The Party of Jefferson

What the Democrats can learn from a dead libertarian lawyer

Damon W. Root from the December 2007 issue

(Page 2 of 2)

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.

Comments

|11.27.07 @ 12:20AM|#

Although we shouldn't hold out much hope for today's nanny-statist Democrats, I for one love the articles that talk about unsung heroes of liberty. I will look more into this Moorfield Storey.

Thomas Paine\'s Goiter|11.27.07 @ 9:41AM|#

When I got December issue, I flipped through it and saw four or five articles with possibilities. This one did not disappoint. The subject matter and writing in the last few issues has been excellent.

|11.27.07 @ 9:46AM|#

For a magazine called Reason...you get excellent articles like this one. Great job! I had never heard of Storey before. Where have all the people of principle gone? You certainly find few today.

x,y|11.27.07 @ 9:49AM|#

Slight threadjack (but ultimately on topic):

Would the Paul campaign have the traction it does now if he had been a 10-term Democrat and was running for president as a Democrat? Assume all his positions are the same.

|11.27.07 @ 10:04AM|#

I always thought that a libertarian might make it somewhere using a populist slant:

"The government controls drugs because it ultimately wants to control you! And to benefit Big Pharma, who is afraid of alternatives!"

"The government taxes everyone and gives to its rich, connected buddies!"

"The government uses welfare to control the lower classes!"

Things like that; just fiery, crazy anti-government rhetoric that orients the message toward "empowering the people". I mean, what I said above is generally true, but the arguments are presented on a more cool-headed, rational level.

Anybody think that might work?

Episiarch|11.27.07 @ 10:20AM|#

I mean, what I said above is generally true, but the arguments are presented on a more cool-headed, rational level.

Anybody think that might work?

Nope. Too many people's envy and hatred of the rich is vastly more powerful than their hatred of the government or its attempts to control them.

It sucks but it's true. A lot of people just want to see rich people brought down a peg or 10 (and have their wealth spread around), more than they want opportunities for themselves.

src|11.27.07 @ 10:55AM|#

Actually, I do think it might work. I've always felt libertarian ideas aren't sold well, outside a small niche of educated politics enthusiasts.

There's anti-government sentiment out there. Think about everyone screwed over by Katrina. People who depend on so-called government benefits (Medicaid, public schools, welfare) and can see how badly they work. If you can position free-market ideas as a war on poverty, it might shake the misconception of libertarians as callous.

greenish|11.27.07 @ 11:01AM|#

One could also argue that the only way to effectively "screw the rich" is to weaken government - since the rich have the power, using a gigantic nexus of power to screw them over is bound to fail or create a new rich class.

|11.27.07 @ 11:14AM|#

One could also argue that the only way to effectively "screw the rich" is to weaken government

You would have to seriously think for 10 - 15 minutes to realize that is the way it has ALWAYS been. The "rich" almost always support the status quo. It's a fairly obvious conclusion to a thinking adult, but far too much to ask of the average Ovine-American.

JBinMO|11.27.07 @ 11:20AM|#

You would have a problem though. Most people seem to beleive that today we ahve a purely free market, I hear it about housing and the mortgage industry all the time. No one thinks about Fannie Mae, Freddie Mac (both started by the government) FHA and VA loans, mountains of regulations. Despite all these, people are still convinced that the government is not involved in housing. That is a big problem.

Highway|11.27.07 @ 11:26AM|#

greenish, generally, the people who want to use the government to screw over 'the rich' want to BE that 'new rich' group when all is said and done.

|11.27.07 @ 11:33AM|#

This was a fascinating article. Thanks to Mr. Root and Reason for publishing it. What's interesting to me is how this shows the same issues coming up again and again in American history. Unfortunately, we have a tendency these days to limit our view of "American history" to post-World War II or even today to post-Vietnam.

The basic threads of American libertarianism go back to the very European settlement of this land, even if those same folks had some non-libertarian notions.

|11.27.07 @ 11:35AM|#

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.

And thus ends every argument joe has ever made against private property rights...not with scream but only a hint of a whimper.

The Libertarian Populist|11.27.07 @ 12:02PM|#

The Government oppresses the average American through its suppression of private property rights! Big Brother's embraces eminent domain because it ultimately renders the average citizen powerless.

Big Government does not think about America...they continually ship billions of your hard-earned dollars around the world to prop up anti-democratic regimes like Saudi Arabia and Pakistan. The Government should stop stealing from the mouths of our children to give to corrupt third-world country dictators. It's unacceptable.

The State is wedded to its rich "buddies" in the corporate world; the Government pilfers money from hard-working Americans like you and me and gives it to wealthy, well-connected welfare queens. Why is the American family paying for Archers-Daniels-Midland's executives to fly about the country in Lear jets?

The elites want to suppress the average American, by either having everyone dependent on Mommy and Daddy Government to provide, thereby rendering us helpless, or through onerous, "good-for-us" initiatives that take away YOUR choice.

|11.27.07 @ 12:10PM|#

On the topic of using government to screw over the rich, I have one word to offer - nomenklatura.

BakedPenguin|11.27.07 @ 12:25PM|#

First, let me add to the kudos already stated for this article.

