Historically, many of the leading advocates of civil rights for African Americans in the late 19th and early 20th century—for example, Moorfield Storey, the first president of the NAACP—were, if not hardcore libertarians, at least classical liberal fellow travelers. In more modern times, the few prominent libertarian commentators of the early 1960s, such as Ayn Rand and Milton Friedman, supported the provisions of the 1964 Civil Rights Act that banned discrimination by state and local government officials. Conservatives, by contrast, typically bought into the notion of “States’ Rights.”

Rand, Friedman, and other libertarians, however, opposed on principle the application of antidiscrimination laws to private parties. Many libertarians today, including me, think our predecessors were wrong in their blanket opposition to such laws, in part because they neglected some of the legal and historical context.

First, the absence of formal discriminatory legislation did not mean that libertarian principle was being respected. I’ve already noted that the common law rule barred discrimination in places of public accommodation. After the Civil War, courts, both north and south, manipulated, changed, or ignored their preexisting common law to deprive African Americans the benefit of that rule. Similarly, courts that consistently invalidated minor contractual restraints on the alienation of private property nevertheless upheld ethnically restrictive covenants that at times barred most of the residents of a given city from purchasing encumbered properties. The refusal to apply a general legal rule because the beneficiaries would be African Americans was a violation of their right to equal protection of the law.

Because I’m commenting on the panel, I don’t want to say too much. So I’ll just reiterate that anyone advocating “states’ rights” is presumptively no friend of liberty. Federalism, perhaps. States, though, do not have rights. They have power, and for that power ever to be just it must be applied impartially.

I’ll have a lot more to say about civil rights, and about Title II in particular, on Monday. And I’ll save my criticisms of Bernstein for later. (I do have a few…)

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National Review’s obnoxious (and predictable) response to the mistaken arrest of a black Harvard professor has been to publish this truly remarkable post from Roger Clegg:

Even if race played some role in how Professor Gates was treated — who knows? — the Left is, predictably, exaggerating the sociopolitical significance of it all. And I’ll go further than that: I suspect that, as soon as the police arrived, Professor Gates realized he had been handed a great opportunity to play the victim and advance his agenda, and he decided to milk the incident for all it’s worth. And he’s still doing it. That’s too bad, since the last thing African Americans need in 2009 is to buy into more victimology.

Clegg’s powers of telepathy notwithstanding, I sincerely doubt that the good professor’s first thought upon encountering a heavily armed police officer was “Lucky me – what a great opportunity for grievance-mongering!” Given his racially-tinged response, I suspect Clegg is guilty of a bit of psychological projection here.

Unlike Clegg, I do not claim to read minds, so I hesitate to pass judgment on the responding officer’s motives. One odd undercurrent to all this, however, is the widely-held assumption that no matter how badly things turn out, the officers on the scene deserve the benefit of the doubt. The logic seems to be that police are both heavily armed and work a difficult job, and are therefore entitled to a lot more deference than other civil servants.

Policing is a trying (and occasionally dangerous) occupation, so I understand why we venerate police officers. But I don’t believe that civic veneration should extend to a special category of deference for law enforcement. Because cops wield a disproportionate amount of power in any confrontation with civilians, I actually tend to think that their actions should be subject to more scrutiny, particularly when it’s not at all clear that the officer(s) in question responded appropriately.

As I said, I don’t mind celebrating cops as civic heroes. I don’t mind funding salaries, equipment, and generous pension plans. But I do find it frightening (and fundamentally at odds with our political traditions) when someone suggests that absolute deference to the police is the only appropriate response to a confrontation with law enforcement. Nodding your head and signing on the dotted line may be the safest and quickest way out, but sometimes the boat is worth rocking.

Update: Having read Obama’s response, I’d like to pose a question to the hordes of bloggers who are outraged by the president’s comments. Is there any real defense of the responding officer’s decision to arrest Gates after he provided identification? I think I’m with Josh Marshall on this one:

Here are some salient facts. The house was Gates’ house. From what I understand, no one disputes that prior to his arrest and while in the house, Gates provided proof that the house was his. When you have those facts and the guy whose house it is ends up getting arrested, I think that’s prima facie evidence of bad police work.

There also seems to be some willful denial at work here – not one of these critics is ready to acknowledge (or even consider) the fact that the interaction of Black Americans with law enforcement is is colored by a very real history of discrimination and abuse. John McWhorter is worth reading on this subject.

Finally, take a moment to re-read the president’s comments. He a) does not accuse the Cambridge police of racism b) acknowledges that their initial response was correct and c) notes that we’ve made incredible progress in dealing with these issues. The only point of contention is whether the responding officer acted foolishly. Is anyone prepared to defend the officer’s actions as an appropriate response to this type of situation? I’m not saying the guy is a racist or deserves to be fired, but I really don’t think this is an example of sterling police work.

Update II: Apparently, there are also reasons to doubt the accuracy of the police report:

For starters, police used an investigatory exemption in the public records law to bar the public’s right to view Gates’ police report. Even after the charges against Gates were dropped, police were unwilling to release the report and, mysteriously, a leaked copy that appeared on Boston.com’s Web site was replaced the next day with a less complete version. Globe editors declined to explain to the Chronicle why the documents were swapped, while the department said it was conducting an internal investigation to find out who leaked the arrest report.

Update III: For those interested, here’s the legal definition of “disorderly conduct” in Massachussetts. I’m not a lawyer (paging esteemed co-blogger Mark Thompson), but I really don’t think that Gates’ actions (however intemperate) qualify as “threatening, violent or tumultuous behavior” that “serve[d] no legitimate purpose.”

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