The Party of Jefferson

What the Democrats can learn from a dead libertarian lawyer

According to a December 2004 survey by the Pew Research Center, about 9 percent of the electorate —enough to carry a tight race—prefers candidates who offer the basic libertarian mix of fiscal conservatism and social tolerance. With Republicans apparently uninterested in pleasing the libertarian segments of their coalition, some liberals and libertarians—Daily Kos blogger Markos Moulitsas, former Democratic National Committee press secretary Terry Michael, and Reason contributor Matt Welch among them—have suggested an alternative: the libertarian Democrat, the sort of liberal who favors both free speech and free trade, both the right to bare pornography and the right to bear arms.

It's far from clear, however, that the Democratic Party has room for candidates who favor a smaller, less intrusive government. But it did once. The Democratic Party actually has a very distinguished libertarian legacy, one that combined principled anti-imperialism, respect for economic liberty, and a firm commitment to civil rights. If the would-be libertarian Democrats are looking for a historical model, they should consider the Boston attorney Moorfield Storey (1845–1929).

A fierce critic of imperialism and militarism, Storey was a founder and president of the Anti-Imperialist League, which opposed U.S. annexation of the Philippines after the Spanish-American War and counted Mark Twain, Andrew Carnegie, and President Grover Cleveland among its members. An advocate of free trade, freedom of contract, and the gold standard, Storey also helped organize the independent National Democratic Party, also known as the Gold Democrats, who fought the anti-gold populist William Jennings Bryan's presidential bid in 1896. An individualist and anti-racist, Storey was the first president of the National Association for the Advancement of Colored People (NAACP), where he argued and won the group's first major Supreme Court victory, Buchanan v. Warley (1917), a decision that relied on property rights to strike down a residential segregation law.

Born in Roxbury, Massachusetts, in 1845, Moorfield Storey was a successful lawyer whose politics tended toward "good government" reform until the mid-1890s. Then came the presidential election of 1896, when the Democrats selected the agrarian insurgent William Jennings Bryan as their candidate. Bryan's chief cause was "Free Silver," a call for the government to coin unlimited amounts of silver at an artificially inflated rate. As the historians David and Linda Beito have noted, "the result would have been a pell-mell rush of silver holders to exchange their metal for dollars, and hence rapid dollar inflation and a corresponding depreciation of the currency." Bryan expected and welcomed this result, believing it would put cheap dollars in the hands of debt-ridden farmers, leaving the banks and other hated creditors to absorb the losses.

Opposition to Bryan's "50-cent Democrats" fractured the party. (Republicans were mostly united against Free Silver.) The luminaries in the Democratic gold camp included President Cleveland, Treasury Secretary John C. Carlisle, Nation publisher E.L. Godkin, Agriculture Secretary J. Sterling Morton, and textile manufacturer Edward Atkinson. They also included Storey, who denounced Free Silver to an audience of fellow Cleveland Democrats as a scam "organized and promoted by men directly interested in the promotion of that metal." From this opposition emerged the Gold Democrats, a third party that offered its nomination to Cleveland and, after he turned it down, ran Sen. John C. Palmer (D-Ill.) for president instead. (Cleveland himself encouraged but never formally endorsed Palmer's ticket.) Palmer's anti-Bryan campaign drew just 134,000 votes, less than 1 percent of the total. But the same split that divided the party drove many Democrats to support the pro-gold Republican William McKinley, who beat Bryan by a decisive 600,000 votes, collecting 271 electors to Bryan's 176.

William McKinley's Wars
Though pleased at Bryan's defeat, Storey saw little reason to cheer the new president. For one thing, there was McKinley's support for high trade barriers—arising, Storey said, from McKinley's ties to businessmen who "wish[ed] the taxing power of the government used to increase the value of their products." The president's signature on the tariff-hiking Dingley Act in 1897 did little to change Storey's mind. But the worst was still to come.

In Cuba, armed rebels were fighting to end four centuries of Spanish rule. The Spanish responded with mass arrests and the infamous reconcentrado camps, pen-like enclosures where both guerrilla fighters and innocent civilians were herded and "pacified" through brutal methods ranging from torture to deliberate starvation.

With such drama unfolding just 90 miles off the Florida coast, America's yellow press worked overtime, loudly trumpeting the call for armed intervention and "Cuba Libre." For those with expansionist sympathies, particularly the officers, journalists, and politicians orbiting the charming and pugnacious assistant secretary of the Navy, Theodore Roosevelt, the Cuban revolt was an opportunity to extend Old Glory's reach. After the USS Maine exploded in Havana Harbor on February 15, 1898, Congress and the White House agreed, and on April 19, the United States declared war on Spain. "The condition of affairs in Cuba is a constant menace to our peace, and entails upon this government an enormous expense," President McKinley said in his war message to Congress. "It is no answer to say that this is all in another country, belonging to another nation, and is therefore none of our business. It is specially our duty, for it is right at our door."

