In Freedom and the Law, Bruno Leoni argues that the main threat to liberty comes not from overweening officials but from the law that empowers them. As Murray Rothbard puts it, “The real and underlying menace to individual freedom is not the administrator but the legislative statute that makes the administrative ruling possible.” In that light, we can see that woke tyranny does not come from the self-important diversity, equity, and inclusion (DEI) officers who claim to enforce “our shared values” but from the legislation that vests power in them. The real threat comes from the Civil Rights Act of 1964.
Without the Civil Rights Act, DEI officers would have no cover for their preposterous schemes and polices. What right would they have to command people to kneel to showcase concern for racial equality? The cloak of legality provided by the “shared values” of civil rights serves the important role of lending petty tyrants legitimacy in the public eye. These officers are said to be well-intentioned and given the benefit of the doubt. It is said that they may have gotten a few things wrong and taken things too far in some cases, but “DEI will work very well if it’s done properly.” Thus, the enforcers of wokery carry on doing as they please, and the West continues its decline. As Leoni explains:
Individual freedom in all countries of the West has been gradually reduced in the last hundred years not only, or not chiefly, because of encroachments and usurpations on the part of officials acting against the law, but also because of the fact that the law, namely, the statutory law, entitled officials to behave in ways that, according to the previous law, would have been judged as usurpations of power and encroachments upon the individual freedom of the citizens.
Leoni gives examples of officials using their statutory discretion to tackle what they consider to be the “mischief,” as it is often called in statutory interpretation, targeted by that law. In doing so, officials exercise their statutory powers in whatever way they think will best advance what they consider to be the goals of the legislation.
As described by Leoni, once given power to achieve statutory goals, officials “substitute themselves for the law by so stretching the letter of the statute as to apply rules of their own under the pretext that the law would be insufficient if more scrupulously interpreted and applied to achieve its ends in a given circumstance.” This attitude is often endorsed by courts, who view it as “purposive” statutory interpretation—statutes are to be interpreted in a manner that advances their purpose.
The Civil Rights Act of 1964
Civil rights legislation provides a contemporary example of the problem Leoni warns about. The stated purpose of the Civil Rights Act is to eliminate discrimination. “Title VII of the Civil Rights Act of 1964 also creates the U.S. Equal Employment Opportunity Commission (EEOC), a five-member, bipartisan commission whose mission is to eliminate unlawful employment discrimination.”
On that basis, the EEOC enforces whatever policies it thinks will eliminate discrimination, with the endorsement and encouragement of academics, lawyers, civil rights groups, and even the Supreme Court, which has long endorsed the EEOC’s interpretation of the Civil Rights Act. For example, the EEOC enforces prohibitions on discriminating against LGBT individuals, and in answer to those who point out that Title VII does not mention LGBT rights, the EEOC lists on their website: “Examples of Court Decisions Supporting Coverage of LGBT-Related Discrimination Under Title VII.” The Civil Rights Act does mention “sex,” and the EEOC interpretation of the word “sex” covers LGBT rights, an interpretation with which the Supreme Court has agreed:
The employers do not dispute that they fired their employees for being homosexual or transgender. Rather, they contend that even intentional discrimination against employees based on their homosexual or transgender status is not a basis for Title VII liability. But their statutory text arguments have already been rejected by this Court’s precedents. And none of their other contentions about what they think the law was meant to do, or should do, allow for ignoring the law as it is.
The “law as it is” is what the Supreme Court says it is, not what the complainants may think it is based on their reading of the Civil Rights Act. This is why Rothbard cautions that Leoni’s preference for judicial decision-making over legislation does not go far enough in resolving the problem:
A great defect in Leoni’s thesis is the absence of any criterion for the content of the judge-made law. It is a happy accident of history that a great deal of private law and common law is libertarian—that they elaborate the means of preserving one’s person and property against “invasion”—but a good deal of the old law was antilibertarian, and certainly custom cannot always be relied on to be consistent with liberty.
The courts can no longer be relied on to be consistent with liberty in an age where woke values and critical race theories are deeply entrenched in law schools.
EEOC Enforcement
The Civil Rights Act does not explicitly state that employers must implement DEI policies, which leads the naïve to imagine that they can simply abolish DEI offices and thereby extinguish woke tyranny. These same people fail to appreciate that the Civil Rights Act provides the legislative foundation for coercive DEI schemes, and the reality is that these schemes—regardless of the label affixed to them—are not optional.
In pursuance of their statutory duty to eliminate discrimination, the EEOC enforces executive orders that require the implementation of DEI policies: “The [EEOC] worked with interagency partners to implement Executive Order 14035 (Diversity, Equity, Inclusion, and Accessibility in the Federal Workforce); promoted diversity, equity, inclusion, and accessibility in the federal workforce through the Chief Executive Officer Executive Council.”
The EEOC oversight of DEI covers most private business with fifteen employees or more. It also covers all federal agencies—including for example the Federal Reserve, which has set up offices to implement DEI and collate the annual diversity statistics required by the EEOC. “In January 2011, the Federal Reserve System established offices to promote diversity and inclusion at the Board and at the 12 Federal Reserve Banks.”
