I’ve recently reread Plessy v. Ferguson, and I was struck by some very libertarian language in the opinion that is almost always edited out of it by casebook editors:
It was said in argument that the statute of Louisiana does not discriminate against either race, but prescribes a rule applicable alike to white and colored citizens. But this argument does not meet the difficulty. Every one knows that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons. Railroad corporations of Louisiana did not make discrimination among whites in the matter of commodation for travelers. The thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while traveling in railroad passenger coaches. No one would be so wanting in candor as to assert the contrary. The fundamental objection, therefore, to the statute, is that it interferes with the personal freedom of citizens. ‘Personal liberty,’ it has been well said, ‘consists in the power of locomotion, of changing situation, or removing one’s person to whatsoever places one’s own inclination may direct, without imprisonment or restraint, unless by due course of law.’ If a white man and a black man choose to occupy the same public conveyance on a public highway, it is their right to do so; and no government, proceeding alone on grounds of race, can prevent it without infringing the personal liberty of each.Thus, while Harlan was very eloquent in his denunciation of the racist aspects the train segregation law at issue in Plessy, he was well aware that segregation was imposed by the state, contrary to market forces, on unwilling blacks, some unwilling whites, a larger number of indifferent whites, and, for that matter, an unwilling train company. Indeed, Harlan thought that it was the law’s infringement on personal liberty that was its fundamental constitutional flaw.
Modern liberal scholars have been tempted to portray Harlan as an earlier incarnation of Earl Warren or William Brennan, implicitly on the theory that race liberals are always and must always have been liberals on all other issues. Harlan, it should be noted, was not always liberal on race–he was virulently anti-Chinese. But his jurisprudence does not fit well into modern liberal-conservative categories. He was a liberal on civil rights, a nationalist on economic issues, including the scope of the commerce clause, a strong believer in, and proponent of, natural rights theory, a moderate supporter of liberty of contract (Adair v. United States), and a sufficiently strong opponent of “class legislation” that he actually wrote an opinion invalidated an anti-railroad law that drew a dissent from the most libertarian Justice on the Court, David Brewer (Atchison, T. & S. F. R. Co. v. Matthews, 174 U.S. 96 (1899).)
In any event, it’s worth noting for much of American history, it’s hard to find a strong correlation between racial views and views on statism versus libertarianism. The Supreme Court itself provides handy examples. The two strongest libertarians on the Court around the turn of the century, Brewer and Peckham, were also the most sympathetic to the Chinese, and Brewer, for his day, was also reasonably sympathetic with African Americans, especially in his private life. Holmes, who claimed to like laissez-faire but almost always voted for statism, had an appalling record on civil rights issues. But then again, Justice James McReynolds, a southerner and one of the leaders of the Court’s libertarian wing in the 1920s and 30s, was a horrible racist and anti-Semite. On the other hand, McReynolds wrote an opinion protecting the rights of Japanese parents in Hawaii to teach their children in Japanese language schools. And so on.
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