The Volokh Conspiracy

At Election Law Blog, Rick Hasen revisits the New Black Panthers Party scandal that engulfed the Department of Justice’s Civil Rights Division and became the source of largely partisan infighting on the U.S. Commission for Civil Rights. The Justice Department’s Office of Professional Responsibility concluded a report on the controversy back in March that largely confirmed my take on the matter. (I had missed news of this report, covered at TPM but largely escaping notice elsewhere.)

To recap, the original incident was no big deal. The NBPP members’ actions may have been illegal, but there’s little no evidence any actual voters were intimidated, so it’s not clear why this case was ever worth much attention. The OPR report is most enlightening  in its discussion of why the Obama Justice Department sought to narrow the injunction after it had obtained a default judgment. As Prof. Hasen notes, there were reasonable bases for the move — but no one at DoJ ever made a public effort to explain them.   DoJ officials acted as if there was something to hide, even though there wasn’t.  Had Department officials been more forthcoming, it would not have satisfied all their critics, but it would certainly have kept this tempest inside a rather small teapot.

UPDATE: After corresponding with some individuals who are closer to this case, I’ve concluded that I should have written that there was “little” evidence of actual voter intimidation, rather than “no” evidence.

On Friday the Washington Post ran an extensive story on the Justice Department’s handling of a voter intimidation case against members of the New Black Panther Party in Philadelphia.  Based upon the Post‘s reporting, which seemed quite thorough and balanced, I’ve come to the following conclusions:

1. The original case was small potatoes.  The Philadelphia district attorney’s office thought it was a “non-incident.”  Yes there were technical violations, but the Bush DoJ never identified any voters who felt intimidated by the Panthers, so it’s hard to justify making their conduct into a federal case.
2. It may not have made sense to pursue the case in the first place, but once the Justice Department obtained a default judgment, it made no sense to dismiss it and narrow the injunction.
3. As is so often the case, it’s not the crime but the cover-up.  Justice Department officials have never forthrightly explained their decision to dismiss the case and have alternately stone-walled and dissembled about the involvement of political appointees.  Had they instead come clean at the outset, this issue would have gone away and conservative complaints would have never gained traction (let alone this sort of coverage from the Post).
4. The Civil Rights Division at DoJ remains politicized and divided, as it has been for quite some time, and this cannot be good for the even-handed enforcement of federal law.

On September 14, the US Commission on Civil Rights will be hosting a conference on Civil Rights in the 21st Century that may interest many of our readers. The event will be in Washington, DC, at the National Press Club [HT: My fiancee Alison Schmauch, a special assistant/counsel at the Commission].

There will be many prominent civil rights scholars and activists from across the political spectrum among the speakers, including James Patterson, Harry Holzer, Amy Wax, Amitai Etzioni, and others. The keynote speaker will be Washington Post columnist William Raspberry. Alison points out that law students, in particular, may want to take advantage of the opportunity to meet prominent people in this field.

Here is my final contribution to the Cato Unbound mini-colloquium on libertarianism and antidiscrimination laws.

Meanwhile, my friend Bryan Caplan criticizes my argument (read the original essay here) that Title II was justified on libertarian grounds to break up the Jim Crow cartel. He argues that the logical implications of my argument that Title II suggest that the government should also have regulated the speech and marriage markets:

In fact, simple deregulation probably would have worked better for business than for marriage or speech. Both marriage and speech have a strong herding component. Most individuals don’t want to marry a member of a group that most people don’t want to marry, and most individuals don’t want to say things that most people don’t want to say. Despite weak incentives to defy the cartel, though, deregulation still worked wonders. In for-profit business, on the other hand, contrarian strategies often pay, big time. The first firm that hires qualified minorities or accepts minorities’ patronage cleans up. That’s quite an incentive for defiance.

I agree with Bryan that the segregationist cartel was very vulnerable to defectors, and, indeed, once Title II was passed, segregation in public places dissipated much more quickly and with far less violence and other resistance than almost anyone anticipated at the time.

However, the vulnerability of Jim Crow segregation was precisely the reason why white southerners who supported it were so intent on preventing any deviations from it. For example, in 1902, when Jim Crow was becoming firmly established, there were two private integrated universities in the South, one in Kentucky and one in Tennesse. By 1904, both states had passed laws forcing these universities to segregate. These universities were marginal institutions that served only a small fraction of the South’s populations, yet even border-state Kentucky couldn’t tolerate this small deviation from Jim Crow segregation.

Perhaps, as Bryan suggests, a 1964 law simply banning such segregation laws would have quickly led to the demise of the Jim Crow cartel. My reading of history, though, is that significant pockets of the South would have resisted through whatever formal and informal means were available, and that Title II was therefore necessary to break the cartel.

To follow up on Ilya’s post below, it’sworth noting that the post-World War II politician of national significance probably most beloved by libertarianish types (libertarianism was not a self-conscious movement until recently) was Sen. Robert Taft of Ohio. Taft, of course, lost the Republican presidential nomination to Eisenhower in 1952. The conservatives who eventually founded National Review supported Eisenhower, because he was an enthusiastic Cold Warrior. The more libertarian types supported Taft because he wasn’t, and because he more generally was not completely at peace with the New Deal, as Eisenhower was. The split between the Eisenhower and Taft supporters led to the demise of the first major post-war conservative intellectual journal, The Freeman (which eventually continued as the house organ of the Foundation for Economic Education).

Another dividing line between Taft and Eisenhower, though it had relatively little political salience at the time, is that Taft was an enthusiastic supporter of civil rights, whereas Eisenhower was at best lukewarm. Taft’s support for civil rights was in the great tradition of northern classical liberal Republicans going back to the 1850s. One of his most enthusiastic supporters was the African-American conservative/libertarian writer, Zora Neale Hurston.

The Taft-Eisenhower battle illuminates the fact that the more libertarian-oriented conservative tradition was civil-rights friendly. The more traditionalist National Review crowd, which took over the conservative movement, was not. Yet more reason for conservatives to be more abashed about claiming that their position on civil rights makes them superior to libertarians, and, for that matter, for some of our commenters to be a bit more circumspect about reading classical liberals out of the modern civil rights movement.

In a National Review post discussing the civil rights laws of the 1960s, Roger Clegg writes that “Conservatism is superior to libertarianism because it is less ideological and more readily acknowledges that circumstances matter.” Whatever the general validity of this claim, Clegg picked a very poor example to illustrate it.

