Like Richard A. Epstein’s earlier book Takings, dealing with the defense of property in the Fifth Amendment, his latest one combines legal study and economic analysis with megadoses of political and social theory. Though Epstein explores, for the most part, civil rights legislation aimed at the removal of job discrimination, he devotes the opening section of his new study to refining Thomas Hobbes’ arguments on the need for civil society. He cites Hobbes (albeit selectively) to demonstrate that government exists to protect life and property against those most prone to violence. He thereby reveals his lack of affinity for any view of the state as an instrument of social leveling or as a purveyor of “sensitivity.”

Epstein offers especially withering criticism of Title VII of the 1964 Civil Rights Act, which makes it unlawful to discriminate in employment on the basis of race, religion, sex, or national origin. He also looks in depth at Supreme Court cases flowing out of the 1964 legislation, particularly Greggs v. Duke Power Company (1971) and Wards Cove v. Antonio (1989). While in the first case statistical evidence of a relatively low rate of promotion among black workers was used to infer objective discrimination, in the second the burden of proof was transferred to the collective plaintiff—the employees. Epstein contends that the Civil Rights Act itself is to blame for these shifting interpretations. Being unable to fathom fully the intentions or ratiocination of employers, judges have insisted on numerical results in dealing with charges of discrimination against officially designated victims of prejudice. Whereupon courts, facing countersuits (also under Title VII) from white males deprived of their just deserts, have reversed decisions mandating minority preference.

For Epstein, the Civil Rights Act and its sequelae are the inescapable outcome of judicial assaults on property rights beginning in the last century. The upholding of Jim Crow ordinances, as in the Supreme Court’s separate-but-equal judgment in Plessy v. Ferguson (1896), infringed on the property rights of streetcar owners in Southern cities. Segregation laws and the failure of judges to protect Negro property rights in the post-Reconstruction South began a dramatic retreat from judicial defenses of private property anchored in both the Constitution and English Common Law. This change in judicial attitude became particularly pronounced after the arrival of a New Deal Supreme Court. Thereafter, courts made less and less effort to keep labor unions from controlling conditions of job entry, or legislatures from fixing wages and other work-place arrangements. Epstein sees these judicial failures to uphold the right of free contract between employers and employees as a movement away from an earlier Supreme Court stand, taken in Lochner v. New York in 1905. In Lochner, the Supreme Court had struck down a New York Stat ordinance limiting to 40 hours the permissible work week of bakers. Most of the justices in Lochner considered the offending ordinance as incompatible with the civil rights of those bakers who elected to work more than 40 hours per week, and of those employers who wished to retain them.

However laudable and ably argued is Epstein’s case for property and contract rights, one can raise here a constitutional objection. Epstein’s own appeal to judicial activism takes no account of the dual federalism upon which the American Republic was established. Indeed, Epstein sets out to make the liberal’s favorite judicial device—incorporating selectively the Bill of Rights into the equal protection clause of the Fourteenth Amendment—a double-edged sword. If the Bill of Rights is no longer to be understood, as it was by John Marshall in Barron v. Baltimore (1833), as protecting the states and their citizens against federal (and particularly congressional) power, henceforth it should be made to justify new judicial incursions, carried out on behalf of property rights. This argument is already present and well-developed in Epstein’s Takings, and it should be no source of comfort to defenders of states’ rights. The Lochner decision, it can be argued, unjustifiably restricted the legislative power of states, even though conservatives and libertarians might both sympathize with Epstein’s moral position that workers and employers should be allowed to determine their own economic relationships. Finally, what chance is there, pragmatically speaking, that the Incorporation Doctrine will be turned into a counterrevolutionary instrument? And even if Epstein does get his way (which is improbable) in overturning judicially all legislation directed against property rights, will this stop other judicial social engineering from going forward under still more radical interpretations of the Bill of Rights? Note that Epstein persists in making a case for activist judges at all levels, even while deploring the Civil Rights Act.

Epstein considers the Civil Rights Act of 1866 and the Thirteenth, Fourteenth, and Fifteenth Amendments as moves taken in a classical liberal direction. The 1866 act and the Reconstruction Amendments, he insists, addressed the questions of legal equality, Negro property rights, and equal access to public facilities. But surely this was not the only thrust of the post-Civil War racial legislation! The Fourteenth Amendment stripped millions of white Americans (and not only Southerners) of citizenship, if they could be shown to have aided the rebellion against the Union; the Fifteenth Amendment enfranchised a former slave population whose former owners had in many cases been reduced to outlaw status. Such legal developments seem far more relevant for understanding the true scope of Reconstruction than whether blacks were to have access to private as well as public facilities. Epstein is right to stress the essentially conservative nature of the predominantly Republican Supreme Court, which put a brake on Radical Republican legislation in 1874 and upheld states’ rights positions in several key decisions. But then the Court was precisely that—a brake on a social and political revolution that many feared could not be confined to a militarily occupied South.

Despite these further reservations, let it be said that Forbidden Ground is a gold mine of arguments directed against the would-be eliminators of job discrimination. Epstein provides many reasons why discrimination in hiring is not the equivalent of racial slavery, or even of segregation. He correctly observes that an employer’s preference for one labor pool over another does not leave the less favored applicants without other job options. The same employers might likely take their second-best choice as marginal workers. Applicants who have been rejected might also find employment with others who favor their distinguishing characteristics, a point that Thomas Sowell demonstrates in several studies on black and female academics. Sowell has proved statistically that both black and female teachers and professors were as much represented in the work force in the early 20th century as in that of the 1970’s. The major difference concerned the institutions that were likely to employ them. Blacks and females had been predominantly associated with black and female institutions of learning in the past, but were less likely to be so in the present. What that indicates, however, was not the absence of economic opportunity or professional posts in the early 1900’s, but the lack for many of what today would seem to be the most desirable prospects. Epstein does not believe that our already diminished property rights need to be further compromised for the sake of guaranteeing everyone a dream job. Needless to say, this guarantee is not now being made available to quite everyone; at least in the short run, only bureaucratically designated victims will be encouraged to pursue it.

I should finally compliment Professor Epstein for his willingness to consider the employer’s right to discriminate in favor of compatible job applicants. There are certainly compelling economic and social reasons for hiring workers who are likely to get along with others in the same work force. Moreover, the imposition of minority quotas on employers creates an aura of suspicion about the politically preferred job recipient that must adversely affect his relationship with both employers and co-workers. Epstein is willing to defend a position that only the truly courageous will take these days: namely, that employers should be free to hire anyone they get along with. In a political world of social democrats separated only by different labels, he is a welcome anachronism, not exactly an old-fashioned conservative but at the very least a feisty classical liberal.


[Forbidden Ground: The Case Against Employment Discrimination Laws, by Richard A. Epstein (Cambridge: Harvard University Press) 544 pp., $39.95]