The great figures in America’s civil rights tradition fought for racial justice without abandoning love for America and the principles embodied by the Declaration of Independence and the Constitution. Today, when Americans divide themselves into conservative and radical factions, it helps to remember that many great champions of civil rights were conservative radicals. Thus, the great lion of civil rights, Frederick Douglass, aligned patriotism with civil rights: his Fourth of July speech was a jeremiad tearing down America’s racial wrongs while ending with hope and the fervent belief that the Constitution was a “glorious liberty document” then and a buttress to civil rights in the future. Martin Luther King, Jr.’s “Dream” speech, with its radical demand for America to make good on a “promissory note” to African Americans, was wrapped in patriotism as well. Conservatives are wrong to claim Douglass and King as conservatives, just as the Left is wrong to emphasize only their radicalism; in truth, both men were conservative radicals. Their view was not the conservative “My country, right or wrong” or the radical “My country, more wrong than right”; the views of Douglass and King might be characterized as “My Country, Wrong and Right.”

Throughout our history, less well-known figures kept the spirit of conservative radicalism alive. In 1813, the African American businessman James Forten denounced racist legislation that, if passed, would have required all blacks in Pennsylvania to register with the police to prove that they were not fugitive slaves. (The measure did not pass). In the same document, Forten noted that Independence Day was a dangerous day for blacks to be in public when they would be assaulted by drunken whites “celebrating” the holiday. Yet, Forten’s fury was directed against those racist whites who asserted that America was not the home of African Americans. Like other “conservative radicals,” Forten believed Independence Day belonged to all Americans. Thus, he opened his petition:

“We hold this truth to be self-evident, that God created all men equal, and [it] is one of the most prominent features in the Declaration of Independence, and in that glorious fabrick of collected wisdom, our noble Constitution. This idea embraces the Indian and the European, the Savage and the Saint, the Peruvian and the Laplander, the white Man and the African, and whatever measures are adopted subversive of this inestimable privilege, are in direct violation of the letter and spirit of our Constitution. . . .”

In the 1870s and 1880s, when white Americans demanded the exclusion of Chinese from immigration to the United States (passed by Congress in 1882), conservative radicals drew upon the Declaration of Independence to fight the odious law that ended the era of free immigration. Senator Joseph Hawley said of the Chinese Exclusion Act:

“A few words in this proposed law may be quoted for a century, not as the opening lines of the Declaration of Independence are quoted, as a comfort, a prophecy, a battle-cry, but on the same page with the edict of Nantes, the innumerable decrees tormenting and banishing and excluding the Jews . . .”

With this and other wrongs done to them, Chinese Americans might have felt offended by the idea that the promise of America had anything to offer them. But they, too, used the Declaration as a “comfort, a prophecy, a battle cry” against racist treatment. In a letter to a newspaper editor, Norman Asing responded to those calling for Chinese Exclusion by stating “The declaration of your independence, and all the acts of your government, your people, and your history are against you.” He was right. Of course, the acts of the U.S. government were wrong in 1882 and future generations of activists drew on the founding principles to finally defeat race-exclusionary immigration laws.

In the twentieth century and beyond, the Declaration and Constitution continued to be a “comfort, a prophecy, a battle cry” for many successful civil rights activists. Whether it was Thurgood Marshall in the nation’s courts, Branch Rickey desegregating baseball diamonds, or Barack Obama breaking the color barrier in the White House, they drew upon those founding documents not as window dressing but as something Americans across the spectrum shared in common.

Racism abounds in American history, but the tradition of patriotic anti-racism has been a powerful force for progress. Whether out of conviction or virtue signaling, today there are many who advertise their anti-racism. But anti-racism that misunderstands the past does little good for achieving real progress in the present. As Mr. Obama declared not so long ago, denying the essential unity of Americans—e pluribus unum—breaks with the philosophy and tactics used in the past to make this a nation worth celebrating on the Fourth of July, and every other day of the year.