As co-blogger David Bernstein has pointed out, numerous prominent conservatives, including many associated with National Review, actively defended racial segregation throughout the 1950s and 60s. They supported Jim Crow not only on “states’ rights” grounds but also because, as a 1957 National Review editorial put it, whites were “the advanced race” and could deny the franchise to blacks in order to protect “civilization.”

By contrast, as David also notes, most leading libertarian writers of the time – including Milton Friedman and Ayn Rand – were on the other side of this issue. Rand, for example, wrote that “[t]he Southern racists’ claim of ‘states’ rights’ is a contradiction in terms: there can be no such thing as the ‘right’ of some men to violate the rights of others.” She also denounced racism as “the lowest, most crudely primitive form of collectivism.”

Many 1960s libertarians can reasonably be criticized for underemphasizing the importance of ending segregation relative to other issues. But their record on these matters was considerably better than that of most conservative intellectuals of the day. Even if you think that libertarians were wrong to be skeptical of restrictions on purely private sector discrimination, the conservatives of the time were no better. And unlike in the case of the conservatives, libertarian opposition to private sector anti-discrimination laws was motivated by general support for a right of free association, whereas most of the conservative opponents were perfectly willing to support Jim Crow laws forbidding blacks from voluntarily associating with whites.

Some of the conservative support for segregation was simply a product of the racism endemic throughout much of society at the time. It is too often forgotten that many segregationists were big government liberals on economic issues, such as George Wallace and the recently departed Bob Byrd. But some was also linked to specific weaknesses of conservatism, such as excessive deference to tradition.

Roger Clegg, today’s National Review editors, and other modern conservatives should not be blamed for the mistakes of their predecessors fifty years ago. But black civil rights is not a good issue to focus on if you want to assert that conservatism is superior to libertarianism.

On the more general question of adjustment to “circumstances,” one of the main reasons why libertarians favor strict limits on government power is precisely because the private sector has greater ability and incentive to acquire knowledge about varying local circumstances and evaluate it in a rational way. Many conservatives emphasize these points when it comes to economic regulation, but tend to forget about them when it comes to the cultural and “moral” regulation that they often favor. Everyone agrees that “circumstances matter.” The real issue is which institutions are likely to do the best job of evaluating them and making needed adjustments.

UPDATE: In an e-mail that he asked me to post, Roger Clegg writes:

My point was that, in 2010, the fact that conservatism is less ideological than libertarianism and more willing to acknowledge that circumstances matter makes it is easier for conservatives (like me, notwithstanding my libertarian streak) than libertarians (like Rand Paul, notwithstanding his later retraction) to acknowledge the need for the 1964 Civil Rights Act. I was not suggesting that conservatives in the 1960s had a better record than libertarians;indeed, my suggestion was that the good instincts that both had also led both to the wrong conclusions then.

I appreciate the clarification. It certainly narrows the differences between us. But I still don’t agree with Clegg’s position. As I pointed out in the post, conservatives in the 1960s were far more wrong on Jim Crow than libertarians, and this was for reasons related to some general shortcomings of conservatism. Most libertarians had reached the conclusion that Jim Crow laws were unjust and should be abolished, while most conservatives had not. I also don’t agree that conservatism takes better account of circumstances than libertarianism in 2010. As comments by such scholars as Richard Epstein (quoted by Clegg himself), and co-blogger David Bernstein demonstrate, few serious libertarian commentators deny the need for the Act back in 1964, and virtually none deny that it was at least far superior to the pre-1964 status quo. Even Rand Paul, in his initial statement, didn’t reject the latter. In sum, nothing about the civil rights issue – either in 1964 or in 2010 – supports Clegg’s broad general claim that “conservatism is superior to libertarianism because it is less ideological and more readily acknowledges that circumstances matter.” And the evidence from the former period actually suggests ways in which conservatism – especially in its traditionalist variant – is in fact inferior to the libertarian alternative.

Over at Cato Unbound, Jason Kuznicki, prompted by V.C. commenters, takes up Shelley v. Kraemer, the 1948 decision in which the Supreme Court held that it was unconstitutional for state courts to enforce racially restrictive covenants. I respond, concluding that Shelley was probably correct, but that the Court could have articulated a much clearer and sounder rationale for its decision.

One thing I don’t mention over there, but I’ll point out here, was that racially restrictive covenants were an imperfect substitute for the explicit racial zoning the Supreme Court invalidated in Buchanan v. Warley in 1917. The covenants worked in some neighborhoods, but overall they were too difficult and expensive to enforce to prevent an influx of African Americans to American cities. See Michael J. Klarman, From Jim Crow to Civil Rights 262 (2004); William A. Fischel, Why Judicial Reversal of Apartheid Made a Difference, 51 Vand. L. Rev. 977, 981 (1998). In some cities, whites lobbied for a segregation laws precisely because restrictive covenants had proved ineffective in restricting black settlement. So while restrictive covenants mitigated the positive effects of Buchanan for three decades, they did not completely negate them.

UPDATE: Sheldon Richman adds his thoughts.

Today’s Washington Post reports that some civil rights organizations are still trying to determine whether (or how enthusiastically) to support Elena Kagan’s nomination to the Supreme Court.  It begins:

On the eve of Elena Kagan’s Senate confirmation hearings, her record on race in the Clinton White House and at Harvard Law School is producing discomfort among some leading civil rights organizations, leaving them struggling to decide whether they want her to join the Supreme Court.

Their reservations have introduced the first substantive division among liberals in what has otherwise been a low-key partisan debate over Kagan’s merits to replace Justice John Paul Stevens. . . .

The National Bar Association, the main organization of black lawyers, has refrained from endorsing Kagan, giving her a lukewarm rating. The group’s president, Mavis T. Thompson, said it “had some qualms” about Kagan’s statements on crack-cocaine sentencing and what it regards as her inadequate emphasis while dean at Harvard Law School on diversifying the school along racial and ethnic lines. Others have expressed reservations about Kagan’s views on affirmative action, racial profiling and immigration.

Several liberal groups that are stalwarts on civil rights matters have uncharacteristically hung back, trying to persuade Democratic senators to press her on such issues during the hearings set to begin Monday. Some, including the Mexican American Legal Defense and Educational Fund, say they are still trying to glean her beliefs from fragmentary evidence. Others have parsed Kagan’s public statements and actions and said they are uneasy.