Second, to address I've always felt libertarian ideas aren't sold well, outside a small niche of educated politics enthusiasts.

I think this is very true.

One problem is that libertarians are seen as wanting to only take away things currently provided by the government. I believe a lot of liberals (and "compassionate" conservatives) have this idea that libertarians just want to see things taken away from poor people (for laughs, I guess). If more libertarians talked about a positive vision of libertopia, where many of the current government services were provided by communities and charities, using some of the money returned to private sources (since government would no longer get it), we would gain more traction. It is vital to liberty to state that wealth belongs to those that create it. However, pointing out that the "social safety net" won't collapse absent massive government won't hurt.

Another thing that somewhat bothers me is that everything in libertarian discussion appears to come back to the market. While I agree that nearly all choices humans freely make (with economic consequences) will be settled in a market setting, why assume it? Go back to "free choice" and discuss the implications from there, including the fact that people can "opt out" of the market, but they will be responsible for the consequences of that choice until and unless they opt back in.

Finally, there have been a few threads where the relative paucity of black libertarians has been discussed. Can you imagine if more Libertarian (or libertarian) candidate went into black neighborhoods to campaign, and talked about ending the War on Drugs, talked about more limits on police militarization / brutality, and more stringent judicial review?

|11.27.07 @ 12:40PM|#

IIRC, Republican candidates have had the most success within black communities when they have adopted libertarian themes. Of course, there is still the lingering mistrust from the Civil Rights era, not to mention the misconception that the Democratic leaders genuinely care about their welfare as much as their votes.

|11.27.07 @ 1:16PM|#

BakedPenguin - you're absolutely right, I think, that libertarianism is too often perceived as a negative approach, esp by liberals. Just the other day there was an article in Slate (which aside from the occasional screeds by Hitchens usually slants liberal) that decried the "cramped" small-government philosophies of the Republican presidential candidates. (Never mind that by libertarian standards they're almost all raving statists.) On the contrary, I said to myself; reducing the scope of government doesn't mean reducing the potential of individuals. It means liberating that potential.

But unless we can persuade the left that libertarianism is a positive philosophy, there's no chance of a long-term accomodation. And personally, I don't think there is any chance at all, because the modern left (like the modern right) seems to be dominated by the notion that positive means state-supported - that a small government is one that is restricted to less than its proper functions. Which is why 'liberaltarianism' is nothing more than a tactical marriage of convenience.

BakedPenguin|11.27.07 @ 1:49PM|#

peachy - Being in a corporation with liberal co-workers can be quite amusing. There, they can see the negative effects of one-size-fits-all, top down "solutions" imposed on them, and see how ideas arising from the ground up work better.

But they can never seem to grasp the wider view, that government "solutions" are always top-down, one-size-fits-all (and always zero-sum, to boot).

I think you're right about the impossibility of any long-term accommodation, for the simple fact that there are so many progressives who view government as a bulwark against what they perceive as "corporate power". Apparently, "regulatory capture" is not a concept which has been explained well to progressives.

Nevertheless, I would be hesitant to rule out temporary, ad hoc alliances, if only because they could be used to explain the libertarian positions better, including positive visions of what freedom can accomplish.

|11.27.07 @ 2:07PM|#

Someone should also tell these weenie dems that the "partying" they do should be available to all men...regardless of creed or income level. The drug laws that they tend to forget about when they are in control would give them a real issue young people could relate to...not "global warming"...

Fritz|11.28.07 @ 12:01AM|#

It's good that we should remember the "Bourbon" Democrats, the last successful truly liberal group in national politics, and Grover Cleveland, our last truly liberal president. Especially given the establishment view of history where the racist, imperialist, aristocratic "Progressives" are supposed to be the good guys.

Carl Milsted|11.28.07 @ 11:48AM|#

Liberty and equality should go together. I just recently looked at the Gini coefficients of various states (follow the link I just gave) and found that the two states that have elected the most Libertarians to the state house also have some of the lowest Gini coefficients: Alaska (lowest) and New Hampshire (4th lowest).

Small government coupled with taxation based on natural resource use (i.e., Georgism) results in more equality. Alaska has the Permanent Fund, funded by oil, and New Hampshire gets most of its state funding through property taxes.

A left-libertarian political party (combining more equality with smaller government) could become a major political party.

|11.28.07 @ 5:27PM|#

Great Article!!!

|11.30.07 @ 4:36PM|#

If the Democrats would just stop proposing new government programs, and promise to stop increasing spending every year, they would probably become the permanent majority party.

Republicans have lost all credibility on fiscal issues, and Democrats are already better on war and civil liberties.

Giving up their addiction to bigger government shouldn't be that tough for the Democrats, either -- President Bush has increased spending by over 50% in the past 7 years. They could actually CUT spending and still have a bigger budget than Bill Clinton did, with plenty of cash to spend on progressive priorities.

Perhaps the Ron Paul Revolution will get their attention. An anti-war, pro-civil liberties, pro-Second Amendment, fiscally conservative, pro-smaller government party would not only be really popular right now, it would be gaining the young political activists and cementing its future status as the dominant party.