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(Continued from Part I)

Throughout American history, government at all levels has used race to categorize, enslave, segregate, and regulate human behavior, and limit immigration with “nationality” quotas that served as substitutes for race. Categorizing by race was essential to racist agendas.

In response, classical liberal civil rights activists struggled to eliminate government-mandated racial categories. They were anything but naive: racism was real, categories or no categories, but the government stamp of approval made things worse–and caused constant mischief in the ever increasing addition of group categories in the census or in immigration statutes. The only feasible solution was the most radical one: the complete elimination of government racial categories. Individuals might discriminate but would no longer have the support of the State. With time, classical liberals felt, the irrationality of racism and xenophobia would give way to better human relations.

Examples of the commitment to colorblind law abound in my edited volume Race and Liberty in America: The Essential Reader (University Press of Kentucky, with The Independent Institute, 2009). (See also Andrew Kull The Color-Blind Constitution (Harvard University Press, 1998) .

From Race and Liberty in America:

James Forten (1813): writing in opposition to a law that would require free blacks only to register with the government or be subject to possible enslavement:

“We hold this truth to be self-evident, that God created all men equal, and [it]
is one of the most prominent features in the Declaration of Independence, and
in that glorious fabrick of collected wisdom, our noble Constitution. This idea
embraces the Indian and the European, the Savage and the Saint, the Peruvian
and the Laplander, the white Man and the African, and whatever measures are
adopted subversive of this inestimable privilege, are in direct violation of the letter
and spirit of our Constitution. . . .”

Senator Oliver Morton (R-IN), 1877: stating his opposition to Chinese Exclusion bills:

“The foundation-stone in our political edifice is the declaration that all men are
equal; that they are endowed by their Creator with inalienable rights; that among
these are life, liberty, and the pursuit of happiness; that to obtain these, governments
are instituted among men, deriving their just powers from the consent of
the governed. We profess to believe that God has given to all men the same rights,
without regard to race or color. . . .”

Frederick Douglass (1884): his marriage to a white woman caused controversy among some blacks. In later years, states would pass laws prohibiting marriage between a black and white man or woman. Those laws were not struck down until 1967 (that decision discussed below as the culmination of the classical liberal movement to remove racial categories from government documents, including marriage certificates):

“All this excitement, then, is caused by my marriage with a woman a few shades lighter than myself. If I had married a black woman there would have been nothing said about it. Yet the disparity in our complexions would have been the same. I am not an African, as may be seen from my features and hair, and it is equally easy to discern that I am not a Caucasian. There are many colored ladies of my acquaintance who are as good as I, and who are a great deal better educated, yet, in affairs of this nature, who is to decide the why and the wherefore. . . .”

“I conceive,” said he in conclusion, “that there is no division of races. God Almighty made but one race. I adopt the theory that in time the varieties of races will be blended into one. Let us look back when the black and the white people were distinct in this country. In two hundred and fifty years there has grown up a million of intermediate. And this will continue. You may say that Frederick Douglass considers himself a member of the one race which exists. ”

Justice John Marshall Harlan (dissent, Plessy v. Ferguson, 1896):

“Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.”

Louis Marshall (1922, 1924): the great champion of liberal immigration and opponent of the 1920s laws that imposed racial/ethnic quotas limiting the number of “inferior races” coming from Southern and Eastern Europe:

“When one becomes a citizen of the United States he is an American citizen in every sense of the word. Whatever his nationality or origin may have been, it is forgotten. Wherever his cradle may have been rocked is unimportant. He brings to this country such gifts as he possesses. All of them combined have created that remarkable being, the finest the world has ever known, the composite American. I, therefore, feel a sadness in my heart whenever I hear men say: “This man is an Irishman;” “This man is a Scotchman;” “The Dutch have these qualifications;” “The Greeks have those;” “He is a Dago;” “He is this, that, or the other thing.” The sooner we stop it the better it will be for the unity of the Nation, and for the welfare of the world.”

