Participants discussed impacts on freedom

Last Friday, the Constitutional Studies program hosted Richard Epstein and Matt Coles for a debate on anti-discrimination laws and their relation to freedom.  

Epstein, Laurence A. Tisch Professor of Law and Director of the NYU Classical Liberal Institute, began the debate by positing that freedom of association must not be neglected. He went on to offer that freedom of association can be legally protected if the handling of discrimination issues is left to market forces. Epstein referred to this process as the “natural lottery” in which “business[es] who are too exclusive will die.”

Epstein suggested that if businesses or institutions discriminate against a certain group, there will be significant resistance to such a decision. Those businesses or institutions will therefore experience economic repercussions, which will ultimately result in the inability to stay in the market. Epstein emphasized that in order for this to be true, the marketplace must be truly competitive. This would require that there be “free entry into the market, but also free exit for those who fail.”

Epstein made sure to emphasize that the notion of allowing market forces naturally to discourage discrimination does not apply to government monopolies, such as public utilities. Since government monopolies are not a part of a competitive market, Epstein noted that they must be held to treat every citizen equally. According to Epstein, the lack of free exit for businesses in addition to government-sponsored segregation led to the horrific continuance of discrimination in the Jim Crow era.

Coles, deputy legal director and director of the Center for Equality for the ACLU, spoke after Epstein. Coles began his monologue by speaking about the cruelty of slavery as the “original sin” of the United States. He noted that despite the abolition of slavery, African-Americans and other groups are still not treated equally. For instance, he mentioned that African-Americans were affected the most by the financial crisis of 2008 due to predatory loan targeting. He also referred to the stop-and-frisk policy carried out by New York police as a discriminatory practice.

Coles said that discrimination is occurring despite there being protection against such practices within the Constitution. Coles noted that the Fourteenth Amendment, and more specifically the equal protection clause within the Fourteenth Amendment, should protect all citizens. Cole said that “the great promise of the equal protection clause is the states have an obligation to enable everyone to participate equally within the system.” Coles argued that “no personal freedom can be offered if laws we set up to organize day-to-day life do not protect people equally.” This, Cole posited, is the lynchpin of his argument. Coles reiterated his point later, saying he “does not think personal freedom of choice means very much until we have kept equal protection for all.”

After the debate, there was a question-and-answer segment during which points of agreement were found between Epstein and Coles. The most prominent example of this was when Epstein and Coles agreed that intellectual diversity should be encouraged more, and that political preferences should not overpower constitutionally protected freedom of speech.

When asked his thoughts about the debate, Matthew Bartilotti, a sophomore living in Alumni Hall, shared with the Rover, “I remember seeing comments on Facebook about people being upset about it, and I was glad that such an emotionally charged subject was able to be debated so clearly and cogently with a respective audience.”

Eddie Damstra is a sophomore political science and economics double major living in Alumni Hall. The only thing he enjoys more than watching the White Sox win is watching the Cubs lose. (It’s been a rough past year in that department.) You can contact him at edward.j.damstra.1@nd.edu.