The Federal Reserve Board’s DEI strategic plan defines diversity as “the collective mixture of differences around race, color, ethnicity, religion, sex, gender identity, national origin, age, disability, sexual orientation, values, beliefs, experiences, backgrounds, preferences, and behaviors.” It defines equity as “how an organization leverages diversity” and inclusion as “when diversity is leveraged and valued.”
Many who are critical of these policies fail to acknowledge that such policies are required and enforced by the EEOC. Such critics attempt to combat wokery by getting this or that official fired from office or renaming DEI offices as “colorblind equality” offices under the delusion that this will fix the problem. These critics fail to see that the real menace is the Civil Rights Act, not DEI officers, woke-captured academics, or even the EEOC. The Civil Rights Act gives power and ammunition to the woke tyrants who destroy liberty.
The Law Is Not Innocent
Some critics of DEI argue that woke tyrants do whatever they want anyway and would do the same even without the backing of civil rights law, so these critics believe that the law is innocent. As they see it, the problem has nothing to do with the law but simply overweening officials who need to be replaced with better officials who will enforce equality better.
This is not correct. As Leoni points out, mere administrative encroachment with no legal basis whatsoever would not be tolerated in the same way. People generally tolerate cases of statutory “misinterpretation” where it is said that well-intentioned officials have simply “misinterpreted” the scope of their legal powers so that all that is required is for them to be issued with correct guidelines. Thus, the problem continues to grow.
If DEI officials purported to act without any legislative or legal power, they would and could easily be stopped. However, in the West, it is still comparatively rare for officials to act without any ostensible legal authority. For example, when people are arrested for causing offense by reading the Bible, the police do not claim that there is a law prohibiting the reading of Bibles nor do they assert that they have a right to arrest whomever they want for no reason. Rather, police purport to be enforcing various public order regulations in the exercise of their power to prevent crimes and breaches of the peace. For example, when Damon Atkins was arrested for quoting a verse from the Bible at a Pride march, the police claimed to have probable cause for his arrest:
A criminal complaint from the Reading Police Department provided to The Lancaster Patriot explains that a violation of the Disorderly Conduct statute entails “the intent to cause substantial public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he engages in fighting or threatening, or in violent or tumultuous behavior” and that Atkins “despite being warned by police just moments prior, yelled derogatory comments at an organization that was holding a permitted event.”
Is Lawfare the Solution?
As Leoni points out, though officials always claim to be acting under the law, at least as they conceive the purpose of that law, in such cases they happen to be acting illegally (“Incidentally, this is also a case of illegal behavior, that is, of behavior on the part of public officials in contravention of the law”). A strategy of challenging the legality of officials’ actions has therefore met with some success, and many favor this approach. This gives some hope of defending liberty by fighting through the courts, and those who use this method believe that fighting lawfare against the forces of evil will allow the “true” purpose of the “innocent” civil rights law to emerge.
For example, unlawful arrests are often struck down with compensation paid to the victim. People wrongfully discriminated against by DEI officials have also had legal complaints upheld. Cases brought by white farmers locked out of financial assistance have been effective in thwarting racial preferences:
The US Department of Agriculture was scheduled to begin sending out payments to Black and minority farmers this month, as part of a $4bn loan forgiveness program included in the $1.9tn coronavirus relief bill that passed Congress in March.
But a lawsuit on behalf of white farmers accusing the Biden administration of discrimination has, at least temporarily, stopped the checks, prompting dismay among Black farmers and campaigners.
The cases that ruled affirmative action in university admissions to be unlawful are also hailed as a great victory for the lawfare approach.
However, there are limits to how much can be achieved through the ad hoc approach of lawsuits. Many people cannot afford to sue, and many choose not to fight but concede the case so they can put the matter behind them and move on with their lives. The Colorado baker who chose to fight back through the courts has thus far devoted ten years of his life to defending his liberty, and many in his situation might have baked the gay cake or the transgender cake just to put the matter to rest—which is precisely what the activists who persecute him intend to happen. This costly legal saga sends a message to other bakers that they might be better off just baking any cake as commanded.
It must also be observed that the reason racial policies favoring “socially disadvantaged” races are formulated in the first place is to avoid lawsuits from civil rights groups who complain to the EEOC that socially disadvantaged races are suffering discrimination and legacies of injustice. The EEOC is under more political pressure from civil rights activists than it is from those who defend liberty, as seen in the case of the black farmers who complained when the government’s attempt to lock white farmers out of financial assistance was thwarted.
Repeal ’64
Many look to the Constitution for hope in dark times, hoping the Constitution will come to the rescue when officials wield the Civil Rights Act as a weapon to destroy liberty. They wait in vain. As Christopher Caldwell has shown, the Civil Rights Act has long constituted a rival to the Constitution. The only solution is to repeal the Civil Rights Act. As Lew Rockwell argues in “Repeal ’64”:
The Constitution has never stood in the way of civil rights enforcement. In the name of stamping out illegal discrimination, fundamental rights like freedom of association are denied daily.
The ethical gloss of civil rights has long since vanished, leaving only the brute power of statism to enforce an egalitarian agenda.
. . . Our troubles don’t stem from “quotas,” “set asides,” and the like; they stem from the presumption that government should be monitoring “discrimination” in the first place. Pass all the anti-quota laws you want. Until anti-discrimination law is repealed, nothing can block the march of big government.
