Bruce Bartlett’s Attack on Libertarianism

Bruce Bartlett, an economist whose work I’ve enjoyed reading over the years, and author of a book on the history of the Democratic Party and race, uses the occasion of Rand Paul’s controversial remarks about the Civil Rights Act of 1964 to launch a weirdly ahistorical attack on libertarianism:

As we know from history, the free market did not lead to a breakdown of segregation. Indeed, it got much worse, not just because it was enforced by law but because it was mandated by self-reinforcing societal pressure. Any store owner in the South who chose to serve blacks would certainly have lost far more business among whites than he gained. There is no reason to believe that this system wouldn’t have perpetuated itself absent outside pressure for change.

In short, the libertarian philosophy of Rand Paul and the Supreme Court of the 1880s and 1890s gave us almost 100 years of segregation, white supremacy, lynchings, chain gangs, the KKK, and discrimination of African Americans for no other reason except their skin color. The gains made by the former slaves in the years after the Civil War were completely reversed once the Supreme Court effectively prevented the federal government from protecting them. Thus we have a perfect test of the libertarian philosophy and an indisputable conclusion: it didn’t work. Freedom did not lead to a decline in racism; it only got worse.

Many of the specific factual claims Bartlett makes above are false, but instead of nitpicking those (e.g., African-Americans’ standard of living kept rising after Reconstruction) let’s start with first principles. The basic libertarian position on civil rights is as follows: (1) Private discrimination should, in general, be legal (this includes affirmative action preferences, btw). Many libertarians would make exceptions for cases of monopoly power, and most would ban private discrimination when the government itself ensured the monopoly by law, as with common carriers like trains; (2) The government may not discriminate. If necessary, the federal government should step in to prevent state and local governments from discriminating; (3) The government may not force private parties to discriminate, and the federal government should, if necessary, step in to prevent state and local governments from forcing private parties to discriminate; (4) The government must protect members of minority groups and those who seek to associate with them from private violence. If the state and local government won’t do so, the federal government should step in; and (5) As part of the ban on government discrimination, and to prevent rent-seeking voters from taking advantage of the disenfranchised, members of all racial groups should be treated as individuals for voting purposes, and thus members of all groups should have equal voting rights. If state and local governments don’t guarantee such rights, the federal government should step in.

I don’t think any of these propositions–freedom of contract/association, equality under the law, protection from private violence, nondiscrimination in the allocation of voting rights–are controversial among professed libertarians. Some libertarians may have federalism concerns about the federal role in all this, but federalism, as such, is not a “libertarian” concern.

So let’s compare the libertarian position to what the Supreme Court held in the 1880s, 1890s, and 1900s, and, more generally, to the situation in the Jim Crow South.

(1) The Supreme Court did hold that the federal government could not prohibit private, voluntary discrimination. Some, but not all libertarians, would argue that the Court went too far in allowing discrimination even in common carriers and other monopolies. On that score, the Supreme Court was, say, mostly libertarian. But the Court fails the libertarian test by every other measure, to wit: (2) The Court allowed state and local governments to discriminate with impunity, as with its endorsement of the constitutionality of separate and unequal public schools. The Supreme Court also upheld less well-known examples of discriminatory legislation, such as emigrant agent laws; (3) The Court upheld state and local segregation laws that applied to private parties, most famously the law in Plessy (opposed by the private train company, btw), including even laws that required segregation on interstate trains that traveled to the North; (4) The Court effectively banned the federal government from combating racist violence. (5) The Court failed to protect African-American voting rights.

In short, the idea that the Supreme Court had a “libertarian philosophy” with regard to race that “gave us almost 100 years of segregation, white supremacy, lynchings, chain gangs, the KKK, and discrimination of African Americans for no other reason except their skin color,” is just completely absurd. If there is anything in post-Civil War, pre-New Deal American history that was NOT libertarian, it was how African Americans were treated in the South after Reconstruction.

Admittedly, even if the Court had held otherwise, the political climate was such in the late 19th and early 20th century that it’s unlikely that the outcome for African Americans would have been that much different, because the the political branches needed to take the lead to accomplish anything in practice. But I find it bizarre that Bartlett considers a Court that was essentially “localist” on civil rights issues–keep all three branches of the federal government out of state and local business–to be “libertarian.” As noted above, the Court adhered to the clear libertarian position on less than one out of five criteria, and the “less than one” is almost certainly the least important criteria historically.

Now consider some specific points Bartlett makes about the Jim Crow South: “Any store owner in the South who chose to serve blacks would certainly have lost far more business among whites than he gained. There is no reason to believe that this system wouldn’t have perpetuated itself absent outside pressure for change.” Nonsense. Store owners, employers, et al., had to worry not just about losing business from whites if they treat blacks fairly, but also about private violence and harassment from government officials. Cotton mills that tried to hire blacks, for example, were routinely “whitecapped” into submission. Certainly, there would have been a great deal of segregation and discrimination even without violence and official and unofficial government harassment. But the pervasiveness of segregation, discrimination, and exclusion in the South surely was related to violence and harassment.

Meanwhile, the Supreme Court did, in fact, adhere to a “libertarian philosophy” in one race case, Buchanan v. Warley in 1917, one of the most important, and least appreciated, cases of the early 20th century. In the process of invalidated a residential segregation ordinance, the Court held that racist views and fears of racial unrest could not justify depriving African Americans of their constitutional rights, a principle that came to fruition in Brown. Anti-libertarian Progressives fulminated fruitlessly against Buchanan.

Speaking of Brown, the weirdest part of Bartlett’s essay is that he unfavorably compares the libertarian position to the constitutionalist opposition to federal civil rights laws from the likes of Barry Goldwater and William Rehnquist. Rehnquist, let’s recall, wrote an infamous memo to Justice Robert Jackson in 1953 arguing that the Court should uphold the school segregation laws at issue in Brown, which is quite clearly not the libertarian position. And the constitutionalist position of the 1960s was that the federal government could perhaps (not according to Rehnquist, though), invalidate state and local segregation laws (number 2 above), but could do nothing about number 1, number 3, number 4, or number 5, because they were all beyond federal power.

Bartlett may claim that the constitutionalists were right as a matter of constitutional law. But he purports to be judging libertarians by the results of their philosophy, not by their good or bad intentions. And the result of adopting the Goldwater and certainly the Rehnquist 1950s/60s constitutionalist view is that state-mandated Jim Crow would have continued indefinitely. The result of adopting the libertarian view, or at least the version Bartlett is attacking, is that Jim Crow would have been abolished, except that private discrimination would have still been legal.

This all doesn’t answer every or even many possible objections to the libertarian position on civil rights and antidiscrimination laws. For those interested in a grand defense of that position, at least with regard to employment discrimination laws, see Richard Epstein’s book, Forbidden Grounds.

But for Bartlett to attack libertarianism with the premise that American law was libertarian with regard to how blacks were treated in the Jim Crow South, when in fact they suffered from overt government discrimination, blatantly discriminatory Jim Crow laws, private violence acquiesced to by the government (and sometimes with the participation of the government), and a denial of voting rights based on race, is just risible.

UPDATE: Edited for length. And by the way, many of the leading advocates of civil rights for African Americans in the late 19th and early 20th century, including many of the radical Republicans, Frederick Douglass, Moorefield Storey, and even Justice John Marshall Harlan, would be considered, if not libertarians, at least libertarian fellow travelers on today’s ideological spectrum.