Rosa Parks Day: The Triumph of Colorblindness and CapitalismJonathan Bean • Friday November 20, 2015 11:53 AM PST •
Sixty years ago, Rosa Parks refused to give up her bus seat to a white man and was arrested for disobeying Montgomery, Alabama’s segregation ordinance. The story is well-known, even today, as we celebrate “Rosa Parks Day” (December 1). Following her arrest, African Americans organized a boycott of the city’s privately-owned bus company. Martin Luther King, Jr. became spokesman for street protests and, ever since, the civil rights movement is remembered as a militant expression of civil disobedience and “taking it to the streets.” Within a year, the city ended desegregation, but not for the reasons you might think. The real heroes behind Rosa Parks were the NAACP lawyers who battered down the walls of institutional racism with the force of the constitution, color-blind law, and capitalist forces that worked against racism—hallmarks of the classical liberal tradition of civil rights.
Laws segregating the races created separate spaces for each: separate bathrooms, water fountains, schools, theaters, and even beaches. Trolley cars and buses posed a challenge because it was economically impracticable to run separate bus lines; one for whites, the other for blacks. Therefore, as virulent white racism swept the South in the 1890s, cities passed ordinances requiring private bus companies to create separate sections for blacks and whites. As I demonstrate in Race and Liberty in America: The Essential Reader, bus companies strongly opposed this interference with their business. Company drivers would have to identify who was black or white. Furthermore, the creation of white and “colored” sections forced the bus companies to eliminate a benign form of segregation that they had created in response to consumer demand: a section for nonsmokers (smokers, not blacks, were relegated to the back of the bus). First-class “ladies” cars also had to go. Eliminating the “ladies” section placed respectable women next to prostitutes and male patrons who were not always gentlemen.
In city after city, bus companies refused to enforce the statutes. Finally, Alabama and other states passed laws forcing companies to discriminate. When companies still refused to obey, the state sent police to arrest company employees (including drivers). In short, the economic logic of market capitalism favored nondiscrimination (money is colorblind) while state governments mandated segregation—and enforced this mandate with the strong muscle of police power. In Virginia, the state law deputized the bus drivers themselves as “special policemen.” Similarly, Montgomery bus drivers were armed with guns and police power. (Although in Rosa Parks’ case, the driver called the regular police to carry her to jail).
An excerpt from Race and Liberty in America: The Essential Reader offers one railway lawyer’s effort to explain that such ordinances were a nuisance to everyone regardless of race:
“Every thoughtful man . . . will realize the difficulties presented, not only to the Railway company, but to the traveling public, in reaching a practical solution of the question. Travel is not uniform. Congestion at times is inevitable. The hauling of empty cars is expensive. Street transportation must be prompt and rapid. Delays are insufferable to the busy man. . . .A passenger hurrying from his home to his business at a remote point would deem it intolerable to be passed simply because the seats of the car are filled when plenty of standing room remains in the aisle or between the seats. The same is true of most other passengers, male and female, white and colored, seeking to meet appointments. What shall the Railway company do? When that question is answered fairly and justly the Railway company will cheerfully respond.”
This forgotten battle of business-versus-government is an important part of the Rosa Parks story, because the bus company in Montgomery, Alabama was a private company legally bound to uphold the city and state segregation ordinances. In 1955, the company had a city-sanctioned monopoly and no reason to challenge the city ordinance, which earlier years of failed opposition had rendered futile.
Rosa Parks’ disobedience and the resulting boycott are well remembered during celebrations of black history. Yet, the 381 day boycott was a failure. After more than a year, the city refused to desegregate the buses. Then, on November 15, 1956, the U.S. Supreme Court ruled bus segregation an unconstitutional violation of the 14th amendment’s guarantee of Equal Protection of the Law. Few people remember that the boycott failed, while a lawsuit secured victory. (The plaintiffs did not include Rosa Parks; her case was bogged down in state court. Other black riders filed in federal court and won.)