Among other things, the story reports that some groups are put off by documents released from Kagan’s time in the Clinton Administration that reveal her disagreements with Christopher Edley on racial matters, such as whether Clinton’s race initiative should have included a ban on racial profiling.

Jeffrey Miron responds to my essay, and I respond to his, Richman’s, and Kuznicki’s responses.

Sheldon Richman responds to my Cato Unbound essay here, criticizing my position as being insufficiently libertarian, although he otherwise shares many of my underlying premises.

And Jason Kuznicki responds to my essay here, supporting Title II from a Hayekian perspective, while, unlike me, expressing no noticeable qualms about the vast expansion of the antidiscrimination edifice since 1964.

In other words, I am in the unusual position of being a moderate!

I should note that when I originally posted a link to my essay, some of our liberal VC commenters responded that they were unconvinced. So let me note that my assignment was to write an essay about “how libertarians should approach antidiscrimination laws.” In other words, my primary target audience was readers who already share the basic libertarian premise of a strong presumption against government interference in private market arrangements.

I was aware that other readers would be interested in the essay as well, and tried to correct some errors and misconceptions I’ve seen in left-wing blog posts about libertarianism and antidiscrimination laws. I explained what the general libertarianism position is, how it’s been misconstrued, and why the libertarian position is not any more dogmatic than, say, the liberal position on free speech.

That said, I wouldn’t expect any statist-leaning liberal to be persuaded by my essay that the libertarian position is correct. Strong opposition to any and all forms of (at least politically incorrect) discrimination is a defining aspect of modern American liberalism, and liberals do not share libertarians’ strong presumption against government action to right perceived social wrongs. If I were to try to persuade liberals to be more libertarian, pretty much the last place I’d start would be with antidiscrimination laws, given their centrality to modern liberals’ self-conception. (And, moreover, I point out in my essay that I think that from both a moral and tactical perspective, opposition to basic private sector antidiscrimination legislation should be rather low on the libertarian priority list. I note that if there were a sudden popular move to repeal antidiscrimination legislation unaccompanied by broader libertarian political trends, it would suggest that opposition to such laws came arose from hostility to minority groups, not from opposition to Big Government.)

So, if you are a liberal reader hostile to libertarianism, feel free to read these essays to get a better sense of the range of libertarian positions on antidiscrimination laws, and the rationales for these positions. But I don’t think anyone is trying to persuade you to abandon the core of your ideology with a 2,000 word essay on a limited topic.

I’ve written an essay for Cato Unbound, which the editors have titled “Context Matters: A Better Libertarian Approach to Antidiscrimination Law.” Over the next few days, Sheldon Richman of the Foundation for Economic Education, Jason Kuznicki of Cato, and Jeff Miron of Harvard will write comments, and then we’ll have some back and forth. Should be fun, and hopefully enlightening.

All the discussion of Title II of the 1964 Civil Rights Act has obscured the fact that public accommodations laws, especially at the state and local level, have expanded way, way, beyond their original purpose of ensuring that previously excluded minorities are served in restaurants, hotels, and the like. This has happened more via aggressive judicial interpretation of the language of these laws than from the laws themselves, which were phrased to not infringe unduly on private behavior.

For example, the Boy Scouts of America v. Dale case involved the courts of New Jersey declaring that the membership policies of the Boy Scouts violated the state’s ban on discrimination in places of public accommodation. This even though the membership policies of the Boy Scouts are clearly not a “place,” the Boy Scouts of America is not an “accommodation” in the the usual sense of the word, and the membership policies of private organizations are not “public.” (Chapters 7 & 8 of my You Can’t Say That! book deal with the use and abuse of public accommodations laws. Since the book is now available used on Amazon for literally a penny, interested readers have little excuse not to buy it.)

Besides that, the decline of the principle that a business owner has at least some right to exclude what he deems undesireables has led to some very bizarre cases, none more so than the one described below, which a VC commenter alerted me to.

Here’s the story, from a VC post from 2006:

There is a German restaurant called the Alpine Village Inn, in Torrance California. A group of four neo-Nazis went there to eat, each wearing a lapel pin with a swastika on it. The management asked them to take off the lapel pins. They refused. The management asked them to leave. They refused. The management called the police, who arrested them.

Then, remarkably, the Southern California ACLU gets involved, and sues the restaurant for calling the police on the Nazis! This much I’ve confirmed from media accounts. According to the commenter who first alerted me to this story, “the defendants’ insurer eventually settled following unsuccessful pretrial challenges to the complaint, believing they could not prevail under California law!”I’m informed that the restaurant actually lost at trial, and the insurer refused to foot the bill for an appeal.

The lawsuit was brought under California’s Unruh Act, which provides that “all persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, or medical condition are entitled to the full and equal accommodations, advantages facilities, privileges, or services in all business establishments of every kind whatsoever.” The California courts have held that the protected classes delineated by the Act are not exclusive; the Act also protects arbitrary discrimination by a business establishment based on similar characteristics to the above. Apparently, the insurer thought that “political views” was sufficiently similar to “religion” that the courts would likely rule against the insured. (This was, after all, the Rose Bird Court, which issued a series of absurdly broad and illogical rulings under the Unruh Act; in one of those opinions (Isbister) Bird personally gratuitously insulted a little old lady who donated money to a Boys’ Club as one of the “select few” who wish to be “insulated from the 20th century” because the Boys’ Club didn’t admit girls.)

There are several remarkable things about this story, which occurred in 1986. First, the ACLU of Southern California represented the Nazis, yet, at least by the late 1980s, this local ACLU branch was known as a vigorous proponent of hate speech regulations. How to square that circle, I don’t know. Perhaps the organization had a sudden and dramatic leadership shift. Perhaps the local ACLU leaders saw this as “discrimination based on ideology in public accommodations” and somehow didn’t notice it was also the suppression of hate speech. Perhaps they just had their heads up their behinds.
Continue reading ‘Some Strange Consequences of Public Accommodations Laws’ »

One of the most common rationales for anti-discrimination law is that it is needed to protect unpopular minority groups against exclusion from jobs and other opportunities. This conventional wisdom has a significant weakness: If the group in question really is unpopular with the majority, a democratic government is highly unlikely to enact antidiscrimination laws protecting it. In order for such laws to be adopted, the majority of voters probably already has to believe that discrimination against that group is wrong. But if that is the view of majority opinion, then it is improbable that a legal ban on discrimination will greatly improve the status of the group. Most businesses and employers would likely adopt a nondiscrimination policy of their own accord, either because their owners agree with the majority view, or because competitive pressures force them to hire productive minority workers and serve paying minority customers even if they are personally hostile to the group in question. Or at least they will do so in the absence of the kind of government and private violence that constrained integration in the pre-1964 South.

