The Persistence of Plessy


Unfinished Business: A Civil Rights Strategy for America's Third Century, by Clint Bolick, San Francisco: Pacific Research Institute, 180 pages, $24.95/12.95 paper

The modern civil rights movement began at the turn of the century as a struggle for equal opportunity and equal protection, girded by the principles of the nation's founding. A primary aim: to overturn the pernicious separate-but-equal doctrine established in 1896 by the Supreme Court in Plessy v. Ferguson. After half a century, success finally arrived with the 1954 case Brown v. Board of Education. Ten years later, the civil rights movement achieved another dazzling success with passage of the Civil Rights Act of 1964. In the words of William B. Allen, former chairman of the U.S. Commission on Civil Rights, "petty apartheid was swept from American life with the stroke of a pen."

Then, having achieved its initial goals, the movement quite suddenly changed course. The drive to eradicate discrimination was succeeded by a quest for group preferences and entitlements. During the past 25 years, such "affirmative action" has become the doctrine of the civil rights movement and has been written into state and federal law. The struggle for racial justice has become a conflict—among minorities and between minority and majority—over group privilege.

Into this arena steps Clint Bolick, a Washington, D.C., civil rights activist. In an imaginative frontal attack on establishment doctrine, Bolick declares current thinking on civil rights to be wrongheaded, unprincipled, and ultimately destructive, especially to those it purports to help. A young radical and unabashed idealist, Bolick quotes Thomas Paine, champions the poor and oppressed, and offers not just a new vision of civil rights but a practical strategy to return America to her first principles: inalienable natural rights and equality before the law.

Bolick spells out his manifesto in a slim volume called Unfinished Business: A Civil Rights Strategy for America's Third Century, published by the Pacific Research Institute. As the director of the Landmark Legal Foundation for Civil Rights, Bolick represents mainly poor black and Latino individuals in lawsuits that raise constitutional issues. Imbued with optimism and a sense of mission, he offers a striking alternative to standard prescriptions for preferences and entitlements: economic freedom.

Decades of laws and regulations, Bolick argues, severely constrain entrepreneurship, freedom of contract, and entry into occupations, among other things. Many of these laws—not least the 1931 Davis-Bacon Act, which requires government contractors to pay "prevailing" wages—were promulgated with the transparent purpose of stifling economic competition from blacks. Moreover, the state has consigned poor minorities to the failed public school monopoly, diminishing their chances of obtaining an education.

Through such measures, Bolick writes, government has slowly "cut off the bottom rungs of the economic ladder, leaving those outside the economic mainstream to argue their case for quotas and set-asides or join the welfare rolls." He builds a careful framework for his ideas, ranging over broad historical, philosophical, and legal territory with surprising depth and ease. His penetrating and highly readable discussion of natural rights clarifies their deep relevance to the ongoing civil rights struggle. Unfinished Business offers far more than a litigation strategy; it is a compelling argument crafted to move public opinion.

For Bolick, civil rights are natural rights, as conceived by the classical liberals of the Enlightenment and embodied in the common law, the Declaration of Independence, the Constitution, and the 14th Amendment. It was this original vision of civil rights as the natural and inalienable rights to life, liberty, and the pursuit of happiness—protected by law in equal measure for all—that propelled the nation to independence and informed its greatest triumphs. And it has been the denial of these principles, Bolick reminds us, that has consistently led the nation to its most tragic mistakes, beginning with slavery.

When the civil rights movement abandoned its original principles, Bolick maintains, its struggle swiftly devolved into a spoils system of group preferences. Its governing vision turned from one of liberty and equality before the law to the redistributive, socialist philosophy of the left. As the movement gained political muscle, it grew "complacent, elitist, patronizing, and increasingly detached from the needs of its claimed constituency," he writes. "The contemporary civil rights establishment has sacrificed the civil rights movement's greatest goals, by exchanging individual freedom for group entitlements, equality of opportunity for forced equality of results, and dignity for dependency."

The result: retrogression rather than economic progress among poor blacks. As economic liberty was discarded and welfare became a "right," civil rights advocates legitimized—indeed, insisted upon—the brazenly patronizing assumption that some people, because of their color, cannot be expected to meet the standards demanded of others. A "progressive" version of Jim Crow race consciousness began to flourish.

In advancing this agenda, the proponents of "positive" discrimination have enlisted the judicial system as a major ally. James Madison had conceived of the judiciary as "the bulwark of our liberties," protecting individual rights against the tyranny of the majoritarian state. The courts have abdicated this responsibility, Bolick contends, allowing government to trample on individual freedom in order to promote a purported social good.

Regrettably, Americans appear to have acquiesced in this process. They once viewed government as a source of tyranny and oppression, but most now see it as a font of "benefits" and "entitlements," a benign democratic force for the righting of wrongs. Attacking such attitudes, Bolick draws a potent rhetorical weapon: the perverse ironies that result from abandoning first principles. "Curious spectacles" he calls them, and indeed they are.

In many cities today, the state denies black children admission to their neighborhood schools on account of their race, so they can be bused across town to integrate white schools. This, 35 years after Brown v. Board of Education struck down policies that refused black students admission to their neighborhood schools on account of their race. "Have we traveled so far," Bolick asks, "only to end up in precisely the place that we started?"

