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Market Solutions to Ancient Sins

Reprinted from Law & Liberty

It is a commonplace observation that public discussion about race relations has been framed and driven by political progressives for many years. Nikole Hannah-Jones’s 1619 Project is perhaps the most obvious example of this phenomenon in recent memory, along with the bestselling books How to Be an Antiracist (Ibram X. Kendi) and White Fragility (Robin DiAngelo). These authors and others like them assert that the United States is and always has been a fundamentally racist country, and that the rhetoric of constitutionalism and individual liberty is a façade for structures of white supremacy. They claim that current gaps between white and black educational attainment and economic outcomes are due to this structural racism, and that thoroughgoing reeducation of whites and redistribution of resources to blacks are imperative to rectify these historic injustices.

Less well known is a group of libertarian and classically liberal scholars who advance a different narrative: that blacks have indeed suffered from many injustices throughout American history, but that the problem springs from an inconsistent application and extension of America’s defining principles of individual liberty to them. These scholars, many of whom are economists, see no need for an overhaul of our constitutional and legal systems. Instead, they call for a fully consistent application of the principle of equality before the law, alongside a strengthening of the institutions of civil society and culture in the black community. The best-known scholars in this group are probably Thomas Sowell and the late Walter Williams. Others include Robert HiggsDavid Bernstein, and David Beito.

With the publication of Black Liberation through the Marketplace, readers have a convenient summary and explanation of the scholarship from this latter school, in a single volume designed for the general reader. Rachel Ferguson, the lead author, is an economic philosopher at Concordia University Chicago, where she directs the Free Enterprise Center. Her co-author, Marcus Witcher, studied under David Beito and is now an assistant professor of history at Huntingdon College in Montgomery. Together they powerfully and persuasively argue that, first, the historical plight of black Americans is best understood if we look at it through a classically liberal lens; and, second, that a classically liberal policy approach, combined with efforts at “transitional justice,” offer the most constructive way forward for race relations in America.

Black Liberation through the Marketplace consists of ten chapters bookended by a brief introduction and an “Epilogue on All the Controversial Stuff.” The early chapters are primarily philosophical in orientation. Chapter One works to explain the classical liberal orientation toward law, with its stresses on property rights and freedom of contract, and its reliance on civil society, or nonpolitical institutions “such as houses of worship, clubs and organizations, the neighborhood, and the family,” to provide people with transcendent meaning.

Ferguson and Witcher argue here and in the following chapter that there exists a long tradition of black intellectuals’ endorsements of classical liberalism and its particular expression in the U.S. Constitution. Black liberals and constitutionalists include Frederick Douglass, Booker T. Washington, Zora Neale Hurston, and many others who endorsed America’s founding principles, such as equality before the law. They simply wanted those principles applied to black as well as to white Americans. These early chapters also feature an important discussion of the contemporary confusion over the term “capitalism,” whether American slavery was a capitalist institution, and to what extent the American economy benefited from slavery. (The short answer is that owners of slaves made out well, but no one else did, and the system retarded economic growth on the whole).

Beginning in Chapter 3, the authors analyze the historic black American experience through the lens of classical liberalism. Contemporary progressives often accuse their opponents of downplaying the past suffering of black Americans, but Ferguson and Witcher’s unflinching examination of the degradation and violence blacks endured both before and after the abolition of slavery makes them immune from such criticism. More importantly, they are able to show effectively the extent to which that suffering resulted from the failure to apply classically liberal principles to blacks. 

For example, they discuss the extent to which blacks were accorded freedom of movement, security in their property, freedom of contract, and the advantages of the rule of law in general. These basic legal protections too often were not present for blacks in the same way they were for whites. Soon after Reconstruction ended in the South, black men in some states could be arrested on flimsy pretexts for petty offenses, imprisoned, and then leased out as forced labor to mining companies and agricultural interests. (Arrests and imprisonments usually spiked just before the harvest, when the greatest number of field hands was needed.) Tens of thousands of convicts died under harsh conditions. Elsewhere, local governments sometimes stripped blacks of their gun rights, leaving them defenseless against mob violence when racial tensions ran high. Such tensions were often the result of black-owned businesses’ competing effectively with white-owned businesses, and law enforcement on occasion stood aside while whites destroyed black citizens’ property. Of course, the most egregious rights violations were the thousands of lynchings that took place in the period between Reconstruction and the mid-20th century.

Ferguson and Witcher stress the resilience of the black population during these years, calling attention to the entrepreneurs and institutions of civil society that both provided effective resistance to contemporary oppression, and laid the foundation for the eventual successes of the Civil Rights Movement. An entire chapter is devoted to the black church and its role in forging a black American identity during the antebellum period and beyond. Booker T. Washington, who is often derided today as a collaborator with white supremacists, receives favorable treatment in Chapter 6; the authors highlight the constraints under which the Tuskegee Institute had to operate and explain how Washington helped reduce white opposition to black educational and economic improvement. Moreover, he actively worked behind the scenes to improve the political climate in which blacks lived. For example, President Theodore Roosevelt’s nomination of Thomas Goode Jones to a federal judgeship in Alabama on Washington’s recommendation was a pivotal act that led to the end of convict leasing.