In victory, the U.S. acquired Cuba, Puerto Rico, and Guam, which were granted a relative degree of liberty and self-government, and the Philippines, which were not. In the opinion of the Filipino rebels, who had also fought the Spanish and had allied with U.S. Admiral George Dewey after his naval victory at Manila Bay, the Philippines deserved the same freedom as Cuba. Instead, it got an American occupation followed by a full-scale war.

"The first blow was struck by the inhabitants," McKinley declared, referring to a minor and otherwise forgettable skirmish between closely situated U.S. and Filipino troops. "They assailed our sovereignty, and there will be no useless parley, no pause, until the insurrection is suppressed and American authority acknowledged and established." And so the Philippine War came.

Storey had already opposed the fully declared Spanish War, which he denounced as an act of imperialist meddling, but he was especially outraged by McKinley's undeclared war in the Philippines. (Even Cleveland, a member of the Anti-Imperialist League, had been too much of a sabre-rattler for Storey. In 1895, when Cleveland forcefully intervened on Venezuela's behalf in a border dispute with British-held Guiana, Storey declared that the administration's "demagogues go too far in the way of rousing the jingo feeling.") In his devastating 1926 post-mortem, The Conquest of the Philippines by the United States, Storey argued that McKinley "sanctioned a war without the authority of Congress, he refused to parley, and he told Congress that the question would not be open until the Conquest by arms had been completed. What wearer of a 'kingly crown' could more despotically have dealt with a question of such vital importance to the nation?"

It was the American people, via their elected representatives, Storey maintained, that had the authority to declare war, not "kingly" McKinley. "The President not only has no power to make the decision for them," Storey raged in a letter to the Wisconsin progressive Robert M. LaFollette, "but has no right to take steps which commit the country to war, so that the people cannot deliberately decide for or against it."

Today, as the Bush administration claims sweeping new war powers of its own, including the right to detain American citizens without trial and to torture so-called enemy combatants, Storey's antiwar arguments strike an eerily familiar note.
In Storey's view, the U.S. government had no right, legal or moral, to impose democracy or any other system on another country. "When the white man governs himself that is self-government," Storey said, quoting Abraham Lincoln. "But when he governs himself and also governs another man, that is more than self-government—that is despotism."

Storey found the very idea of an American empire to be toxic. Anticipating Randolph Bourne's famous observation that "war is the health of the state," Storey cautioned that "power is always used to benefit him who wields it." Thus, "the king aims to preserve and strengthen his dynasty. The oligarchy clings to its privileges at the expense of the people."

Furthermore, Storey correctly worried that the subjugation of the dark-skinned Filipinos would encourage greater racism at home. "The Philippine war has paralyzed the conscience of the Republican party," he charged. "It cannot denounce the suppression of the Negro vote in the South by any argument that does not return to condemn the suppression of the Philippine vote in Luzon and Samar."

On this point, Storey was in rare agreement with a figure that might be considered his exact opposite: Sen. Benjamin "Pitchfork" Tillman (D-S.C.). A leading Southern progressive and a close ally of William Jennings Bryan, Tillman was one of the country's most virulent white supremacists, a man whose political career began with the Red-shirts, a Klan-like terror group that menaced blacks during the start of Reconstruction. Tillman rejoiced at the Philippine War's implications for the Jim Crow South. "No Republican leader," he crowed, "will now dare to wave the bloody shirt and preach a crusade against the South's treatment of the negro."

Storey was horrified when the Democrats again selected Bryan for president in 1900. Storey held his nose and supported Bryan's strongly anti-imperialist campaign (which distinguished between the "just" Spanish War and the imperialist Philippine adventure), but he charged afterwards that the party's resounding failure in that election "is found in Mr. Bryan's insistent demands that the silver question be also injected in the Democratic banner." Thus, rather than "giving combat on the clean cut issue of imperialism," Bryan alienated both Gold Democrats and anti-imperialist Republicans, "who, though vehemently condemning the Philippine policy of their President were unwilling to see their country adopt a false and dangerous system of currency."

For Civil Rights and Property Rights
Storey ultimately counted more defeats than victories. Despite the Gold Democrats' efforts, populists and then progressives came to dominate the Democratic Party, signaling the end of classical liberalism and the rise of the big-government liberalism we know today. Meanwhile in the Philippines, McKinley's bloody and illegal war lasted until the presidency of Woodrow Wilson, leaving tens of thousands of Filipinos and some 4,000 American soldiers dead.

