Pacific Research Institute for Public Policy, 177 Post Street, San Francisco, CA 94108 * 1990 • 159 pages • $24.95 cloth, $12.95 paper
One cannot close the cover of this new book by the author of Changing Course: Civil Rights at the Crossroads (Transaction, 1988) without a disquieting sense of how fragile a thing economic liberty really is: how it depends crucially on the recognition of certain principles and their embodiment in law, and how easily these principles can be compromised.
It is clear that the civil rights movement is in a deepening crisis. We once heard calls to create conditions for black empowerment by removing the legal obstacles restricting blacks’ economic activities; now we see preferential treatment, set-asides, and group entitlement-claims. We have witnessed the empowerment of bureaucrats instead of blacks, the rise of victimology as a growth industry whose clients now outnumber non-victims, the smothering of institutions by all sorts in Federal regulations, and the gradual deterioration of race relations. Meanwhile, evidence is mounting that current civil rights policies leave average blacks no more well off than before and even discourage their economic advancement.
But these remarks only go so far. After all, the problems such strategies were intended to address were real. For years, Constitutional commitments to equality of all citizens under the law were marred by slavery and, later, by the legally sanctioned exclusion of members of nonwhite ethnic groups from significant economic influence. So once we note that “conventional” civil rights strategies fail to rectify things, the next question is, “Where do we go from here?”
Unfinished Business takes up where critics of affirmative action leave off, and offers a strategy very much committed to a free society and a market economy. Bolick’s roots are in the 18th-century natural rights tradition, particularly Thomas Paine’s version of it. This tradition emphasized individual natural rights and accompanying responsibilities in civil society, a limited government, and equality of all citizens under the rule of law. Civil rights, in this view, are individual rights embodied in and protected by civil law.
Thus the struggle for civil rights must not be merely a struggle against discrimination but also for individual rights, including the right to own property, to trade one’s skills for money on an open market (the right of entrepreneurship), to assemble and bargain for wages, and so on. Excluded are all forms of coercion against other people, including entitlements that can be fulfilled only at the expense of others. Bolick follows F. A. Hayek in noting that liberty is a negative concept, the absence of coercion by others. This, Bolick argues persuasively, is the real heritage of the civil rights movement; what has happened in the past two decades is an aberration that shouldn’t be seen as a real civil rights strategy at all (his term for it is “civil rights revisionism”).
The original civil rights vision was an ideal that had to be implemented gradually over a long period of time. Its first phase began with the formulation of the concepts of natural rights and of political and economic liberty by John Locke, Thomas Paine, Adam Smith, and others, leading to the Declaration of Independence and culminating in the writing and signing of the U.S. Constitution and the Bill of Rights. The abolition of slavery and passage of the 13th and 14th Amendments, with the latter’s equal protection clause, was its second phase. The third phase culminated in the Civil Rights Act of 1964 and the Voting Rights Act of 1965 which, in their original interpretations, did away with the last of the laws designed to keep blacks “in their place” and would have prepared the way for an increasingly color-blind society in which, to abbreviate Martin Luther King, individuals would be judged solely on the content of their character—and, of course, on their abilities. As a civil rights attorney with experience in the Justice Department and the Equal Employment Opportunity Commission, Bolick has some specific views on what led to the downfall of the original civil rights vision, and this brings us to specifics.
After the Civil War, the 14th Amendment applied equal protection to all citizens regardless of skin color, but new state laws soon restricted the activities of blacks, particularly in the South. The Civil Rights Act of 1866 was designed to protect blacks against such laws and reaffirm the role of the federal government in protecting individual liberties. But two Supreme Court rulings soon weakened its effects, leaving the door open for government to parcel out favors to some and erect barriers against others on the basis of race.
The first Supreme Court ruling was the Slaughter-House decision in 1873; the second was the better known Plessy v. Ferguson in 1896, which established “separate but equal” educational facilities. In the first, the Court upheld five-to-four a Louisiana state law that four years earlier had granted a monopoly to certain slaughterhouses in the New Orleans area and ordered others closed, in effect barring newcomers or “outsiders” from entry into a market. The Court’s reasoning used a restricted interpretation of the equal protection clause, in effect dividing citizenship rights into two categories, those of the country as a whole and those of the individual states.