The final four chapters make the case that interventionist policies, especially those championed by progressives, have often hindered black advancement since the early 20th century. The evidence for this assertion is copious, although progressives have done their best to minimize or dismiss it in recent decades. For most of the first half of the 20th century, the eugenics movement was closely identified with progressivism; its advocates’ calls for charting an Anglo-Saxon future for the country are well documented. Minimum-wage and pro-union legislation was often enacted with the express purpose of protecting the wages of white laborers from black competition. Federal housing policy often enabled lenders to make mortgage loans to white borrowers, but not to blacks with similar risk profiles. After World War II, federal highway policy destroyed many stable black neighborhoods.

Certain core concepts in economics and political philosophy, (e.g., wages as prices or dispersed costs vs. concentrated benefits), are important to Ferguson and Witcher’s argument, but would probably distract from the main thread of discussion in the book. To provide this background, the authors sprinkle fifteen brief, numbered sections labeled “Lessons in Classical Liberalism” as a sort of sidebar to the main body of the text. These sections explain and apply important tenets of classical liberal thought that are often caricatured in treatments from the progressive mainstream. 

For example, the sixth of these lessons, “Feudalism Versus the Open Economy,” describes the classical liberal commitment not only to free trade, but also to the dismantling of the various legal barriers to entry and price-fixing schemes set up to protect established interests from would-be competitors. This laissez-faire vision that implicitly encourages commerce was incompatible with that of antebellum Southern planters, who saw themselves as aristocrats within a feudal economy. The planters generally maintained a disdain for anything bourgeois, and they eventually outlawed the practice of slaves’ “renting themselves out” for wages (with or without the slaveholders’ permission). Implicit in this discussion is a rebuke of scholars associated with the New History of Capitalism, who sometimes attempt to critique the market economy by way of making careless, sweeping generalizations equating Southern slavery with “capitalism.”

 The authors clearly understand that an analysis of historical wrongs implicitly calls for a set of proposals for reform. They address this need with another set of sidebar sections labeled “Looking for Solutions.” Here we find recommendations intended to bring about racial justice and reconciliation. Some of the proposals, such as school choice and criminal justice reform, will be familiar to most readers. What might be new to some of them are the pointed rebuttals to the celebrated arguments of progressive scholars like Nancy MacLean, who portrays school vouchers as having a hopelessly racist history in her popular book Democracy in Chains. MacLean claims that school vouchers are irredeemably tainted, because segregationists in 1950s Virginia employed them as a tactic to thwart temporarily the integration of public schools in the wake of Brown v. Board of Education. Ferguson and Witcher effectively refute this claim by noting that the Virginia vouchers were also opposed on segregationist grounds. Moreover, that episode is an isolated incident in the centuries-long history of school choice theory and practice both in the U.S. and abroad.

Ferguson and Witcher recommend a policy of “transitional justice” to bring about racial reconciliation. They take their cues from the Chicago Principles on Post-Conflict Justice, which were originally formulated to deal with conditions following the fall of dictatorships. The seven principles stress the formal investigation and prosecution of human-rights abuses, the public recognition and memorialization of the victims of those abuses, and institutional reforms designed to prevent future abuses, all within the context of respect for traditional culture and religion.

The authors argue that these principles are far removed from progressive notions of social justice: “They’re principles of plain old justice, applied to recovery from a massive social conflict.” The progressive tendency is to assign guilt to groups and demand that those groups cede power and resources to classes of alleged victims of oppression. Transitional justice instead stresses the investigation of specific crimes, the bringing to justice of particular individuals, and the paying of reparations to particular victims. This proposal might cause discomfort to some conservatives who would prefer to “let bygones be bygones,” despite there being many victims of such oppression still living today. However, the authors insist that ignoring real grievances like these would cast understandable doubt on the social commitment to equality before the law.

The closing “Epilogue on All the Controversial Stuff” is where Ferguson and Witcher deal directly and persuasively with Critical Race Theory, the anti-racism of writers like Ibram X. Kendi, black conservatives and libertarians who are often accused of being “culturally white,” and calls for reparations. By relegating these topics to the end of the book, the authors make clear that they refuse to frame their discussion of black history as a mere reaction to, or refutation of, the mainstream progressive narrative on race. Readers who have followed the arguments to this point will not be surprised to find the authors seek to find some common ground with critical race theorists while also ultimately rejecting their “deep suspicion of liberalism and liberal law.” Similarly, Ferguson and Witcher acknowledge Kendi’s point that the centuries-long exclusion of black Americans from many social and professional networks can continue to contribute to their underperformance in the present. However, Kendi’s proposed solutions, such as the creation of a federal Department of Anti-Racism with vaguely defined powers, would undermine not only the rule of law, but also the market economy that has facilitated so much black flourishing already. 

Ferguson and Witcher make criticisms of both conservative and progressive narratives about race throughout the book, but their disproportionate attention to rebutting progressives makes sense in view of the latter’s outsized influence on public discussion. The authors seem to bend over backwards in their efforts to gain a hearing among progressive readers, by adopting the latest approved terms and usages. For instance, they capitalize “Black” (but not “white”) whenever the word is used in reference to race, and substitute “enslaved persons” and “slaveholders” for the traditional “slaves” and “masters.”

Whether this approach is a shrewd tactic to remove needless barriers for a progressive audience, or an unwise capitulation to the “language police” is a question readers will need to answer for themselves. Stylistic considerations aside, Black Liberation through the Marketplace is a welcome addition to the scholarship on black history and race relations. Ferguson and Witcher make persuasive arguments in favor of the classical liberal narrative about black history, and they also provide valuable summaries of and introductions to the work of other important classical liberal and libertarian scholars on race. In fact, this might be the first book on black history I recommend to students from now on.