Libertarianism, Federalism, and Racism

The firestorm kicked off by Rand Paul’s remarks has again rekindled the debate about the relationship between libertarianism, federalism, and efforts to combat racial discrimination. There is nothing unlibertarian about supporting federal efforts to combat racial discrimination by state governments. At the same time, however, libertarians (and others) should not assume that unconstrained federal power necessarily benefits oppressed minority groups.

I. Libertarianism and Federal Efforts to Combat Racist State Policies.

As David Bernstein explains, libertarianism is a theory of the relationship between individuals and government, not a theory of the relationship between different levels of government. Thus, there is nothing unlibertarian about one level of government (the federal) intervening to curb the racist oppression of another (state or local). Indeed, such policies actually promote libertarian ends to the extent that they prevent state or local governments from taking away the freedom of blacks or or other minority groups.

Not surprisingly, 1960s libertarians such as Ayn Rand did in fact favor federal action to curb discrimination against blacks by southern state governments. Rand, for example specifically denounced the use of “states’ rights” as justification for Jim Crow in several of her works in the 1960s. In Capitalism and Freedom, written in 1962, Milton Friedman criticized the Jim Crow policies of southern state governments and emphasized that “forced integration” of public schools was preferable to “forced segregation,” though he also argued that both could be avoided by adopting school choice policies. As David notes, many 19th and early 20th century antislavery and civil rights activists – including William Lloyd Garrison, Frederick Douglass, and many of the founders NAACP, such as Moorfield Storey – held what would today be considered libertarian views on economic and social policy. They saw no contradiction between that and favoring federal action against slavery and later Jim Crow. Neither should we.

At the same time, many (though not all) libertarians also tend to fear unconstrained federal power more than they fear the power of state and local governments. This is so for two reasons. First, federal oppression necessarily affects more people because it encompasses the entire nation. Second, people can “vote with their feet” to escape harmful state policies, as many Jim Crow-era blacks in fact did by fleeing to the less bad northern states. It is usually harder to escape federal oppression, which requires leaving the nation entirely.

Notice that the “foot voting” rationale for federalism requires federal suppression of state efforts to constrain the mobility of their citizens. Slavery, of course, was the paradigmatic example of a state policy intended to curb mobility. Even after the abolition of slavery, southern state governments adopted peonage laws (which Bernstein and I discussed here), restrictions on “emigrant agents,” and other legislation intended to force blacks to stay where they were. Federal suppression of these state policies is not only defensible in terms of general libertarian theory, but also in terms of the main libertarian rationale for federalism specifically. This is one of the key distinctions between competitive federalism and “states’ rights” that John McGinnis and I developed in detail in this piece.

II. Why Unconstrained Federal Power isn’t Necessarily Good For Minorities.

Despite the above, many still argue that libertarian support for decentralization of government power is at odds with efforts to combat racist policy. Conventional wisdom holds that history proves that the federal government is usually a friend to minority rights, while state and local governments tend to be more hostile. Thus, transferring more power to the federal government at the expense of the states is likely to be good for blacks and other historically oppressed minority groups.

This, however, takes far too rosy a view of the federal government’s historic treatment of minorities. I discussed this point at some length in a 2006 post. Here are a few relevant excerpts:

[I]t is certainly true that there were two periods in our history (roughly 1860-80, and 1940-70) when states’ rights claims were used to counter federal efforts to protect the rights of African-Americans against abuse by state governments. To the extent that such efforts were successful, they certainly represent an important cost of federalism.

However, the conventional story that federalism is bad for minority rights overlooks other, at least equally lengthy, periods in American history when a unitary federal policy would have been worse for minority rights than federalism. At the time of the Founding, a unitary policy on slavery would probably have meant a requirement that slavery be legal all around the nation, since all [but one of the] thirteen original states had legal slavery [in 1787]. During most of the antebellum period (roughly 1790-1860) proslavery forces had much more power in Congress and the executive branch than antislavery ones, and a unitary policy on slavery and/or the rights of free blacks at that time would probably meant a compromise far closer to the slave state laws of the day than the free state ones. In those areas where the federal government did have authority, it tended to use it to promote slavery more than to restrict it. For example, the federal government facilitated the recovery of escaped slaves through a series of Fugitive Slave Acts (which some northern states resisted on “states’ rights” grounds), and slavery was legal in the federally ruled District of Columbia until 1862….

During the post-Reconstruction Jim Crow era (roughly 1880-1940), a unitary policy on black rights would also probably have left blacks worse off than they were under federalism. At that time, southern whites cared far more about keeping blacks down than most northern whites cared about protecting their rights (and a significant minority of northern whites actually endorsed the southern position). Therefore, a unitary federal policy on black rights during this time would likely have led to a system slightly less restrictive than that which existed in the South, but far more oppressive than that which existed in northern and western states…. The absence of relatively more favorable policies in northern states would have prevented blacks from “voting with their feet” against the South, an option that millions took advantage of from about 1900 to 1960; moreover, if blacks could not vote in the North [as would probably have been the case under a unitary racial policy], the incentive of northern white politicians to support federal intervention against Jim Crow would have been greatly diminished, and the landmark federal civil rights legislation of the 1960s might not have come as soon as it did….

[T]he best window we have on what a unitary national policy on race would have been during this era is the way that the federal government of that period addressed racial issues in those policy areas that were incontestably under its control. For example, the District of Columbia was under complete congressional control, and it had the same kinds of Jim Crow policies as the South… The federal civil service was officially segregated under the [Democratic] Wilson Administration in the 1910s, and remained so under later Republican administrations. Federal immigration policy barred most nonwhite immigrants from entering the country under the Chinese Exclusion Act, the “Gentlemen’s Agreement” barring Japanese immigration, and other related legislation. Finally, federal control in overseas territories such as Puerto Rico, the Virgin Islands, and others, did not exactly result in enlightened racial policies there.

I would add that the largest and most important agency of the federal government in pre-New Deal America was the armed forces. And they were thoroughly segregated until 1948. The Marine Corps even excluded blacks completely until 1942. In addition, the federal government was also more involved than the states in oppressing American Indians and expelling them from their land.

Ideally, the federal government should have the power to eliminate racial discrimination by state governments, without having the power to engage in discrimination of its own and without being granted unconstrained authority to regulate other aspects of the economy and society. I don’t have the time or the space to argue for this view here; but I think the text and original meaning of the Constitution (including the Reconstruction amendments) very roughly approximates this ideal. Be that as it may, it has proven to be much more difficult to institutionalize this approach in a real-world political system than to set it down on paper.

State governments have enacted many oppressive and unconstitutional policies that harmed minorities. But the same can be said for the federal government. Libertarian writers have not come up with a foolproof way to maintain an optimal balance between federal and state power on these issues. Neither has anyone else.