Some, like George Will in his recent criticism of Rand Paul, argue that the Civil Rights Act of 1964 was an exception to this, and that it actually changed white public opinion, rather than followed it:

The simple fact is that in 1964, we, as a nation, repealed one widely-exercised right – the right of private property owners to serve on public accommodations whom they want – and replaced it with another right, that is the right of the entire American public to use public accommodations,” Will said.

“We were correct to do so and in the process, we refuted an old notion: that you cannot – and this may offend some libertarians – the notion was you cannot legislate morality. Yes you can,” Will said. “We did.”

“We not only got African-Americans into public accommodations, we changed the thinking of the white portion of the country as well,” he explained.

I. The Civil Rights Act Followed Majority White Public Opinion.

The truth is almost the reverse of Will’s statement. The Civil Rights Act was enacted in 1964 because “the thinking of the white portion of the country” had already changed over the previous 20-30 years. As Howard Schuman and his coauthors document in their comprehensive book Racial Attitudes in America, there was an enormous liberalization in white opinion on race from the 1940s to the 1960s. By 1963, one year before the enactment of the Civil Rights Act, 85% of whites polled in a National Opinion Research Center survey endorsed the view that “Negroes should have as good a chance to get any kind of job” and rejected the position that “white people should have the first chance at any kind of job” (endorsed by only 15%). This contrasts with 55% who said that “white people should have the first chance” on the same question in 1942 and 51% who said so in 1944.

Similarly, 73% of whites questioned in a 1963 NORC poll embraced the view that “Negroes should have the right to use the same parks, restaurants, and hotels, as white people.” The same 1963 study also showed that 79% of whites rejected the idea that transportation in streetcars and buses should be segregated, compared to 54% who had endorsed it in 1942 (both the 1942 and 1963 questions used the same wording). The 1963 figures probably overstate the actual degree of white support for integration and equal opportunity. But it’s hard to avoid the conclusion that white opinion had moved strongly in an integrationist direction relative to previous years, and that discrimination against blacks in employment and public accommodations was opposed by a majority of white voters by 1964.

Schuman and his coauthors show that white racial attitudes continued to move in a more liberal direction after 1964. But the enactment of the Civil Rights Act does not seem to have accelerated the pace of change.

None of this means that the Civil Rights Act was insignificant. Although national white opinion was generally favorable to integration by 1964, southern whites were still much more hostile. Moreover, southern businesses that wanted to employ black workers on an equal basis with whites and/or serve black customers in an integrated setting were often prevented from doing so by state law and government and private violence. On these fronts, the Act really did make a major positive difference. The South probably would not have desegregated anywhere near as fast without it.

II. Activist Government and Unpopular Minorities.

Nonetheless, the relationship between white public opinion and the Civil Rights Act does reinforce the point that a democratic government is unlikely to enact strong antidiscrimination laws to protect a group unless and until the majority of voters comes to oppose discrimination against it. It also underscores David Bernstein’s point that activist government is not in the interest of genuinely unpopular minority groups, as blacks were prior to the 1950s and Jews for much of American and European history.

When blacks were still despised by a majority of whites, both state and federal governments enacted numerous laws that not only permitted anti-black discrimination, but actually required it.

One might say that such laws don’t really make much difference, since the private sector would discriminate against unpopular minorities on its own. However, majority opinion is rarely monolithic. Jim Crow laws were enacted in large part because some whites were still willing to hire blacks on an equal basis with whites and run integrated public accommodations – either because they were more tolerant than the majority, or because they prioritized profit above prejudice. For example, nineteenth century southern streetcar companies preferred to operate integrated facilities and opposed Jim Crow laws, because they feared that segregation would reduce their profits. Similarly, as Robert Higgs documents, post-Reconstruction southern landowners found that they could not get away with paying black sharecroppers much lower wages than white ones without supportive government intervention that prevented them from competing up the wages of the blacks.

Given a high level of societal prejudice against a group, activist government often ensures that the level of exclusion and discrimination against the group is much greater than it would be otherwise. Bernstein and I discuss this point in detail in this article (esp. pp. 602-12).

In sum, antidiscrimination law can impose majority opposition to discrimination on a recalcitrant region such as the South in the 1960s. But it is unlikely to provide much protection for genuinely unpopular groups (“unpopular” in the sense that the majority of the voting population is hostile to them). Indeed, activist government is more likely to worsen the condition of such groups than improve it.

I want to analyze two positions that I’ve seen liberals take on the role of government in promoting civil rights and antidiscrimination norms.

One position is as follows:

We liberals believe in government activism to solve important social problems, and the 1964 Civil Rights Act was an important example of where this philosophy had extremely good consequences. Therefore, when it comes to the “Second Reconstruction,” liberalism proved its worth over the competing ideologies of conservatism, which focused myopically on state sovereignty, and libertarianism, which had no clue how to deal with the legacy of Jim Crow oppression.

Obviously, not everyone is going to agree with this formulation, but it’s not unreasonable.

A second position is as follows:

We liberals believe in government activism to solve important social problems, and the 1964 Civil Rights Act was an important example of where this philosophy had extremely good consequences. Therefore, activist government is generally good for minorities, and the competing ideologies of conservatism and libertarianism are hostile to the rights and interests of minorities, because those ideologies are hostile to activist government.

This doesn’t follow at all. As a matter of American history, activist government was often used to oppress minority groups. As a matter of world history, the record of “activist government” with regard to minorities is even worse. And as a matter of political theory, it’s not at all clear why one would expect public policy in a democracy to necessarily be helpful to minority groups.

I’ve never seen a formal academic model of this, but it seems fairly obviously to me that if a minority group is thoroughly despised by the majority, activist government will almost certainly reinforce societal discrimination. On the other hand, if the minority group has a reasonable and growing level of sympathy/empathy from the majority, activist government will likely reinforce egalitarian ideals.

