Courage in Profilenby Paul GottfriednForbidden Ground:nThe Case Against EmploymentnDiscrimination Lawsnby Richard A. EpsteinnCambridge: Harvard University Press;n544 pp., $39.95nLike Richard A. Epstein’s earliernbook Takings, dealing with the defensenof property in the Fifth Amendment,nhis latest one combines legalnstudy and economic analysis with megadosesnof political and social theory.nThough Epstein explores, for the mostnpart, civil rights legislation aimed at thenremoval of job discrimination, he devotesnthe opening section of his newnstudy to refining Thomas Hobbes’ argumentsnon the need for civil society.nHe cites Hobbes (albeit selectively) tondemonstrate that government exists tonprotect life and property against thosenmost prone to violence. He thereby revealsnhis lack of affinity for any view ofnthe state as an instrument of social levelingnor as a purveyor of “sensitivity.”nEpstein offers especially witheringncriticism of Title VII of the 1964 CivilnRights Act, which makes it unlawful tondiscriminate in employment on the basisnof race, religion, sex, or national origin.nHe also looks in depth at SupremenCourt cases flowing out of the 1964 legislation,nparticularly Greggs v. Duke PowernCompany (1971) and Wards Cove v.nAntonio (1989). While in the first casenstatistical evidence of a relatively lownrate of promotion among black workersnwas used to infer objective discrimination,nin the second the burden of proofnwas transferred to the collective plaintiff—thenemployees. Epstein contendsnthat the Civil Rights Act itself is tonblame for these shifting interpretations.nBeing unable to fathom fully the intentionsnor ratiocination of employers,njudges have insisted on numerical resultsnin dealing with charges of discriminationnagainst officially designated victims ofnprejudice. Whereupon courts, facingncountersuits (also under Title VII) fromnwhite males deprived of their justndeserts, have reversed decisions mandatingnminority preference.nFor Epstein, the Civil Rights Act andnREVIEWSnits sequelae are the inescapable outcomenof judicial assaults on property rights beginningnin the last century. The upholdingnof Jim Crow ordinances, as innthe Supreme Court’s separate-but-equalnjudgment in Plessy v. Ferguson (1896),ninfringed on the property rights ofnstreetcar owners in Southern cities. Segregationnlaws and the failure of judges tonprotect Negro property rights in thenpost-Reconstruction South began a dramaticnretreat from judicial defenses ofnprivate property anchored in both thenConstitution and English CommonnLaw. This change in judicial attitudenbecame particularly pronounced afternthe arrival of a New Deal SupremenCourt. Thereafter, courts made less andnless effort to keep labor unions fromncontrolling conditions of job entry, ornlegislatures from fixing wages and othernwork-place arrangements. Epstein seesnthese judicial failures to uphold the rightnof free contract between employers andnemployees as a movement away from annearlier Supreme Court stand, taken innLochner v. New York in 1905. In Lochner,nthe Supreme Court had struckndown a New York Stat ordinance limitingnto 40 hours the permissible worknweek of bakers. Most of the justices innLochner considered the offending ordinancenas incompatible with the civilnrights of those bakers who elected tonwork more than 40 hours per week, andnof those employers who wished to retainnthem.nHowever laudable and ably argued isnEpstein’s case for property and contractnrights, one can raise here a constitutionalnobjection. Epstein’s own appeal to judicialnactivism takes no account of thendual federalism upon which the AmericannRepublic was established. Indeed,nEpstein sets out to make the liberal’s favoritenjudicial device—incorporating selectivelynthe Bill of Rights into the equalnprotection clause of the FourteenthnAmendment—a double-edged sword. Ifnthe Bill of Rights is no longer to be understood,nas it was by John Marshall innBarron v. Baltimore (1833), as protectingnthe states and their citizens against federaln(and particularly congressional)npower, henceforth it should be made tonjustify new judicial incursions, carriednout on behalf of property rights. Thisnargument is already present and well-developednin Epstein’s Takings, and itnnnshould be no source of comfort to defendersnof states’ rights. The Lochnerndecision, it can be argued, unjustifiablynrestricted the legislative power of states,neven though conservatives and libertariansnmight both sympathize with Epstein’snmoral position that workers andnemployers should be allowed to determinentheir own economic relationships.nFinally, what chance is there, pragmaticallynspeaking, that the IncorporationnDoctrine will be turned into a counterrevolutionaryninstrument? And even ifnEpstein does get his way (which is improbable)nin overturning judicially allnlegislation directed against propertynrights, will this stop other judicial socialnengineering from going forward undernstill more radical interpretations of thenBill of Rights? Note that Epstein persistsnin making a case for activist judgesnat all levels, even while deploring thenCivil Rights Act.nEpstein considers the Civil Rights Actnof 1866 and the Thirteenth, Fourteenth,nand Fifteenth Amendments as movesntaken in a classical liberal direction. Then1866 act and the ReconstructionnAmendments, he insists, addressed thenquestions of legal equality, Negro propertynrights, and equal access to public facilities.nBut surely this was not the onlynthrust of the post-Civil War racial legislation!nThe Fourteenth Amendmentnstripped millions of white Americansn(and not only Southerners) of citizenship,nif they could be shown to have aidednthe rebellion against the Union; thenFifteenth Amendment enfranchised anformer slave population whose formernowners had in many cases been reducednto outlaw status. Such legal developmentsnseem far more relevant for understandingnthe true scope of Reconstructionnthan whether blacks were tonhave access to private as well as publicnfacilities. Epstein is right to stress thenessentially conservative nature of thenpredominantly Republican SupremenCourt, which put a brake on Radical Republicannlegislation in 1874 and upheldnstates’ rights positions in several key decisions.nBut then the Court was preciselynthat—a brake on a social and politicalnrevolution that many feared couldnnot be confined to a militarily occupiednSouth.nDespite these further reservations, letnit be said that Forbidden Ground is anAUGUST 1992/33n