At the time this was written, Clint Bolick was Director of the Landmark Legal Foundation Center for Civil Rights in Washington, D.C., and author of Changing Coupe: Civil Rights at the Crossroads (New Brunswick, N.J.: Transaction Books, 1988).
Ego Brown never fancied himself a crusader His ambition is more that of a classic entrepreneur. His dream, as Mr. Brown describes it, is to “spread the shine” with shoeshine stands on street corners throughout Washington, D.C., and eventually in other cities as well.
The story of Ego Brown in many ways exemplifies the great American tradition of bootstraps capitalism: the methodical climb up the economic ladder by means of creativity, talent, and hard work. Indeed, Ego Brown’s little enterprise took on added luster by providing employment opportunities to the homeless—a classic case of an entrepreneur doing good by doing well.
But along the way, Mr. Brown encountered an unexpected obstacle—a District of Columbia law that forbade him from pursuing his chosen business. This law and thousands of others like it form an oppressive barrier that prevents entrepreneurs like Ego Brown from earning their share of the American Dream.
The resulting battle for the right to earn a living free from excessive governmental interference cast Brown in the unlikely role of champion in the cause of economic liberty. His pathbreak-ing triumph is a beacon to others outside the economic mainstream that opportunity still exists in America.
An Entrepreneur in Action
Ego Brown launched his career after he quit his job as a voucher examiner for the Navy seven years ago. “I used to look outside and think about how good it would be to work for myself,” he recalls. He cast about for the right opportunity to do just that.
Mr. Brown quickly discovered a lucrative potential market in the thousands of scuffed shoes pounding the sidewalks of downtown Washington. “It’s an image city,” he says. “People care about their appearance and they wear nice clothes, but they forget about their feet.”
He set out to remedy this anomaly by providing the “finishing touch”—a quality shoeshine. Drawing upon the talent he developed as a youngster shining shoes for pocket money, Mr. Brown went to work. He started out in a barber shop near Howard University, but soon hungered for his own business. In 1985, he obtained a vending license from the District of Columbia, invested in a portable two-seat shoeshine stand, and set up shop at the corner of 19th and M Streets, N.W. Attired in his trademark tuxedo, Brown quickly attracted a large clientele for his distinctive “Ego Shine.”
Mr. Brown dismisses the notion that shoeshining is degrading to blacks. “I’m out to change that stereotype,” he says. “I’m a shoeshine artist. I provide a valuable service, and I do it with a touch of class.”
The success of his first stand encouraged Brown to expand his business. That’s when the idea of employing homeless people occurred to him. He recalls that “when I used to see these people on the streets, I’d dig into my pockets and give them money. Then one day I realized I wasn’t helping them. They didn’t need a handout. What they needed was an opportunity, a chance to lift themselves by their own bootstraps.”
Thereafter, Ego Brown enlisted workers from the ranks of the homeless. He provided his homeless recruits a shower, clean clothes, a shoeshine kit and training—and most important, a renewed sense of dignity. Brown estimates he employed as many as 20 homeless men, both black and white, at shoeshine stands in downtown Washington. His efforts were so successful, in fact, that a District of Columbia social worker regularly referred enterprising homeless people for the “second chance at life” Ego Brown offered.
But during the summer of 1985, these efforts came to an abrupt end as District of Columbia police shut down Mr. Brown’s business. They cited a 1905 law providing that “No permit shall issue for bootblack stands on public space.” Regulated vendors peddling goods and services ranging from hot dogs to photo opportunities with cardboard celebrities were allowed to operate, but shoeshine stands were prohibited.
Mr. Brown appealed to his elected representatives for help, to no avail. Although Mayor Marion Barry was calling for massive private sector assistance to cure the homeless problem, he ignored Brown’s plight, apparently preferring to have homeless people sleeping on the streets rather than earning their livelihood on those streets.
Thwarted by this anachronistic law, Brown struggled to stay in business by shining shoes in private establishments. But by late 1988, he was a step away from the welfare rolls, his dream dimmed to a faint glimmer.
The District’s shoeshine stand prohibition was a relic of the Jim Crow era. Governments during that time frequently placed severe constraints on economic activities pursued by blacks. Though ostensibly race-neutral, these laws were designed to prevent blacks from gaining economic serf-sufficiency.
The shoeshine ban was such a law, adopted in a political environment permeated by racial bigotry. A 1906 District of Columbia Health Service report reflected the government’s prevailing attitude when it spoke of blacks as “a race just entering what is termed civilized life.”