This, precisely, is the difference between U.S. government public policy with regard to race circa, say, the 1930s—when Congress could pass the overtly racist Davis-Bacon Act with the goal of excluding blacks from public works projects, Sen. Wagner was willing to remove an antidiscrimination provision from the Wagner Act to placate the AFL, which wanted to use its new power to exclude blacks, FDR was unwilling to support anti-lynching legislation, and so on (more examples can be found in my Only One Place of Redress book)—and 1964, when a significant majority of the white public supported Brown v. Board of Education, opposed racial discrimination in employment, and so on. And it helped that African Americans themselves had a lot more national voting power in 1964 than in 1930.

In short, in a democracy, government policy will tend to reinforce public sentiment. If the weighted public sentiment (including the strong preferences of the minority group itself, the strong preferences of non-minority egalitarians, and the strong preferences of majority ethnic supremacists) is tolerant of minority groups, public policy will reflect that tolerance. If weighted public opinion is intolerant, public policy will reflect that intolerance. “Activist government,” per se, however, is neither friend nor foe to minority groups, and, even within the same country in relatively short period of time, the policies of activist government toward minorities can vary greatly with the whims of public opinion. (And public opinion does not move inevitably in a more tolerant direction; public opinion became more hostile to African Americans in the U.S. between the 1880s and 1920s, and public opinion became more hostile to Jews in various European countries in the decades leading up to WWII).

FWIW, as a Jew (and recognize that other Jews will disagree), behind the veil of ignorance not knowing in which country and under what circumstances I’d find myself, I’d much rather take my chances with a society inclined toward libertarianism than with a society inclined toward activist government.

Let’s say a liberal and a libertarian are having drinks at a bar, and discussing public policy. The liberal asks the libertarian what he thinks of anti-discrimination laws that apply to private parties. The libertarian says that he wants to put the issue of race to one side, because of its special history in the U.S., but is happy to discuss his views on antidiscrimination laws that apply to groups aside from racial minorities. [Update: Some liberal commenters object to this exclusion. But given that the liberal position on affirmative action preferences for racial minorities is typically based on the same premise, that the history of race in the U.S. is a special case that could warrant a deviation from otherwise sound principles, I doubt they really want to emphasize this objection.] The liberal agrees.

The libertarian then says that he opposes antidiscrimination laws that apply to private parties. First off, he explains, he has a generally extremely strong presumption against the government exercising authority over private activities, for both philosophical and practical reasons. Second, he adds, he believes that the government does not have a sufficiently compelling interest in banning discrimination against various groups to overcome that presumption. Third, even if he was tempted to think that if the government had such an interest with regard to some of the groups at issue, the way government works means that more and more groups will demand protection, and the laws will expand to more and more contexts where discrimination might take place, until the net social costs of enforcing discrimination laws will dwarf their benefits. Finally, he adds, he thinks that moral suasion, education, boycotts, and the like, are the best way to deal with most types of discrimination.

The liberal, not used to hearing the libertarian position on such issues, is shocked. “You are immoral!” he yells, well over the din at the bar. “Don’t you know that discrimination is WRONG! It’s EVIL. No decent person, regardless of their background assumptions about government, could possibly question the propriety of most anti-discrimination laws that apply to private parties! What about the Jews who were denied access to universities, certain neighborhoods, entire industry groups! What about women like Sandra Day O’Connor who couldn’t get a job out of law school despite graduating third in her class at Stanford?”

The libertarian responds, “yes, those were all bad things, and I’m not enough of a history buff to know exactly what extent they were eliminated by law and to what extent changing social mores led to positive social change outside law. But surely we can agree that in the absence of these laws today, such blatant discrimination is not likely to recur on anything resembling a widespread basis.”

The liberal, astonished by the libertarian’s blockheadedness, retorts, “but don’t you understand? Discrimination is just wrong! Society simply can’t permit discrimination to continue, and even today, with the civil rights laws we have, discrimination is not as rare as you seem to think!”

The libertarian thinks for a moment, takes a few sips of his beer, and asks, “then why not have the death penalty for discrimination?”

“Huh?,” says the liberal.

“We both agree that private discrimination is bad,” the libertarian continues,” and “my position is that I think the costs and dangers of making it illegal are not worth the benefits, especially given my background presumptions. I can see your argument that I am wrong about either my presumptions or how I weigh the costs and benefits of anti-discrimination laws, but I’m surprised to see that you are also offended that I would even apply a cost-benefit analysis to discrimination laws, because, you suggest, discrimination is so inherently evil, and it must be wiped out. Yet, under the current system, the worst thing that happens to a perpetrator of discrimination is that he suffers a monetary loss, and that’s only if he’s caught. So shouldn’t we, by your logic, simply execute anyone who’s caught discriminating, to provide much greater deterrence?”

“Of course not,” says the liberal. “I have an extremely strong presumption against the government exercising power over life and death. While I find discrimination abhorrent, I don’t think discrimination is nearly serious enough to overcome that presumption. Plus, even if I could be persuaded otherwise, at least with regard to some particularly egregious types of discrimination, if we allow the government to execute people for discriminating, demand will grow for the death penalty in all sorts of other contexts, and the social costs of having the death penalty for discrimination will outweigh the social benefits. I know that keeping the system of civil penalties instead of draconian criminal punishments will allow some discrimination to continue, but at some point, we just have to rely on moral suasion, education, boycotts, and the like.”

And with that, the libertarian and the liberal agreed to disagree about antidiscrimination laws, and became best friends and drinking buddies.

The end.

One thing that’s been especially appalling about the Rand Paul controversy is how quick many liberal commentators (including people who frequent the comments section on this blog), have been to accuse not just Paul of racism, but also anyone who takes the libertarian position on antidiscrimination laws, i.e.., that the government itself may not discriminate, but the government should tolerate private discrimination. Admittedly, someone who takes the libertarian position on this but no other issues, as many did in the South in the early ’60s, is suspect. But if someone takes a consistent libertarian position on public policy controversies, i.e., that the government should limit itself to banning force and fraud and otherwise not interfere with private behavior, it’s hardly an indication of racial animus to take the exact same position with regard to discrimination. (And, needless to say(?), in 2010 antidiscrimination laws do not primarily deal with race in any event [think age, sex, disability, sexual orientation, religion, and so on]. Moreover, the libertarian position is actually helpful to advocates of affirmative action in the private sector, which is the most “live” current issue in antidiscrimination law with regard to race).