Civil Rights Act (1964):

This landmark legislation prohibited discrimination based on race, color, creed, national origin and sex. There was no listing of group categories to be protected. Nondiscrimination meant no discriminating regardless of race. Period. As John David Skrentny notes, “the acceptance of the color-blind principle of equal employment opportunity was at an all-time high in 1964.” (Quoted in Bean, Big Government and Affirmative Action: The Scandalous History of the Small Business Adminisration, p. 41).

NAACP: As late as the 1960s, the NAACP steadfastly opposed all racial categories and check boxes on government forms:

1961: a letter-writer from New York asked the group’s position on a state bill to repeal racial categories on marriage certificates. NAACP attorney Robert L. Carter responded:

“Color designations on birth certificates, marriage licenses and the like can serve no useful purpose whatsoever. If we are prepared to accept the basic postulate of our society—that race or color is an irrelevance—then contentions that race and color statistics are of social science value become sheer sophistical rationalization.”

1965: When the EEOC advocated racial reporting on government forms, Clarence Mitchell of the NAACP stated that “the minute you put race on a civil service form . . . you have opened the door to discrimination.” The use of racial categories would “put us back fifty years.”

1967: In its Loving brief, the NAACP argued that the Supreme Court ought to strike down Virginia’s ban on interracial marriage (and its requirement that couples have “certificates of racial composition”). The NAACP declared:

“Classification by race based upon non-existent racial traits does not serve any valid legislative purpose but merely continues a classification of Americans as superior and inferior in contradiction to the American concept of equality.”

Supreme Court (1967): In the Loving decision, the Supreme Court ruled that laws prohibiting white-black marriages (and also requiring the abovementioned certificates of race) were unconstitutional:

“We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.”

This theme of colorblind law permeated the classical liberal tradition and culminated in the passage of the Civil Rights Act of 1964 and Supreme Court decisions such as Loving  (1967), the last decision based clearly on natural rights liberalism (the natural right to marry meant to be free of government prohibitions on interracial matrimony, which existed in 16 states in 1967).

As late as 1967, the principle of colorblind law seemed vindicated by the Civil Rights Act and multiple court decisions.

Then, the riots occurred. Without any groundswell of popular demand, colorblind law gave way to a renewed Orwellian obsession with racial categories, initially as an attempt to “buy peace” in the smoldering cities.

(Continued in Part III)

The post 50 Years Ago Today: The Detroit Riot and the Decline of Civil Rights Liberalism (II) appeared first on The Beacon.

The Detroit Riot marked a turning point in how American policymakers dealt with race. The classical liberal tradition of civil rights, with its emphasis on rule of law and equal protection (regardless of race) gave way to policies that purposely treated minorities as “protected categories” deserving of treatment not accorded other citizens. This was a crisis response to the riots and also the consequence of a “riot ideology” that condoned lawless mobs—as long as they were black. In short, the things that civil rights activists had long fought against—racial categories in the law, preferential racism (formerly for whites, now for blacks and others), and lawless mobs—were embraced as the means to achieve “social justice.” Ever since, classical liberals have struggled to get us back to the colorblind law and individualism that were at the core of the long civil rights movement. The story of that long civil rights movement is told in my Race and Liberty in America: The Essential Reader (University Press of Kentucky for the Independent Institute, 2009). I deal with Detroit (and other) riots in the article “‘Burn, Baby, Burn’: Small Business in the Urban Riots of the 1960s”, which is a good starting point to understand the competing interpretations of the riots.

In the next several days, I will comment on the turning point of 1967-1968, beginning with the classical liberal civil rights movement before and after the Detroit Riot. What lessons have policymakers learned? Are they the correct ones? How may we revive the classical liberal tradition of civil rights?

(continued here)

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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 14^th 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 14^th 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)

Right to Ride: Streetcar Boycotts and African American Citizenship in the Era of Plessy v. Ferguso, by Blair L. M. Kelley

Thurgood Marshall: American Revolutionary, by Juan Williams

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