The real heroes are unsung: the NAACP lawyers who labored in pursuit of a “colorblind Constitution” that nullified all forms of segregation. The NAACP role should not be a surprise: Rosa Parks was secretary of the local NAACP branch and their lawyers were looking for a “test case.” Established in 1909, the NAACP aimed to overturn the “separate but equal” doctrine set by the Supreme Court in the Plessy v. Ferguson decision (1896). Inspiration came from the sole dissent in that case, by Justice John Marshall Harlan, who wrote: “in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens.” An aide to NAACP lawyer Thurgood Marshall recalled “Marshall’s favorite quotation was, ‘Our Constitution is color-blind.’ It became our basic creed.” Marshall’s masterful legal skills won case after case from the 1940s to the 1960s. He is arguably, the civil rights advocate who had the greatest impact on American life—greater than that of Martin Luther King, Jr. for whom we celebrate another national holiday. (Privately, Marshall disagreed with King’s protests—including the Montgomery bus boycott—and felt they distracted from the phenomenal success the NAACP was enjoying in court. He also believed that King’s raucous disobedience fomented backlash and violence.)
NAACP lawyers advocated not only a colorblind interpretation of the Constitution but also private property rights as a weapon against state-mandated segregation. In 1917, NAACP president and lawyer Moorfield Storey challenged a Louisville, Kentucky ordinance that would have segregated the city block by block, with some blocks of housing designated for whites, others for blacks. Predictably, the NAACP argued that this was a violation of the 14th amendment guarantee of equal protection. Yet the case hinged on the right of property owners to sell their property to whom they wish. This expression of laissez-faire liberalism fit nicely with the notion that the government ought not interfere in voluntary racial relations or business transactions. Charles H. Buchanan, a white property owner who opposed the Louisville ordinance, sold property to William W. Warley (a black man). The law prohibited this voluntary act and Warley refused to pay, thus setting the stage for a court battle. In Buchanan v. Warley (1917), the U.S. Supreme Court overturned residential segregation—37 years before it overturned school desegregation in Brown v. Board. Between 1917 and 1967, the NAACP’s commitment to classical liberal doctrine (colorblindness, respect for private property rights) was strong. Only in later years did it abandon nondiscrimination for race preferences.
“Rosa Parks Day” celebrates the courageous life of a woman tired of discrimination. Yet the day is also a broader celebration of the classical liberal movement, spearheaded by the NAACP, that dismantled segregation in all areas of American life. The street protests and demonstrations are part of our civil rights history. Yet, when it comes to the desegregation of buses, credit belongs to the constitution-minded lawyers who, for too long, have not gotten the remembrance they deserve.
PHOTO CREDIT: “Woman fingerprinted. Mrs. Rosa Parks, Negro seamstress, whose refusal to move to the back of a bus touched off the bus boycott in Montgomery, Ala.,” 1956. Prints and Photographs Division, Library of Congress. Reproduction Number LC-USZ62-109643.
For more on this general topic, see:
Race and Liberty: The Essential Reader, edited by Jonathan Bean
Competition and Coercion: Blacks in the American Economy 1865-1914, by Robert Higgs
Julie Novkov, “Segregation (Jim Crow),” Encyclopedia of Alabama (July 23, 2007; Updated May 23, 2013)
Jennifer Roback, “The Political Economy of Segregation: The Case of Segregated Streetcars,” 46 Journal of Economic History, Vol. 46 (1986)
Elliott Rudwick, “The Boycott Movement Against Jim Crow Streetcars in the South, 1900-1906,” 4 Journal of American History, Vol. 55 (March 1969)
Thurgood Marshall: American Revolutionary, by Juan Williams
Tags: American History, civil rights, color-blind law, Constitution, Free Market, Jim Crow, Liberty, Martin Luther King Jr., Montgomery bus boycott, NAACP, race-neutral law, Rosa Parks, segregation, The State