That, however, is not why the liberal charge of racism is so appalling. Rather, [as some VC commenters have pointed out], it’s because this is the exact same kind of dishonest, malicious rhetoric that liberals face from conservatives when they take principled positions on issues of importance to them. Consider the liberal defense of Communists’ free speech and employment rights in the 1950s; their critics accused them of being Communist sympathizers, if not outright Communists. When the ACLU defended the Nazis’ right march in Skokie in the 1970s, their critics accused them of giving aid and comfort to Naziism. When liberals defend the right to abortion, they are accused, among other things, of wanting to reduce the population of minority babies. And when liberals stand up for the due process rights of terrorism suspects, they are accused of being American-hating jihadist sympathizers.

One might think that liberals are/were wrong on one or all of these controversies, and criticize them for being wrong. But the criticism they faced, and face, for taking unpopular, principled positions that their critics thought/think had/have very negative social consequences was/is grossly unfair and repugnant. You would think, incorrectly, that liberals wouldn’t pull the same c*** on libertarians.

UPDATE: I should hasten to add that I’m not claiming that all liberals, or even most liberals, have or would accuse libertarians of racism for taking the libertarian position on discrimination laws. I have seen enough examples, though, to think it’s worth commenting upon.

Read David Bernstein’s excellent blog post. Unfortunately, because the title of David’s post referred to Bruce Bartlett and not Rand Paul, some seeking a “libertarian” take on this issue may overlook his analysis. To David’s libertarian analysis I would add the following considerations pertaining to the original meaning of the Constitution:

(1) The problem of Jim Crow in the South was a direct product of slavery–indeed it was a deliberate and concerted effort by Southerners to reimpose slavery in everything but name. Slavery was a private as well as a public institution, which is why the Thirteenth Amendment was not limited to state action. As such, even private conduct that amounted to “badges and incidents” of slavery should have been reachable by Section 2 of the Thirteenth Amendment, which empowered Congress to make laws to put that provision into effect. It was under Section 2 that Republicans in Congress passed the first Civil Rights Act of 1866, and the Freedman’s Bureau Act. Whether or not these acts were truly within the original meaning of the Thirteenth Amendment is, of course, a matter of dispute. I think the better analysis of the Thirteenth Amendment was explained by Justice Harlan in his dissenting opinions in the Civil Rights Cases and Plessy v. Ferguson. The opposing view that limited the reach of the Thirteenth Amendment was articulated by President Andrew Johnson — a “War Democrat” — when he vetoed the Civil Rights Act in his highly racist veto message. Because Johnson’s reading of the Thirteenth Amendment has largely prevailed among legal scholars of all stripes, Section 2 of the Thirteenth Amendment is generally overlooked in debates concerning the scope of Congressional power over “private” conduct.

(2) As David mentioned, the South systematically denied free blacks, and whites who wished to deal with them on an equal footing, the (equal) protection of the law. During Reconstruction, Republicans in Congress tried to respond to this with a series of civil rights measures–including measures reaching public accommodations–that were struck down by the Supreme Court. Thereafter, “private” discrimination that existed in public accommodations was enforced by private terrorism from which no one was safe–most particularly no one who owned a business with a fixed location. In the end, (to paraphrase Justice Holmes’s infamous aphorism) 100 years of legal apartheid was enough! — as was 100 years of private violence aimed at blacks and anyone who associated with them publicly. The back of this egregious system of subordination and terrorism needed to be broken — thanks to the leadership of Democratic President Lyndon Johnson and Northern liberal Democrats, with the crucial support of congressional Republicans like Senator Everett Dirkson, and over the vociferous objection of Southern Democrats. Whether or not courts could rectify this system, I believe that Congress was well within its Section 5 powers under the Fourteenth Amendment to compensate for the deeply entrenched lack of equal protection by desegregating all public accommodations. The pity is that, out of respect for its Reconstruction-era precedent, the Supreme Court chose to uphold it as an exercise of its Commerce Clause power rather than either Section 5 or Section 2 of the Thirteenth, although we forget that some of the Warren Court justices protested that Section 5 was the better the basis for the decision.

(3) For these reasons (and others), in addition to those given by David, the prohibition on racial discrimination in public accommodations was amply justified by the original meaning of the Thirteenth and Fourteenth Amendments. But if that is not the case, in light of the fact that slavery was held to be sanctioned by the original Constitution for 80 years (over the objection of abolitionist constitutionalists), and the subordination of blacks continued for another 100 years after the formal abolition of slavery, if any deviation from original meaning is ever justified, it would be justified in interpreting Section 2 of the Thirteenth Amendment, and Section 5 of the Fourteenth Amendment, to reach the racial discrimination banned by the Civil Rights Act of 1964.

There is much more to be said about this than can be said in 2 blog posts. On the one hand, the evidence of original meaning of the Thirteenth and Fourteenth Amendment is complicated. On the other hand, at least some of the academic resistance to these originalist claims stem from a desire to discredit originalism (and libertarianism) on this issue, so it will be delegitimated on other issues having nothing to do with discrimination. Because I am now immersed in grading exams to which I need to return I cannot say any more now. But I am grateful to David for getting the ball rolling, and I wanted to make sure that readers interested in the Rand Paul controversy found David’s post, and might also consider these additional points concerning the original meaning of the Thirteenth and Fourteenth Amendments.

Bruce Bartlett, an economist whose work I’ve enjoyed reading over the years, and author of a book on the history of the Democratic Party and race, uses the occasion of Rand Paul’s controversial remarks about the Civil Rights Act of 1964 to launch a weirdly ahistorical attack on libertarianism:

As we know from history, the free market did not lead to a breakdown of segregation. Indeed, it got much worse, not just because it was enforced by law but because it was mandated by self-reinforcing societal pressure. Any store owner in the South who chose to serve blacks would certainly have lost far more business among whites than he gained. There is no reason to believe that this system wouldn’t have perpetuated itself absent outside pressure for change.

In short, 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.

Many of the specific factual claims Bartlett makes above are false, but instead of nitpicking those (e.g., African-Americans’ standard of living kept rising after Reconstruction) let’s start with first principles. The basic libertarian position on civil rights is as follows: (1) Private discrimination should, in general, be legal (this includes affirmative action preferences, btw). Many libertarians would make exceptions for cases of monopoly power, and most would ban private discrimination when the government itself ensured the monopoly by law, as with common carriers like trains; (2) The government may not discriminate. If necessary, the federal government should step in to prevent state and local governments from discriminating; (3) The government may not force private parties to discriminate, and the federal government should, if necessary, step in to prevent state and local governments from forcing private parties to discriminate; (4) The government must protect members of minority groups and those who seek to associate with them from private violence. If the state and local government won’t do so, the federal government should step in; and (5) As part of the ban on government discrimination, and to prevent rent-seeking voters from taking advantage of the disenfranchised, members of all racial groups should be treated as individuals for voting purposes, and thus members of all groups should have equal voting rights. If state and local governments don’t guarantee such rights, the federal government should step in.