We clearly have. In 1896, Plessy upheld "reasonable" race-based distinctions, establishing the separate-but-equal doctrine. In 1978, Justice Harry Blackmun claimed in his opinion in Regents of the University of California v. Bakke that "in order to get beyond racism, we must first take account of race…in order to treat some persons equally, we must treat them differently." The NAACP's Benjamin Hooks has defended quotas by arguing that "the Constitution was never color-blind." Says Bolick: "The most perverse irony of today's debate over racial classifications is that the defenders of quotas are in the position of advancing the principles embodied in the majority opinion in Plessy."

The ironies proliferate, as Bolick has demonstrated in litigation on behalf of his disenfranchised clients. In one case, Bolick represents Demond Crawford, an elementary school student in California who is not allowed to take an I.Q. test offered by the schools because he is black. School officials told his mother that if she would reclassify her son as Hispanic, he would be allowed to take the test. When she turned to the NAACP for help, as one logically might, she was told that the organization had not only approved of the race-based policy, but had demanded it on the grounds that I.Q. tests are biased against blacks.

Earlier, in Brown v. Barry, Bolick successfully challenged a 1905 Washington, D.C., law that prohibited a black man, Ego Brown, from opening street shoeshine stands. The law had been one of many Jim Crow measures aimed at stifling black economic progress. It seems odd that a modern black city administration, with the blessing of the civil rights establishment, enforced the law in the name of protecting its police power to regulate for the public good. Bolick recalls that an activist lawyer from the Equal Employment Opportunity Commission claimed shining shoes was not a dignified job and that Brown would have more dignity on welfare.

The roots of such policies, Bolick believes, run all the way back to a century-old Supreme Court decision. In 1873, the Slaughter-House Cases opened the door to state usurpation of individual economic freedom. Ruling 5–4, the Court eviscerated the Privileges or Immunities Clause of the 14th Amendment, just five years after ratification. The justices upheld a Louisiana statute granting an exclusive 25-year slaughterhouse monopoly in New Orleans and other parishes, and ordered the closing of other existing slaughterhouses. In a spirited discussion of the decision and its lasting consequences, Bolick demonstrates persuasively that Slaughter-House stands "as a nullification of fundamental individual rights."

The framers of the 14th Amendment sought to defend individual rights against government, particularly against state governments. They viewed economic liberty as essential to the progress of blacks and all citizens and saw the Privileges or Immunities Clause as a primary instrument to protect that liberty.

In the words of Justice Bushrod Washington, "privileges or immunities" encompassed those rights "which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments." These rights included, among other things, "the enjoyment of life and liberty, with the right to acquire and possess property of every kind," as well as the right "to transact private business without the interference of government," and the right of an individual "to carry on his own occupation, to secure the fruits of his own industry." Slavery is, of course, the ultimate denial of economic freedom—a fact so obvious it would not bear repeating in any day but the present.

The New Orleans butchers who challenged the slaughterhouse law, Bolick notes, were defending their livelihoods, attempting to protect their right to compete against the state's power to restrain them. In upholding the law, the Court ruled that the states are not bound by federal protection of the privileges or immunities of their citizens.

The ruling was obviously contrary to the intent of the 14th Amendment. As Justice Joseph Field wrote in dissent, "If this inhibition has no reference to privileges and immunities of this character…it was a vain and idle enactment, which accomplished nothing, and most unnecessarily excited Congress and the people on its passage. With privileges and immunities thus designated no State could ever have interfered by its laws, and no new constitutional provision was required to inhibit such interference.…But if the Amendment refers to the natural and inalienable rights which belong to all citizens, the inhibition has a profound significance and consequence."

As a result of Slaughter-House, Bolick declares, "What was designed as a mightly bulwark to shield individuals against government oppression, has been utterly emasculated by judicial neglect, at great cost to all Americans but particularly to those outside the economic mainstream."

Bolick argues that a new civil rights agenda must aim ultimately to reverse Slaughter-House, to restore the basic liberties covered by the Privileges or Immunities Clause. A reversal "would mean far greater security for the forgotten civil rights—primarily economic liberty, which has singularly lacked judicial protection, but also all manner of private property rights, liberty of contract, and other incidents of personal autonomy," he says. "The general sphere of natural rights envisioned by the framers of the Fourteenth Amendment would…provide a new bulwark for protecting individual liberty against the state."

Trying to overturn Slaughter-House may seem a quixotic aim more than a century after the ruling. Yet Bolick recalls that the NAACP also seemed to be tilting at windmills when it set out on its 50-year effort to topple Plessy v. Ferguson. Moreover, Bolick is not alone. He joins a number of constitutional scholars who, along with such thinkers as William B. Allen, Thomas Sowell, and Charles Murray, are laying the necessary intellectual foundation for a revival of the principles of the Founding and classical liberalism.

Bolick notes that "the remarkable successes of left-wing advocacy organizations" show that law "can be a mighty tool…a powerful weapon in the arsenal of liberty." It is now time "for the defenders of freedom to take to the courtrooms and join the battle on our terms." A manifesto of penetrating reason, passion, and practicality, Unfinished Business is essential reading for anyone who has searched in vain for a useful and principled civil rights strategy that supports individual opportunity against group-entitlement dogma.

Carolyn Lochhead is a writer at Insight.