What do Classical Liberalism and Black History Have to Discuss?

   

I contend that the classical liberal tradition has far more to say about Black American history, our current racial reckoning, and Black flourishing in the future than is generally understood, even among classical liberals themselves. The Hayekian understanding of a legal and cultural infrastructure for a just liberal order makes it obvious that the exclusion of one particular group from fundamental legal rights and protections will be not only structurally unjust but will also result in a corresponding exclusion from the prosperity that such an order promised. In fact, the free market economic analysis of classical liberalism allows us to criticize both traditional and progressive racism in American law. Should these insights be merely theoretical, however, should they have resulted in no action on the part of classical liberals to remedy the injustice, we may be forced to cede some ground to the claim of critical race theorists that liberal neutrality only perpetuates historic oppression and does not liberate. Classical liberals can avoid this conclusion by appealing to a train of figures who played central roles in the abolitionist movement, the rise of the NAACP, and current battles such as criminal justice reform. 

On the other hand, while we ask what classical liberalism has to say to Black America, we should also ask what Black America has to say to classical liberalism. While many figures fought hard for the liberation of Black Americans, some ignored their plight in spite of the fact that liberal standards for law were consistently undermined and compromised to establish and maintain economic and social divisions between white and Black people. This opportunity for reflection should lead classical liberals to a greater appreciation for the role of a certain kind of civil society that any truly flourishing, free society must rely upon: one informed by the kind of prioritization of the voiceless that we see, for instance, in the prophetic Hebrew scriptures so beloved and vital to the Black church and the civil rights movement.[1] It reminds us that oversimplified notions of simply minding our own business or keeping government as small as possible don’t actually lead to a free and just society. Rather, we must both limit government within its proper bounds and ensure it provides equal protection of the law to all citizens. We must fight whenever the state treads on anyone’s rights and dedicate ourselves to wise philanthropy that heals the wounds of the past, because we know that the state causes problems that it cannot solve.

In such a short space we can only review the way that the state enabled and extended ethnic hatred throughout American history. As far back as 1741 states began passing laws forbidding Blacks from selling products in the marketplace, and by 1796 forbade property ownership as well. Legislators argued that doing so would bury Black “seeds of ambition” too deep “ever to germinate.”[2] The institution of slavery itself involves the most egregious forms of violent crime, including kidnapping, false imprisonment, the violation of one’s rights to bodily autonomy, the theft of another’s labor, the violation of parental rights, physical and sexual assault, and even murder. After a rash of manumissions following the Revolutionary War, many states forbade or imposed prohibitive regulations on the voluntary freeing of one’s slaves, such as requiring the exile of the enslaved person from the state. Unfortunately for those who chose exile, non-slave states instituted Black codes that stripped Black people of basic rights such as access to the justice system, the right of assembly, and the right to bear arms. After emancipation, Black citizens could hardly find a court that would defend their property rights when whites stole their land or that would punish whites for breach of contract (although the Freedmen’s Bureau provided some relief). Ultimately, formerly enslaved people received no financial compensation for the rights violations they were allowed to suffer or for their lost wages. 

“Slavery by another name” persisted through convict leasing, which involved layers of deep legal corruption. Unjust laws, coupled with trumped up court fees led to long sentences of work in the mines. Poor nutrition, lack of sunlight, dirty water, and constant abuse resulted in a high death toll when sickness would sweep through the camps. The death rates increased at such an alarming rate that the head of the 1906 Board of Inspectors of Convicts argued that “[i]f the state wishes to kill its convicts it should do it directly and not indirectly.”[3] Records reveal boys as young as seven years old included on lists of convicts.

Jim Crow consisted of municipal and state laws that violated the freedom of association between individuals and businesses across the south. Some fought back, as when streetcar companies and train companies funded cases that might overturn the requirements to have racially segregated cars. Others found work-arounds, as when Sears became immensely popular with Black customers because they could order high quality goods through the mail rather than deal with the indignity of bad treatment (or no service at all) in white shops. 

The Progressive Movement of the late 19th and early 20th century was deeply racist in the purest sense; progressive ideology was grounded in a commitment to shape the direction of evolution through eugenics. Eugenic ideas were “politically influential, culturally fashionable, and scientifically mainstream,” including among elites like John Harvey Kellogg, Teddy Roosevelt, and Woodrow Wilson.[4] Black leaders begged Wilson not to re-segregate federal government jobs, but to no avail. Progressives believed that the healthy family life of the Anglo-Saxon male had to be upheld by excluding women, foreigners, and Black people from employment as much as possible. This kind of social engineering mindset resulted in schemes such as wage and hour laws and the minimum wage, which guaranteed the exclusion of women and non-white men by making them too expensive to hire. The Federal Housing Administration also endeavored to keep the races separate through federal housing policy that forbade banks from lending to people in Black or mixed-race neighborhoods or from building such neighborhoods. In the thousands of lynchings and dozens of race-based massacres that occurred during this period, law enforcement was overwhelmingly complicit. Whites who attempted to uphold Black rights to a fair trial were lynched as well.

As municipal leaders designed the routes of the Federal Highway System through every major city, city leaders plowed through Black economic centers, destroying them, and purposefully chose routes that would cut between Black and white parts of town, making the organic movement of people impossible. The federal government also funded Urban Renewal, known to Black Americans as “negro removal” because the state took their homes through eminent domain and destroyed them. Poor but upwardly mobile Black neighborhoods were scattered to the four winds. No miracle of planning could have reconstituted the community networks they had worked so hard to build.