I don’t think any of these propositions–freedom of contract/association, equality under the law, protection from private violence, nondiscrimination in the allocation of voting rights–are controversial among professed libertarians. Some libertarians may have federalism concerns about the federal role in all this, but federalism, as such, is not a “libertarian” concern.

So let’s compare the libertarian position to what the Supreme Court held in the 1880s, 1890s, and 1900s, and, more generally, to the situation in the Jim Crow South.

(1) The Supreme Court did hold that the federal government could not prohibit private, voluntary discrimination. Some, but not all libertarians, would argue that the Court went too far in allowing discrimination even in common carriers and other monopolies. On that score, the Supreme Court was, say, mostly libertarian. But the Court fails the libertarian test by every other measure, to wit: (2) The Court allowed state and local governments to discriminate with impunity, as with its endorsement of the constitutionality of separate and unequal public schools. The Supreme Court also upheld less well-known examples of discriminatory legislation, such as emigrant agent laws; (3) The Court upheld state and local segregation laws that applied to private parties, most famously the law in Plessy (opposed by the private train company, btw), including even laws that required segregation on interstate trains that traveled to the North; (4) The Court effectively banned the federal government from combating racist violence. (5) The Court failed to protect African-American voting rights.

In short, the idea that the Supreme Court had a “libertarian philosophy” with regard to race that “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,” is just completely absurd. If there is anything in post-Civil War, pre-New Deal American history that was NOT libertarian, it was how African Americans were treated in the South after Reconstruction.

Admittedly, even if the Court had held otherwise, the political climate was such in the late 19th and early 20th century that it’s unlikely that the outcome for African Americans would have been that much different, because the the political branches needed to take the lead to accomplish anything in practice. But I find it bizarre that Bartlett considers a Court that was essentially “localist” on civil rights issues–keep all three branches of the federal government out of state and local business–to be “libertarian.” As noted above, the Court adhered to the clear libertarian position on less than one out of five criteria, and the “less than one” is almost certainly the least important criteria historically.

Now consider some specific points Bartlett makes about the Jim Crow South: “Any store owner in the South who chose to serve blacks would certainly have lost far more business among whites than he gained. There is no reason to believe that this system wouldn’t have perpetuated itself absent outside pressure for change.” Nonsense. Store owners, employers, et al., had to worry not just about losing business from whites if they treat blacks fairly, but also about private violence and harassment from government officials. Cotton mills that tried to hire blacks, for example, were routinely “whitecapped” into submission. Certainly, there would have been a great deal of segregation and discrimination even without violence and official and unofficial government harassment. But the pervasiveness of segregation, discrimination, and exclusion in the South surely was related to violence and harassment.

Meanwhile, the Supreme Court did, in fact, adhere to a “libertarian philosophy” in one race case, Buchanan v. Warley in 1917, one of the most important, and least appreciated, cases of the early 20th century. In the process of invalidated a residential segregation ordinance, the Court held that racist views and fears of racial unrest could not justify depriving African Americans of their constitutional rights, a principle that came to fruition in Brown. Anti-libertarian Progressives fulminated fruitlessly against Buchanan.

Speaking of Brown, the weirdest part of Bartlett’s essay is that he unfavorably compares the libertarian position to the constitutionalist opposition to federal civil rights laws from the likes of Barry Goldwater and William Rehnquist. Rehnquist, let’s recall, wrote an infamous memo to Justice Robert Jackson in 1953 arguing that the Court should uphold the school segregation laws at issue in Brown, Continue reading ‘Bruce Bartlett’s Attack on Libertarianism’ »

I interviewed Brown University history professor James T. Patterson about his book examining the tragic rise of illegitimacy rates, and the American political elite’s refusal to address the problem for decades. MP3, 50 minutes. During the course of our discussion, I mentioned my own writing about successful early intervention programs for at-risk children; that writing is contained in this Barry Law Review article, text at notes 214-28. (A much more detailed analysis is contained in my book Guns: Who Should Have Them?).

One of the fun, albeit somewhat disheartening, things about having written a book about the encroachment of antidiscrimination laws on all aspects of civil society is watching hypotheticals your critics dismissed as “absurd” or “ridiculous hyperbole” turn into real cases. For example, while the Boy Scouts of America were sued for refusing to allow homosexual scoutmasters, what if a gay group was sued for discriminating against bisexuals? Shouldn’t organizations for gays and lesbians have the right to determine their membership policies? Come on, Professor Bernstein, enough with the ridiculous hyperbole!

A few weeks ago, I linked to a picture of civil rights activist John Salter being attacked by a mob during a lunch counter sit-in during the 1960s. I also linked to a newspaper op-ed in which Salter explained how he and other civil rights workers used firearms for protection from Klansmen and other terrorists—when Klansmen knew that a homicide would not be witnessed by the news media. Since that blog post drew great interest from the readers, I thought that some persons might be interested in the longer version of Salter’s history of the role of armed self-defense in the Civil Rights Movement.

The longer version is John R. Salter, Jr., “Social Justice  Community Organizing and the Necessity for Protective Firearms,” which is chapter 2 of The Gun Culture and Its Enemies , pp. 19-23 (William R. Tonso, editor, Merril Press,  1990.) (Merril Press is the press for the Second Amendment Foundation.) The chapter was first published as an article by Salter in Against the Current, July/August 1988. The magazine describes itself as an “analytical journal for the broad revolutionary left.” Since neither version is available on-line, I will provide a summary. Continue reading ‘The story of the armed community organizers’ »

Over at The Faculty Lounge, there are some pictures of sit-ins from the early 1960s.  Regarding a 1963 sit-in in Jackson, Mississippi, TFL writes: “By one account, members of the all-White Jackson police force stood guard outside, while several FBI agents (the guys in back wearing shades) ‘observed’ from inside. That White guy at the counter, that’s Tougaloo professor and community activist Hunter Gray (John R. Salter) who helped organize the Jackson sit-ins.  And that’s blood on his shirt.  All of the protesters had been covered in slop, and some were beaten with brass knuckles and broken bottles.”