Slaughter-House set a dangerous precedent that was used to uphold similar laws in other states and led to a decline in the willingness of the Federal judiciary to defend economic liberty. In the arena of race relations, it permitted “separate but equal” facilities years before Plessy. In the professions, its eventual effect was to permit a legally protected formation of machinery that privileged some at the expense of others. “Establishments” developed in the professions that could protect themselves from competition with an arsenal of government regulations, contracts, and licenses aimed at discouraging or even blocking the advances of outsiders. Such laws did not discriminate against blacks, as such, but rather against outsiders who included nearly all blacks.
As for Plessy, the conventional wisdom has it that this decision was effectively overturned by Brown v. Board of Education after a long struggle by the NAACP. But to borrow an expression from affirmative action’s backers, what was overturned was the letter but not the spirit of Plessy. While the “separate but equal” doctrine was repudiated, left intact was the view that government can rely on special “racial facts” as a basis for legislation, and therefore can classify people on the basis of race if such classifications are “reasonable.” Thus was the door left open to civil rights revisionism, which has set the agenda for the last two decades.
The cornerstone of Bolick’s strategy, then, is bold: to chip away at Slaughter-House type legislation until this crucial decision can be overturned, the culmination of an effort similar to the NAACP’s campaign to defeat Plessy. The overturning of Slaughter-House, given its precedent-setting status, would clear the way for a return to judicial protection of fundamental economic liberties for individuals and for full Federal enforcement of the equal protection clause. Such a decision could then serve as the basis for eventually removing every law requiring group classification and every provision protecting some at the expense of others. Then the struggle for civil rights can be set back on course as a struggle for individual economic empowerment in a free market society—a struggle depending on equal protection, creating conditions for individual self-empowerment through individual action.
In other words, today’s situation is the result of two mistakes: the abandonment of the doctrine of individual natural rights and the compromising of the equal protection clause. Both are necessary conditions for economic liberty, in its turn a condition for individual empowerment, black or white.
Unfinished Business is a powerfully argued work, with a wealth of legal citations and a number of case studies illustrating how civil rights revision-ism has worked to the detriment of the people it originally set out to help. But Bolick doesn’t answer all the questions. One potential problem is that Bolick, like many others, wishes to separate the concept of affirmative action from that of quotas in order to argue for affirmative action strategies that avoid quotas. This introduces confusion for, contrary to Bolick, when the former term was introduced it had no “original and highest meaning” or any clear meaning at all. This might seem a quibble; but it was partly the abuse of language by civil rights revisionists that created our present dilemmas. Rather than calling his strategy for black empowerment a kind of affirmative action, he should recognize that this term belongs in the vocabulary of the revisionists and accordingly drop it altogether.
As we conclude Unfinished Business, a far more troubling question arises, one that returns us to the reflection in my first paragraph. Bolick’s premises are clearly stated throughout, and his emphasis on the need for litigation shows that the protection of individual economic liberties by government is no easy matter either to institute or to preserve. This is an issue which freedom philosophers are eventually going to have to address in more detail: individual liberty, the freedom from coercion by others, is neither self-establishing nor self-preserving, as history shows conclusively. Hence it is agreed to be a legitimate function of government to protect it. But how much governmental machinery are we looking at here? Could we find ourselves in the unenviable position of having derailed the drift toward social engineering only to replace it by an arsenal of new rules, this time in the name of economic liberty? Without careful development in the context of particular situations, calls for economic liberty and equal protection will degenerate into slogans. Bolick knows this; accordingly, he does not present them as universal panaceas. But the issue of how much governmental and legal machinery is required to safeguard individual economic liberty in an imperfect world bears pondering.
Unfinished Business has the merit of proposing a strategy based on principle instead of expedience—even if it doesn’t answer every question, offering not a new direction so much as a proposal to get an old one back on course. Everyone involved in one way or another with the civil rights issue can benefit from reading this book.
Professor Yates teaches in the Department of Philosophy, Auburn University.