While race relations were still in very bad shape, the Black American poverty rate dropped astoundingly from 89% to 41% between 1948 and 1960. While every legal barrier of Jim Crow, northern sundown towns, and recalcitrant courts still remained, nothing could stop the economic juggernaut of the post-war boom. Almost half of Black America was swept out of poverty right along with it.

Today, we know that while the war on drugs and our out-of-control incarceration rates are not based on explicitly race-based laws, they often have a disparate effect on Black Americans who have a higher likelihood of living in concentrated poverty. Overcriminalization; stacked charges; mandatory minimum sentences; unaccountable and badly-incentivized prosecutors with wide discretion; prison guard unions that lobby for harsh sentences; and a slow and labyrinthine legal process all conspire to crush citizens with few resources and limited social networks.

This is just a gloss of the way that municipal, state, and federal laws violated the commitment of liberal law to individual rights – sometimes by specifically targeting Black Americans, but also by passing laws that were facially neutral but were overtly intended to target them. While the Davis-Bacon Act, which limited federal contracts to union labor, mentions nothing about race in its text, representative Robert Bacon championed the law in Congress by arguing, “[o]nly by this method can that large proportion of our population which is descended from the colonists…have their proper racial representation” in the work-force.[5]

Classical liberals love civil and economic liberty, believe that the state should be as neutral between citizens as possible, and treat state power with healthy suspicion. They should be the most attuned to the systemic oppression of Black Americans, and some of them have been. William Lloyd Garrison was not only a great abolitionist, but called himself a “radical free trader.” Along with Henry Ward Beecher, Joshua Leavitt, and Ralph Waldo Emerson, Garrison was influenced by Richard Cobden, a British classical liberal thinker who saw both the abolition of slavery and freedom from tariffs as arising from the same philosophy of non-violence. Frederick Douglass defended the Constitution based on the great individualist Herbert Spencer’s contractual reading of it. Douglass was a free trader, arguing that the way that the unions pitted workers against one another and against employers was not so much “villainy” as the “honest stupidity” of people who didn’t understand the concept of a positive sum game.[6] Two of the founders of the NAACP were outspoken classical liberals as well, Oswald Garrison Villard and Moorfield Storey. The whole approach of the NAACP relied on the idea that our Constitutional structure would uphold the rights of Black citizens if these unjust laws were consistently challenged. 

It’s worth noting that the success of the NAACP and the civil rights movement depended heavily on the economic success of the Black middle and upper classes, established through the efforts of men like Booker T. Washington to encourage property ownership and business networking. Successful entrepreneurs like Madame C.J. Walker and T.R.M. Howard provided pivotal funding. Classical liberals can also draw attention to the relevance of strong civil society associations for freedom and flourishing. Classical liberals can emphasize the centrality of the Black church to the astounding accomplishment of majority Black literacy by 1910, to the whole philosophy of the civil rights movement, and as the “cultural womb” from which so many other voluntary institutions arose, such as the fraternal associations that provided a kind of community insurance for a majority of Black families in the early 20th century. 

We don’t have space here to discuss many other notable pro-Black classical liberals, such as Rose Wilder Lane (one of the three “mothers of libertarianism” who wrote about Black liberty at the Pittsburgh Courier) or Zora Neale Hurston (anthropologist and novelist who was eventually black-balled for her stubborn individualism). The efforts of Charles Koch to address our mass incarceration crisis pre-dated the more general popularity of the cause, and was pivotal in inspiring conservative openness to reform.

Still, it’s disappointing that F.A. Hayek, who spent his career in America discussing the legal and cultural infrastructure of a free and prosperous society, nowhere so much as mentions that a whole subset of the American population was being systematically excluded from those institutions and their many benefits. It’s inconsistent for classical liberals to be unconcerned with the property, contract, and due process rights violations Black people suffered under a wide variety of laws prior to 1964, but deeply concerned about the issue of freedom of association in the Civil Rights Act of 1964.[7] Just as the founders consistently argued that a free society requires virtuous citizens, so must we argue that a just society requires sacrificial citizens, citizens who will champion those with less clout and fewer resources, those who are too easily victimized by America’s justice system, economic regulation, and ham-fisted attempts at social engineering. The liberty movement in America has been, and must continue to be, pro-Black.

[1] See Raboteau’s Slave Religion, Marsh’s God’s Long Summer, and the opening of Tanner’s The Inclusive Economy.

[2] Roy W. Copeland, “In the Beginning: Origins of African American Real Property Ownership in the United States,” Journal of Black Studies 44, no. 6 (2013): 649, http://www.jstor.org/stable/24572860.

[3] Blackmon, Slavery by Another Name, 288.

[4] Leonard, Illiberal Reformers, 110.

[5] Quoted in George F. Will, “A Racist Vestige of the Past That Progressives Are Happy to Leave in Place,” Washington Post, June 19, 2017, https://www.washingtonpost.com/opinions/a-racist-vestige-of-the-past-that-progressives-are-happy-to-leave-in-place/2017/06/16/6d5cbbba-51f3-11e7-91eb-9611861a988f_story.html.

[6] Quoted in Paul D. Moreno, Black Americans and Organized Labor, 37.

[7] To be fair to Barry Goldwater, he voted for every other piece of civil rights legislation prior to 1964, felt torn about his vote in 1964, and regretted it later.