The non-violent Civil Rights protesters allowed themselves to be beaten in public while the media watched; the images helped win sympathy for the Civil Rights Movement in the North, and proved to be crucial in developing the political will for the passage of the Civil Rights Act of 1964.

In a limited sense, the media’s presence provided some protection for the protesters; there was never a case in which a civil rights protester was murdered in front of media cameras. At night, when everyone had gone home, things were very different. As Salter later explained:

I was beaten and arrested many times and hospitalized twice. This happened to many, many people in the movement. No one knows what kind of massive racist retaliation would have been directed against grassroots black people had the black community not had a healthy measure of firearms within it.

When the campus of Tougaloo College was fired on by KKK-type racial night-riders, my home was shot up and a bullet missed my infant daughter by inches. We received no help from the Justice Department and we guarded our campus — faculty and students together — on that and subsequent occasions. We let this be known. The racist attacks slackened considerably. Night-riders are cowardly people — in any time and place — and they take advantage of fear and weakness.

Later, I worked for years in the Deep South as a full-time civil rights organizer. Like a martyred friend of mine, NAACP staffer Medgar W. Evers, I, too, was on many Klan death lists and I, too, traveled armed: a .38 special Smith and Wesson revolver and a 44/40 Winchester carbine.

The knowledge that I had these weapons and was willing to use them kept enemies at bay. Years later, in a changed Mississippi, this was confirmed by a former prominent leader of the White Knights of the KKK when we had an interesting dinner together at Jackson.

In the 1970s, I was Southside director of the large, privately-funded Chicago Commons Association. Our primary focus involved assisting minority people in developing sensible community organizations — vis-a-vis schools, city services, anti-crime.

We were opposed by white racist organizations (e.g., Nazi Party) and various youth gangs of many sorts. My staff and I received countless death threats, there were arson attacks on our offices, and, on one occasion, men with weapons came to my home and told my wife and children that they intended to kill me. (I happened to be at work.)

Again, I was glad I had many firearms and, again, we guarded our home and let this be known. We responded to hate calls on the telephone by telling the callers we were quite prepared for them.

For Salter, the right to own a handgun was apparently a crucial part of his ability to exercise his right to defend himself and his family, which was a sine qua non of his ability to stay alive in order to exercise his First Amendment rights to advocate for enforcement of the Fourteenth Amendment.

Yet in modern Chicago, decent law-abiding citizens are forbidden to own handguns. As I detailed in my amicus brief  in McDonald v. Chicago (pages 39-45), many people find that a handgun is best choice for family defense, especially in urban areas such as Chicago. As the history of the Civil Rights Movement demonstrates, the denial of the constitutional right to own a handgun could endanger other constitutional rights, particularly the rights of community organizers.

“In the urban industrial society of today a general right to bear efficient arms so as to be enabled to resist oppression by the government would mean that gangs could exercise an extra-legal rule which would defeat the whole Bill of Rights.” Roscoe Pound, The Development of Constitutional Guarantees of Liberty 91 (1957).

Although Pound prided himself on being in touch with current realities, he was already being be proven wrong by the facts on the ground. The possession of efficient arms by civil rights workers (including Condoleezza Rice’s father, a Methodist minister) and of groups like the Deacons for Defense was essential to the success of the Second Reconstruction. A key reason why the Second Reconstruction succeeded and the First Reconstruction failed was that the second time, the defenders of the Constitution had sufficient arms to resist attacks by the Ku Klux Klan and other state-supported terrorist organizations.

Arms possession by the civil rights advocates in the late 1950s and 1960s did not lead to lawless gang rule. It led to the restoration of the rule of law in the South, to the long-delayed enforcement of the Fourteenth and Fifteenth Amendments.

Although Pound was sometimes cited by opponents of the Standard Model of the Second Amendment, Pound’s point was not really that the Standard Model is wrong as a matter of original intent/meaning, but simply that the Second Amendment is no longer a good idea as a matter of public policy. Pound’s view that the Second Amendment could be ignored if modern persons thought it was no longer a good idea is consistent with his general view that legislation which once would have been clearly unconstitutional could be considered constitutional in modern times, based on perceptions of changed social needs. See generally Roscoe Pound, “Mechanical Jurisprudence,” 8 Colum. L. Rev. 605 (1908). 

As David Bernstein has explained, Pound argued on a broad front that judges should ignore the text and original meaning of the Constitution, so as not to impede (supposedly) beneficial expansions of government power to restrict personal freedom. Pound was no friend of the Constitution.

Today marks the fiftieth anniversary of the student sit-in at a Woolworth’s lunch counter in Greensboro, N.C.  This was the first of what would become a broad movement of sit-in protests as literally thousands of African-American students sat at lunch counters across the South, refusing to leave until they were served.  These protests are often credited with reinvigorating the civil rights movement and accelerating the demise of Jim Crow.  How Appealing has a round up of links.

Last week, when I posted a link to my new article, Whence Comes Section One? The Abolitionist Origins of the Fourteenth Amendment, I received several messages telling me that SSRN was inaccessible. Presumably, it is working now, so if you were unable to download it, you should try again. Here is the link, and here is the abstract:

The contribution of abolitionist constitutionalism to the original public meaning of Section One of the Fourteenth Amendment was long obscured by a revisionist history that marginalized abolitionism, the “radical” Republicans, and their effort to establish democracy over Southern terrorism during Reconstruction. As a result, more Americans know about “carpetbaggers” than they do the framers of the Fourteenth Amendment. Although this cloud began to lift with the work of Jacobus tenBroek, Eric Foner, and William Wiecek, knowledge of abolitionist constitutionalism among constitutional scholars was all but snuffed out by the dismissive writings of William Nelson and Robert Cover.

This study provides important evidence of the original public meaning of Section One. All the components of Section One were employed by a wide variety abolitionist lawyers and activists throughout the North. To advance their case against slavery, they needed to appeal to the then-extant public meaning of the terms already in the Constitution. Moreover, their widely-circulated invocations of national citizenship, privileges and immunities, the due process of law, and equal protection made their own contribution to the public meaning in 1866 of the language that became Section One.

The more one reads these forgotten abolitionist writings, the better their arguments look when compared with the opinions of the antebellum Supreme Court. But even if the Taney Court was right and the abolitionists wrong about the original meaning of the Constitution, the Thirteenth and Fourteenth Amendments were enacted to reverse the Court’s rulings. To appreciate fully the public meaning of these Amendments, therefore, we need to know whence they came.