The law perverted! And the police powers of the state perverted along with it! The law, I say, not only turned from its proper purpose but made to follow an entirely contrary purpose! The law become the weapon of every kind of greed! Instead of checking crime, the law itself guilty of the evils it is supposed to punish! - Frederic Bastiat, The Law
Since 1976, the month of February has been promoted as Black History Month in the United States as an attempt to highlight the contributions and experiences of black Americans, long oppressed and exploited in American history. With the development of the “new school” of history in the 1960s, scholars began to explore the different perspectives of minority and subaltern groups in the retelling of the American narrative; the national month-long focus in February is one outgrowth of this new approach. While much work has been done in this field to reconstruct a forgotten history, libertarians by and large have not lent their voices to the dialogue. The libertarian focus on the primacy of the individual tends to obscure our view to collectivist constructions like race, but I would contend that in the discourse on black history this has been a shortfall of libertarianism historically and represents a fruitful area for the development and further refinement of libertarian ideas. Writing at his blog Austro-Athenian Empire, Roderick Long notes that black studies:
“…much like libertarian studies, tend[s] to be enormously insightful in some areas and vastly ignorant in others. (Indeed, much of the knowledge generated by libertarian studies tends to lie in…black studies’ zone of ignorance, just as much of the knowledge generated by…black studies tends to lie in libertarianism’s zone of ignorance.)”
Both black studies and libertarian studies have complementary areas that would be better served by an integrated approach, and I have written this article to take up the implicit challenge in Dr. Long’s words. For libertarians, Black History Month represents an exciting opportunity to bring the liberty message to a wider audience, and show the universal application of our ideas. One such area of integration is critical race theory.
Critical race theory is an academic discipline that focuses on the intersection of race, law, and power. Seeking to explain America’s illiberal racial history, CRT critiques the legal and justice systems, showing how the law has been used to define racial class and deny individual rights, thus institutionalizing racism. Critical race theorist Cornel West writes that “critical race theory compels us to confront critically the most explosive issue in American civilization: the historical centrality and complicity of law in upholding white supremacy.” The related field of whiteness studies goes one step further, arguing that the law created a racial distinction between individuals, and this racial division formed the basis for differential treatment; this variance in the law imbued whiteness with value, while denigrating the individuality of any American who was not white. Therefore, to be white functionally meant that the law respected your right to liberty, free speech, free movement, free association, due process, and property rights. In essence, the law recognized you as a fully-functioning, full responsible and autonomous human.
Indeed, whiteness as a social construct itself became the highest form of property, with a right to exclude, and the full power of the law ready to defend against any attempts at trespass by non-white Americans. Whiteness studies scholar Cheryl Harris notes that, “in ways so embedded that it is rarely apparent, the set of assumptions, privileges, and benefits that accompany the status of being white have become a valuable asset…whites have come to expect and rely on these benefits, and over time these expectations have been affirmed, legitimated, and protected by the law”—an exclusive privilege. When one considers the long history of blacks in America, legal inequality and oppression are inescapable realities that cannot be avoided. In fact, this inequitable treatment of individuals under the law remains the greatest blight to America’s promise as a liberal republic founded upon the contention that “all men are created equal” with inalienable rights.
As I have previously tried to stress on this blog, the history of American racism is inextricably linked with the power of the state. Certainly, this is most clearly demonstrated by black chattel slavery, a system that was wholly contingent upon legal coercion and tied to race. The 1857 Dred Scott decision confidently declared the sad truth that at the time of the American founding, blacks were “regarded as beings of an inferior order” with “no rights which the white man was bound to respect.” But even after emancipation following the Civil War, legal subjugation continued. In 1865, every single former Confederate state converted their slave codes into black codes which served the same end—social control through police powers that restricted black human rights and civil liberties. While the Union occupation of Reconstruction temporarily brought an end to these laws, Jim Crow quickly filled the void beginning in 1876. The end of the 19th century witnessed violence and terror increase against blacks who had no lawful recourse. Lynching scholar Ida B. Wells wrote in 1900 that “for all kinds of offenses—and, for no offenses…men and women are put to death without complaint under oath, without trial by jury, without opportunity to make defense, and without right of appeal.” Black intellectual W.E.B. Du Bois lamented “the slave went free; stood a brief moment in the sun; then moved back again toward slavery.”
The Supreme Court Case case Plessy v. Fergusson decided in 1896 etched the idea of “separate but equal” into law, giving federal legal legitimacy to Jim Crow and segregation. This case resulted when Homer Plessy, a black man, challenged a Louisiana law that segregated rail cars by race. Most amazingly, Homer Plessy was only 1/8 black and 7/8 white, which highlights the great lengths to which the law was manipulated to protect the property in whiteness, complete with its right to exclude “trespassers.” The legal bias inherent in Plessy v. Fergusson would not be challenged until the Civil Rights Movement of the 1950s and 60s.
The enactment of the Civil Rights Act of 1964 represents a rhetorical departure for American law, but the ushering in of the Great Society in 1965 and the beginning of the War on Drugs in 1971 have continued the legal plunder of the black community by destroying initiative and incentive within the community, enervating the organization of its civil society, continuing the gross violation of black civil liberties, and depopulating the black community of much of its human capital—young black men—through mass incarceration.
Former ACLU lawyer and author of The New Jim Crow Michelle Alexander informs her readers that the US currently leads the world in the incarceration of its ethnic minorities. She adds that the American government imprisons “a larger percentage of its black population than South Africa did at the height of apartheid.” Also recently, the NAACP has begun a new campaign highlighting America’s enormous prison population of over two million people. The recent focus of black studies and critical race theory have moved towards an anti-state position, one that would greatly benefit from a libertarian perspective.
The future integration of black and libertarian studies can be seen in the work of economist Dan D’Amico on the prison system and mass incarceration, which he describes in this interview. Libertarians are acutely aware of the tendency for accumulated state power to lead to tyranny, and as such libertarians are perfectly suited to engage in this discussion. Black History Month is important because the long view of black history illustrates in grim detail the disastrous effects of a non-liberal approach to law and jurisprudence. Instead of shunning the collectivist elements of engaging in racialized discussions, libertarians are needed more than ever to compliment black studies. Writing at Libertarianism.org, Jonathan Blanks recently observed:
It is remarkable that American libertarians—so often eager to discuss freedom in nearly every conceivable iteration—rarely address African-Americans and the struggle for civil rights in America. Slavery is long gone, but it is hardly coincidence that the descendants of slaves have accounted for disproportionate percentages of Americans in poverty and incarceration in the 150+ years hence. Save Emancipation and America’s reluctant recognition of the 14th Amendment by way of Civil Rights legislation in the 1960s, the government has consistently (though not exclusively) been a boot on the necks of African-Americans, hindering progress and true equality. Yet libertarians tend to shrink away from acknowledging race for fear of involving themselves in “identity politics” and thus rarely discuss the government’s legacy of racial oppression.
This libertarian will be silent on issues of racial justice no more. I will use Black History Month to speak truth to power, and I encourage all libertarians to do the same. The law has stolen black humanity, dignity, and liberty for four hundred years, and as Frederic Bastiat warned, “It is impossible to introduce into society a greater change and a greater evil than this: the conversion of the law into an instrument of plunder.”