The same District Board of Commissioners that adopted the bootblack ban took a number of other steps designed to subjugate blacks. W. Calvin Chase, editor of The Bee, Washington’s black daily newspaper during this period, assailed the District government for erecting a public whipping post and enacting stringent licensing requirements for the building trades. Chase called the whipping post “a pet scheme to deter the white wife- beaters by whipping the negroes. The moment a white man is thrashed, the law will go out of business.” Of the builder licensing requirements, Chase asked “[W]hat becomes of the minor builders, who are fully competent to construct a house, but not able to pass an examination?” (The Bee, January 7,1905)
The shoeshine ban fit nearly into this pattern. According to the 1900 census, the public streets of Washington provided a means of living to 1.5 percent of the city’s employed black male population as “bootblacks,” “hucksters,” and “peddlers.” By prohibiting bootblacks on the streets—hence confining them to hotels and bar- her shops as employees rather than independent entrepreneurs—the government eliminated an important outlet for economic serf-sufficiency.
Today, oppressive economic regulations such as occupational licensing laws and government-conferred business monopolies proliferate at the state and local levels. These laws often far exceed legitimate public health and safety concerns. Like theft Jim Crow antecedents, these laws are race-neutral but impose their harshest burdens on people outside the economic mainstream—primarily minorities and the poor.
From the Street to the Courtroom
For more than 50 years, the courts have consistently declined to protect entrepreneurs from arbitrary or excessive economic regulation. Moreover, establishment civil rights groups have ignored such barriers to opportunity, preferring to focus on social engineering schemes like quotas, business set-asides, and welfare.
As a result, in May 1988 the pro-free enterprise Landmark Legal Foundation launched its Washington-based Center for Civil Rights, which initiated a long-range economic liberty litigation program. The Center hopes to restore the basic civil right of individuals to pursue a trade or profession—a civil right that provided substantial impetus for many of the major civil rights laws, including the Fourteenth Amendment and the Civil Rights Act of 1964. The Center promptly filed its first economic liberty lawsuit against Mayor Barry and the District of Columbia on behalf of Ego Brown and two homeless men who worked for him.
In light of a half century of adverse legal precedent, the Center faced an uphill battle. The District cited scores of decisions in which the courts refused to strike down economic regulations, no matter how onerous. But the Center argued that the shoeshine ban went too far, violating the Fourteenth Amendment’s equal protection, due process, and privileges or immunities clauses. Allowing the District to extinguish opportunities in this quintessentially entry-level business, the Center charged, would destroy economic liberty.
Ego Brown’s lawyers suffered a setback in October 1988, when Federal District Court Judge George H. Revercomb denied an injunction on procedural grounds. But Judge Revercomb expressed strong sympathy for the merits of the case, declaring that individuals have a Constitutional right “to follow a chosen profession free from unreasonable governmental interference,” adding that “the federal courts’ role in protecting American citizens from unreasonable economic regulation has been one of the hallmarks of American liberty, prosperity, and progress.”
Heartened by Judge Revercomb’s language, the Center pressed forward. Finally, on March 22, 1989, Judge John H. Pratt declared the shoeshine ban unconstitutional and permanently enjoined its enforcement. “We would have to ‘strain our imagination,’” Judge Pratt declared, “to justify prohibiting bootblacks from the use of public space while permitting access to virtually every other type of vendor.” The District is free to adopt reasonable regulations, he ruled, but may not altogether prohibit shoeshine stands.
An Entrepreneur Vindicated
Ego Brown’s victory in the courts may signal a crucial turning point in the battle to protect economic liberty. The Center plans to use the Brown v. Barry decision as a building block for other assaults on excessive economic regulation, and already has filed a challenge to the Houston Anti-Jitney Act of 1924 on behalf of entrepreneur Alfredo Santos.
For Mr. Brown, the ruling means vindication and a chance to pursue his dream. His enthusiasm waned during the four years following the forced demise of his business. Brown remarked a week before the court decision, “I lose sleep became I can’t understand why.”
But following his triumph, Ego Brown displayed the resilience that is the hallmark of a successful entrepreneur. “I plan to get back on the streets and prove—to myself more than anybody else—that my idea, my dream can become a reality.” Asked if he feared competition from other shoeshine entrepreneurs, Brown replied to the contrary. “It would stroke my ego to see someone else out there with me,” he said. “I would think I had something to do with that, that I inspired someone to go into business. I beckon competition.”
And compete he will. Even before spring reached full bloom in the nation’s capital, Ego Brown was back on the streets of Washington, pursuing his dream. His stand was booming, and homeless people were learning the trade, Wellwishers were streaming by yelling, “Way to go, Ego!”
For countless others like him, however, arbitrary barriers remain. For a nation whose moral claim is staked in its doctrinal commitment to opportunity, such barriers are a matter of shame. Challenging such barriers—securing for all individuals the ability to control their own destinies—is part of the unfinished business in the quest for civil rights.
But Ego Brown’s successful struggle provides hope to would-be entrepreneurs that one day our nation will honor that basic opportunity that is every American’s birthright—every American’s civil right.