Last week, Bruce Bartlett wrote:
The libertarian philosophy of Rand Paul and the Supreme Court of the 1880s and 1890s gave us almost 100 years of segregation, white supremacy, lynchings, chain gangs, the KKK, and discrimination of African Americans for no other reason except their skin color. The gains made by the former slaves in the years after the Civil War were completely reversed once the Supreme Court effectively prevented the federal government from protecting them. Thus we have a perfect test of the libertarian philosophy and an indisputable conclusion: it didn't work. Freedom did not lead to a decline in racism; it only got worse.
Jacob Sullum objects:
The "perfect test" of freedom was a legal regime in which the rights of African Americans were systematically denied, murderous assaults on them went unpunished, and businesses were forced to discriminate against them? And all that was somehow the result of "libertarian philosophy"? It's hard to believe that Bartlett, a former Ron Paul staffer and occasional Reason contributor, believes any of this. This deliberately dense rant reeks of Bartlett's desperation to distinguish himself from libertarians who have been unfairly tarred as racists by joining in the ad hominem assault.
Sullum isn't actually contradicting Bartlett's history here; he's objecting to the idea that the culture of white supremacist violence and coercion in the South, supported by local and state governments, could be described as "libertarian." That's actually beside the point Bartlett is making.
When I first read that paragraph, it seemed clear to me that Bartlett was referring to the fact that the Civil Rights Act of 1875, which did many of the things that the 1964 Civil Rights Act did, was overturned on what can be described as "libertarian" grounds, namely that private discrimination was a private, not a state, matter and that the Constitution did not protect against it. As Justice Joseph P. Bradley wrote in his majority opinion, "It is proper to state that civil rights, such as are guarantied by the Constitution against state aggression, cannot be impaired by the wrongful acts of individuals, unsupported by state authority in the shape of laws, customs, or judicial or executive proceedings." (There's even a shoutout to the 10th Amendment.) That 1887 decision led ultimately to decades of white supremacist violence and coercion in the South, as the federal government was no longer empowered to do anything about it.
I understand why Sullum is upset, but Bartlett isn't saying that "libertarians" did these terrible things or that "libertarians" are responsible for white supremacy. What he's saying is that the reading of the Constitution that the Supreme Court made in 1883 is very much along the lines of what Rand Paul was arguing. The history following that ruling speaks for itself.
-- A. Serwer