But Storey did achieve one unqualified victory, a win that improved the lives of countless African Americans and helped set the course of civil rights in the twentieth century. In 1917, the Supreme Court heard the case of Buchanan v. Warley, which centered on a Louisville, Kentucky, ordinance segregating residential housing blocks by race. Enacted "to prevent conflict and ill-feeling between the white and colored races," the law made it illegal for blacks to live on majority-white blocks and for whites to live on majority-black blocks. To test the law, local NAACP member William Warley arranged to buy property on a white block from real estate agent Charles H. Buchanan, also an opponent of the law. When Warley "learned" that he could not live on the property he was purchasing, he refused to complete payment. Buchanan sued but the Kentucky courts ruled against him, upholding the ordinance. NAACP president Storey, joined by Louisville attorney Clayton B. Blakely, argued the case before the Supreme Court.

In their brief, Storey and Blakely denounced residential segregation as a racist interference with economic liberty. The Louisville law "prevents the plaintiff from selling his property for the only use to which it can be put," they wrote. "It thus destroys, without due process of law, fundamental rights attached by law to ownership of property." Furthermore, the law's true purpose was not "to prevent conflict and ill-feeling," as it claimed, but rather "to place the negro, however industrious, thrifty and well-educated, in as inferior a position as possible with respect to his right of residence, and to violate the spirit of the Fourteenth Amendment without transgressing the letter." Were such a restriction upheld, they argued, "an attempt to segregate Irish from Jews, foreign from native citizens, Catholics from Protestants, would be fully as justifiable."

Among the legal authorities the brief cites is Lochner v. New York (1905), perhaps the Court's most famous—some would say infamous—decision regarding economic liberty. In Lochner, the Court struck down a New York law setting maximum working hours for bakery employees as a violation of the Fourteenth Amendment right to liberty of contract. Writing for the 5–4 majority, Justice Rufus Peckham held that New York's "real object and purpose were simply to regulate the hours of labor…in a private business, not dangerous in any degree to morals, or in any real and substantial degree to the health of the employee." Therefore, the right to liberty of contract "cannot be prohibited or interfered with, without violating the Federal Constitution."

In its Buchanan brief, the state of Kentucky took a dimmer view of economic liberty. Advocating the approach known as "judicial restraint," the state argued that the Court should defer to local judgment. "Whether the legislation is wise, expedient, or necessary, or the best calculated to promote its object," the brief argued, "is a legislative and not a judicial question." Furthermore, "the injury [to property rights] is merely incidental to the city's right to segregate, and does not warrant the overthrow of police regulations." As for Storey and Blakely's contention that the law forced blacks to inhabit the city's worst neighborhoods, "the improvement of the negro's condition is limited only by his own character and efforts."

The Court disagreed. "Property is more than the mere thing which a person owns," Justice William Day held for the unanimous body. "It is elementary that it includes the right to acquire, use, and dispose of it." Accepting the Storey-Blakely argument that the ordinance was racist in intent, Justice Day held that the Fourteenth Amendment "operate[s] to qualify and entitle a colored man to acquire property without state legislation discriminating against him solely because of color."

Storey was justifiably thrilled at the victory. "I cannot help thinking it is the most important decision that has been made since the Dred Scott case," he wrote to NAACP disbursing treasurer and fellow Gold Democrat Oswald Garrison Villard, "and happily this time it is the right way." W.E.B. Du Bois, the editor of the NAACP newsletter, The Crisis, heartily agreed, crediting Buchanan with "the breaking of the backbone of segregation."

In fact, as the legal scholar David E. Bernstein argued in the Vanderbilt Law Review, "though it was not used to its full potential, Buchanan almost certainly prevented governments from passing far harsher segregation laws [and] prevented residential segregation laws from being the leading edge of broader anti-negro measures."

Buchanan also provides a telling contrast with the Court's disastrous recent holding in Kelo v. City of New London (2005), which allowed the Pfizer Corporation to acquire private property seized via eminent domain under the city's "economic revitalization" scheme. In his Kelo dissent, Justice Clarence Thomas observed that African Americans would be particularly vulnerable under Kelo, a predictable consequence given that "urban renewal projects have long been associated with the displacement of blacks." Several leading civil rights groups supported the property owners in their fight, including the NAACP, which filed an amicus curiae brief. But it was the Court's liberals—John Paul Stevens, Ruth Bader Ginsburg, David Souter, and Stephen Breyer, along with the mercurial Anthony Kennedy—that comprised the majority, a telling commentary on modern liberalism's failure to learn Buchanan's essential lesson: that civil rights are impossible without economic liberty.

Moorfield Storey understood that. On the major issues of both his day and ours, he consistently got it right: He led opposition to a costly and unnecessary war, he stood against collectivism and racism, and he championed individual rights in every sphere of human life. Facing death in October 1929 at the age of 84, his body debilitated by a series of strokes, Storey took great pride in the fact he had left his country a freer place. More Democrats—and for that matter, more Republicans—should follow his lead.

Damon W. Root is a writer living in Brooklyn.