have a much tougher case to make.

    The above question notwithstanding, it still seems like it’s difficult to justify an obligation to compensate someone who (probably) suffered from the wrongdoing of people who were the same race as the person upon whom this obligation has been imposed.

  • Jason Lee Byas


    I’m currently reading your “The Problem of Punishment,” and was therfore pretty surprised by your thoughts on hate crime laws. Your view there (opposing punishment altogether) and your view here (supporting additional punishment on the basis of someone’s mental state) seem to be in flat contradiction. How do you square the two?

  • Michael Byrnes

    For those interested in the reparations issue, I highly recommend Ta-Nehisi Coates’ Atlantic article “The Case For Reparations” ( For much of the article, Coates focuses not on slavery but rather on more recent events – theft under Jim Crow, various discriminatory housing policies, etc. – in some cases involving victims that are still living.

    • Les Kyle Nearhood

      which weakens the argument. If there are cases which are much more recent then they should be pursued unto themselves.

      • Michael Byrnes

        And the fact that they are not pursued strengthens the case.

        • Les Kyle Nearhood

          I don’t see that at all. What is stopping them from being pursued? Why would we want to default to some hideous scheme in which ages old scores are settled.?

          • Michael Byrnes

            That’s the challenge of reparations – finding a way to do it that is not “some hideous scheme”. I don’t think anyone really has the right answer. But I also think that… after literally hundreds of failure to respect the most basic and fundamental of property rights, “let’s just let bygones be bygones” is definately the wrong answer.

  • ThaomasH

    Good list:

    slave reparations – Not feasible to do justly

    affirmative action – Justifiable in principle, empirically suspect in many cases. Same goes for the argument when the discrimination is for the supposed benefit of the non favored group, i,e. that they benefit from “diversity” where one has to weigh the possible good to the majority groups against the possible harm to the minority group.

    hate speech restrictions – No way

    hate crime laws – agree if it means additional punishment for something already agreed as punishable

    racial profiling – .Justifiable in principle, empirically suspect in many cases.

    • Les Kyle Nearhood

      Agreed on 3 of the 4, As for hate crimes, I would also put that as empirically problematic. In some jurisdictions it can amount to no more than punishing one race more than another when a fight breaks out. It is fraught with potential for abuse.

      • ThaomasH

        Good Point

  • TracyW

    Suppose, for example, that fifty years ago, the government wrongfully buried toxic waste in a residential neighborhood and that doing not only harmed the people who lived there at the time but also caused lingering effects that continue to harm the people who live there today.

    Wouldn’t this case lose under a statute of limitations?

    And, as a general principle, this seems highly problematic. Who doesn’t have a family member at some point in the past who wasn’t harmed by a government action? For example there’s been a long history of military conscription.

  • TracyW

    Suppose, for example, that fifty years ago, the government wrongfully buried toxic waste in a residential neighborhood and that doing not only harmed the people who lived there at the time but also caused lingering effects that continue to harm the people who live there today.

    Wouldn’t this case lose under a statute of limitations?

    And, as a general principle, this seems highly problematic. Who doesn’t have a family member at some point in the past who wasn’t harmed by a government action? For example there’s been a long history of military conscription.

  • As I have said before about reparations:

    Since a happy life is a journey not a destination, reparations for past injustices should be ignored. The initial condition for each person should be considered when that person declares emancipation from his parents. Any injustice that is present at that point is due to the parents conceiving and raising the person in an unjust world. Each of us should just consider the world at the transition from dependence on our parents as our initial condition, and enjoy developing the best path to seek happiness from there. Otherwise we are filled with envy, and in constant turmoil trying to seek retribution for past injustices.

  • I am responding to David Boonin’s arguments on reparations for slavery, arguments I find very weak, in a three part blog instalment. The first part is here. The follow ups will be in the next two days on the same blog. Despite David Boonin’s declaration in his post above that he does not appeal to racial collectivism, he does. Repeatedly he mentions in his two chapters on slave reparations that he considers black people “as a whole.”

    • I have just published my second blog post responding to Boonin’s arguments on slave reparations. It can be seen here.

      • And, for completeness, the final blog post on the matter can be seen here.

  • TracyW

    And suppose that a treaty that the United States government ratified fifty years ago commits it to defending a particular ally who is currently under attack. I see no reason for a libertarian to believe that the country’s obligation to defend this ally expired when the particular individuals whose signing of the treaty generated that obligation died.

    Did this obligation ever really exist? What is the moral basis for a legislative body committing not merely itself and the current people who voted for it, but future successors, based on merely a 50%+1 vote? A bunch of people who may have been elected by only a minority of eligible voters, but take it upon themselves to bind even people who could not have consented (what with being below voting age and in many cases not even born) to their decision?

    After all, it’s generally agreed that parents cannot chose to pass on their obligations and debts to their minor children, nor can private citizens generally impose costs and commitments on others without their consent

    I’ve asked similar questions about government’s obligations to pay government debt accumulated by past governments, and never gotten an answer that was not purely practical.

    This makes me think that whatever the proper moral status of government treaty commitments to allies, it’s unrelated to the moral obligations of individuals. So analogies between the two are not informative.

    • Les Kyle Nearhood

      good point

    • “What is the moral basis for a legislative body committing not merely itself and the current people who voted for it, but future successors, based on merely a 50%+1 vote?” I think there’s a moral basis only insofar as people believe themselves part of a collective body that can make such binding decisions. Obviously for most (all?) libertarians this is not the case.

      I’d compare this to societies where family obligations are much more important, where “upholding the family’s honor” means that actions of one family member have moral implications on other family members, and commitments made by the parents are binding on the children. In the U.S. (and in the “Anglosphere” in general) people are much more individualistic, so that the moral basis for such commitments is much weaker (as you note), and whether children fulfill obligations made by their parents is based on more on practicality and self-interest (as you also note for the case of government debt).

  • Sam Barnes

    Your argument on reparations and affirmative action seems logically sound, but I think it starts from flawed premises. You seem to accept that the current inequality between whites and blacks in the US is due, if not exclusively then at least largely, to “the unjust harms that were inflicted by slavery and Jim Crow laws” Another hypothesis is that the gap we observe in education, wealth, income, incarceration, and many other metrics is reflective of deeper underlying realities, namely that the races do not have the same mean IQ, future-time orientation, impulse control, organizing ability, and so on. If this latter hypothesis is true, then all the reparations and affirmative action in the world won’t do anything to erase that gap.

    • Craig J. Bolton

      So, Sam, I guess your notion would be that if I ran over you with my car we would have to determine what you would do with the damage payment that might be assessed against me and what I would do with it in order to determine whether it should be paid. After all, if I am intrinsicaly more able to enjoy the money or might do more good with it, why should you have it just because of your broken body. Interesting approach.

  • Craig J. Bolton

    If you are using “libertarians” as a descriptive term, rather than an aspirational term, it seems to me that you started at much too stringent of a level. With the exception of a handful of fairly sophisticated academic or foundation libertarians, my informal survey indicates that virtually all libertarians believe that the notion of “public accomodations” is a core violation of “property rights.” Questioned about “property rights” they will start murmering something about Locke and Rothbard. Matters like reparations and affirmative action are just simply “socialism” in their world, and not even worth a discussion,

  • How odd that this makes no mention of the biggest driver of racism in the US today: the #DrugWar.

  • simplethinking

    What about the white slave trade? How does that fit into your position on reparations?