Many concerns could be raised about racially restrictive deed covenants and the State, including:
1) the risk of defining “private action” out of existence;
2) the risk of the slippery slope (what other agreements might the State decide not to enforce?)…
Sheldon might just be covering his bases in #2, but for the record I want to reiterate that anarchist libertarians shouldn’t ever be worried about the State not enforcing something. (See my unraveling of the standard–and I think, wrong–libertarian complaint that the State doesn’t protect the property of drug dealers, or the rights of “scabs” to cross picket lines.)
I should think that in a fully free society restrictive covenants in deeds would be unenforceable because they are feudal in nature and thus violate fundamental libertarian principles. A restrictive covenant constitutes a prohibition that “runs with the land” in perpetuity, permitting rule by the dead hand of the past.
Does Sheldon object to wills?
Many years ago I got into a huge argument with a guy on this very topic. I was saying that you could obviously include contractual provisions when selling something that limited its use, and that in principle you could say, “Sure I’ll sell you my dog, but only if you agree to keep up with his shots.” Or: “Sure, I’ll sell you my house, but only if you agree not to cut down the oak tree in the backyard. My mom planted that when I was little and then we lost her to cancer. I have to leave town to take a new job, but I don’t want to sell this place unless I know the tree won’t be cut down.”
The guy arguing with me, though, took Sheldon’s tack. He pointed out that I could be dead for 50 years and yet everybody would have to deal with this stupid oak tree. He started citing Thomas Paine’s critique of hereditary monarchy and things were getting heated (seriously).
The eventual resolution we reached was that if no one in the whole society wanted the property with its eccentric stipulations, then it would revert to unowned property and could be homesteaded in standard libertarian fashion. But the catch is, the great grandson inheriting the estate can’t just say, “I don’t want to go to college with this money like the will says, so I’ll ‘not accept’ it, wait two seconds, then claim the unowned pile of money with no strings attached.” No, the will would have clauses to get around that kind of thing, like, “If my good for nothing heirs don’t want to go to college, then the money goes to…” And then only if literally no one on earth wants to accept the money with the strings attached, does it revert to unowned property. And even then, there wouldn’t be a presumption in favor of the grandson getting it.
Back to Sheldon:
I acknowledge that in throwing out the bathwater of racially restrictive covenants, I may also be throwing out some desirable babies. But my hunch is that the constructive things we might get from covenants could be achieved other ways. The virtue of my approach to invalidating racially restrictive covenants is that we would both strike another blow against racism and rid ourselves of the last vestiges of feudalism.
Sorry but that last sentence seems rather irrelevant and flashy to me. The point isn’t to take positions on rights that yield the outcome you want. If that’s what you’re doing, then you might as well just say, “I don’t like racism, so that’s why you can’t have racially restrictive covenants, and it’s why you can’t write racist books.”
Maybe someone like Gene Callahan is right, and it’s a waste of time to try to use general principles when solving questions of legality in specific cases. But Sheldon isn’t going that route; he is trying to use libertarian principles to get rid of something that strikes him as yucky, it seems to me.