Americans are afflicted with a “collective amnesia” that surrounds the subject of segregation, complacently assured that it was, if anything, a “minor factor” in the striking wealth gap that today divides white from black Americans. In his book The Color of Law, the Economic Policy Institute’s Richard Rothstein argues that not only have Americans forgotten the true legacy of segregation, they have also forgotten its principal cause. Rothstein contends that the polite, embarrassedly euphemistic story we find in the mainstream’s politics of respectability has ignored or underplayed important facts. “Most segregation,” he states in the book’s introduction, “does fall into the category of open and explicit government-sponsored segregation.”
To undergird his claims, Rothstein adduces an impressive body of evidence, surveying a range of government policies and court decisions that he says show the government’s official “imposition of racial segregation,” both forceful and purposeful. His thesis, then, runs quite contrary to the comfortable notion that segregation in the United States is by and large the result of private (that is, nongovernmental) actors’ private decisions and is, therefore, not the kind of action against which the Constitution and federal civil-rights law protect.
Rothstein sets out to provide concrete facts supportive of the claim that federal government policies are implicated in segregation at every stage, stamping the “badge of slavery” on official actions of the government. This systematic segregation and (as Rothstein admirably does not hesitate to call it) ghettoization was neither an accident nor the spontaneous development of private prejudices, even if those played a role. “It was,” Rothstein argues, “a nationwide project of the federal government in the twentieth century, designed and implemented by its most liberal leaders.” If Rothstein is right and that is true, then it follows that the government ought to provide appropriate remedies.
For libertarian readers, Rothstein’s book immediately falls into a much broader, older conversation about the inability of the defective left-right political paradigm to make sense of the uniquely odious history that surrounds race in America. That paradigm unthinkingly places the small and anti-government positions of libertarians on its far right wing, grouped with racists and segregationists of all stripes. The whole of the conversation about the relationship between race and politics in the United States rests on a historical mistake — that government power has tended overwhelmingly to ameliorate the lot of black Americans.
In this version of history, the federal government is rendered coextensive with the exalted, if largely mythological, legacy of Abraham Lincoln, the Great Emancipator — and thus reimagined as a source not of abusive centralized power but of freedom and justice. That story, false though it may be, is deeply ingrained in the discourse, popular and scholarly, about race in America, reaffirmed constantly, and held above inquiry. To question the notion that the federal government is the source of racial justice, to suggest that political centralization is in fact the cause of serious social and economic problems, is to brand yourself a reactionary or worse, a racist.
Somehow, the government’s role in creating, perpetuating, and protecting slavery, America’s ultimate disgrace, is simply forgotten, as if slavery were an example of free-market fundamentalism from which benevolent federal power rescued the nation. Similarly, conventional wisdom has it that in the time since slavery was officially abolished, aggrandizement of federal power to the detriment of the states has generally benefitted black Americans. Once considered, it is perplexing that the Left should want to pursue this line of hypothecating, should want to absolve government power of its crimes against black Americans. But the federal government as enemy — which is to say, the truth — doesn’t fit the narrative of the present moment, which casts Washington, D.C., as the savior of black people throughout American history, from the Civil War to the civil-rights era.
The Color of Law vindicates libertarians, though of course it doesn’t set out to. It bolsters a position libertarians have maintained for generations, one so simple and obviously true that it shouldn’t need to be defended at all: the United States’s shameful history of racial injustice, including Jim Crow laws and segregation, has absolutely nothing to do with the libertarian philosophy of nonaggression and respect for individual rights. That is an extremely unfashionable view. Progressives and socialists have made blaming libertarians for America’s brutal history of racial injustice a favorite pastime.
In a representative article in Aeon, Blake Smith claims that “the original laissez-faire economists loved slavery” and argues, “the birth of modern capitalism depended not only on the labour of enslaved people and the profits of the slave trade, but also on the example of slavery as a deregulated global enterprise.” Hundreds of books and articles prosecute this most absurd case — that because actually existing American capitalism was built on the backs of slaves, today’s free-market libertarians are apologists for an essentially racist political and economic program. Our calls for economic freedom and political decentralism are just coded language.
Smith (and the many others who accept the same ideologically shaped narrative) conveniently omits any mention of the fact that exponents of liberal political economy were among the earliest, most active and outspoken enemies of the slave trade and slavery in general. That fact simply doesn’t fit Smith’s stylized version of history, which of course is not history at all but merely an unsophisticated anti–free-market polemic. Today’s political Left will go to any lengths to pin America’s disgraceful history of racial injustice on the champions of limited government and economic freedom. Such tortured attacks on the free market seem like so many propitiations to the gods of good taste; their connections to historical reality aren’t as important as their propaganda value. The relationship between the philosophical questions surrounding slavery and the 18th- and 19th-century free-trade tradition as we actually find it in history undoubtedly remains contested historical ground. But it is lazy and inaccurate both to conflate libertarianism’s strictly hypothetical vision of free markets with the deeply interventionist historical American economy (at any point hitherto), and to attempt to excise the dauntless anti-slavery efforts of classical liberal free-traders from the historical record. Historian Marc-William Palen, for example, underscores “the strong transatlantic connections between Victorian free-trade ideology and abolitionism,” centered on the group surrounding noted radical free-trade campaigner Richard Cobden. “Cobdenites,” Palen observes, “numbered among the leading transatlantic abolitionists.”
Libertarians argue that, in general, mechanical or institutional constraints on government power function more effectively than do words on paper. We see federalism not as an end in itself, not even as an indispensable component of libertarian theory in itself, but as an instrument with which we can serve the more important, underlying goal of individual liberty. And as legal scholar Ilya Somin points out, such decentralist and federalist reasoning implies the ability to move about freely, to vote with one’s feet by exiting the territory of the abusive government in question. Somin notes that “state efforts to constrain the mobility of their citizens” undermine the entire theoretical structure, which requires real competition between the states. “Slavery, of course, was the paradigmatic example of a state policy intended to curb mobility.” Yet libertarians are somehow blamed for slavery and its inhuman restrictions on movement — that is, for the most serious and obvious affronts to basic libertarian principles.
Easily avoided errors
The arguments in The Color of Law play out against this backdrop; one cannot fully understand Rothstein’s arguments without understanding the historical debate sketched above. An accurate picture of the historical record is especially important here insofar as Rothstein’s chief claim is that the Supreme Court “got [its] facts wrong” in believing “that residential segregation was mostly created by private choices.” Readers who believe with Rothstein that such “segregation was created by state action” will find themselves puzzled at the author’s proposed solutions, all of which call for more state action. At times, Rothstein too readily indulges his impulse to blame concrete, coercive government action, even to this libertarian reader. For example, in his chapter “Private Agreements, Government Enforcement,” Rothstein argues, as the title of the chapter implies, that even genuinely private contractual obligations are a form of government-backed discrimination. Most libertarians would disagree, however abhorrent is the notion of something like a whites-only clause to our philosophy.
In including such arguments, Rothstein seems to want to have it both ways: the whole book is premised on the claim that private prejudice, encapsulated in things such as “racial clauses in deeds and mutual agreements,” was, as a matter of actual, historical fact, insufficient to bring us to the point at which we find ourselves today. That claim, strong enough on its own merits, is seriously undermined by Rothstein’s confusing of private contracts with government action — exactly what he promises not to do at the outset.
Libertarians will be familiar with this easily avoided mistake. It’s what happens when one has studied discrete public-policy problems without considering the deeper questions that precede them, that is, questions of political theory. Had Rothstein a more solid understanding of the theory — the political philosophy — that is necessary to a worthy task such as his book’s, he would be able to see the difference between mere enforcement of a private contract and, for instance, active Federal Housing Administration sponsorship of discrimination. After all, one cannot undertake to sort justice from injustice without a sophisticated theory about what rights individuals possess, what they are allowed to do as long as they leave others in peace, equally free to exercise their rights.
In his good-hearted, if naive, desire for appropriate remedial action, Rothstein accepts the fallacy that we are the government or are in some way responsible for its actions, even those hundreds of years in the past. “It was our government,” he says, “that segregated American neighbors, whether we or our ancestors bore witness to it, and it is our government that now must craft remedies.” That is among the worst and most dangerous of all fallacies, the kind of reflex collectivism that can only aggravate existing problems. This poisonous thinking naturally drives the policy prescriptions that The Color of Law recommends “to provide an adequate environment for [the government’s] integration efforts,” among them, failed socialist ideas such as “a full employment policy, minimum wages that return to their historic level and keep up with inflation, and a transportation infrastructure that makes it possible for low-income workers to get to jobs that are available.”
We must assume that Rothstein is simply unaware of minimum-wage laws’ own racist history, their goal of full unemployment for black Americans and other undesirables. How often we see Progressives’ policy proposals undermining their stated goals. If the Supreme Court’s jurisprudence has been, as Rothstein contends, based on a misreading of the facts, then so are his hastily drawn remedies, which ignore the empirical record of state intervention.
It is regrettable that Rothstein ultimately fails to recognize the broader implications of his own argument. Human beings, possessed of the power to rule others, behave much worse, not better, corrupted by that power rather than elevated by it. We have so enskied political power that we no longer see its true corrupting nature. Progressives such as Rothstein fall again and again into the trap of believing that unchallenged political authority can be a tool used for good. It is astonishing to see The Color of Law call for a laundry list of destructive government actions even as the book’s own words argue that federal programs are “reinforcing racial isolation” even today. As a corrective to the country’s “comfortable delusions” surrounding race, The Color of Law is a welcome addition to the literature. But, as is so often the case, as a formula for solving the problem as described, it shoots wide of the mark.
This article was originally published in the October 2017 edition of Future of Freedom.