Towards an Understanding of the Libertarian Take on Civil Rights

The intellectual progeny of Clarence Thomas have been trying to reframe civil rights for decades.

So, I think I mentioned last time that I would be reading a wide variety of books in an effort to understand how various ideas about America’s social contract was shaped. For a different project entirely I found myself reading an osbscure book written in the 1980s, by someone whose take on civil rights I had a hard time comprehending. To be clear, I also disagreed with his take—basically that we should get rid of all civil rights legislation passed since the late 1950s—but it was one I’d seen a lot of rightwing, and particularly Libertarian, pundits make so I wanted to understand where it came from. And it basically lays out the argument underpinning the current pushback against Critical Race Theory in schools (in broad strokes, Critical Race Theory is the study of structural racism in America: a big problem for people who don't think structural racism exists.)

The book is one I’m almost sure you won’t have heard of: Changing Course: Civil Rights at the Crossroads. It’s written by a libertarian activist attorney, er excuse me “public interest lawyer” turned Arizona Supreme Court justice, Clint Bolick. It was published in 1988 right after Bolick had left his position in Ronald Reagan’s Department of Justice. Bolick was a vocal proponent of the idea of “reverse racism” as a law student. A profile of him in The Los Angeles Times once referred to Bolick as "one of the nation’s earliest angry white males." In that profile he described being a blue-collar white guy who didn't take kindly to being told he was "privileged" as soon as he set foot on a college campus. "No sooner did I arrive in college than I heard that I and everyone else who was white and male were privileged, and that others should be given preferential treatment regardless of what their socioeconomic status was," he told the LAT. "Knowing how much I was working and sacrificing, and how much my parents had worked and sacrificed, it seemed patently unfair.”

That righteous indignation deepened as he watched various "reverse racism" cases unfold across the country. It propelled him into constitutional law, and then into rightwing public interest law organizations, which eventually brought him to the man who would help him start really winning on his crusade: Clarence Thomas.

Bolick went to work for now-Supreme-Court-justice Clarence Thomas at the Equal Employment Opportunity Commission (EEOC) and Thomas shifted his views in a few really key ways. The goal should not be to legally prove reverse racism, Thomas counseled him, but to show that modern civil rights legislation runs counter to the understanding of equal rights the country was founded upon, that in fact things like affirmative action, by virtue of mentioning race at all, are discriminatory. Thomas also helped Bolick see that to shift things, he should not be looking at aggrieved white men like himself, but to poor and working-class Black people who weren't benefiting from affirmative action policies and could be key allies to him.

Changing Course is the book Bolick wrote to lay out his new and improved theory on civil rights, post-Thomas.

In it, Bolick writes

“The founders of the American experiment defined civil rights as natural rights enshrined in civil law. They stressed an absolute equality of rights, not only because they viewed all individuals as equal in the eyes of their Creator, but in order to safeguard the underlying fundamental rights: if rights are equal, the sanctity of one’s own rights is dependent upon scrupulous respect for the rights of others.”

Thomas Paine, one of the Enlightenment philosophers who contributed to the formation of social contract theory, echoes many of the same sentiments. But in both Paine’s original theories and Bolick’s more recent interpretation, you also find the foundations of systemic inequality. In his various writings on the social contract, Paine noted that any departure from equal rights implied “a stigma on the moral character of the persons excluded.” With the American Revolution fresh in his mind, Paine also notes that of course rights can be excluded from people by force, but that “it is impossible to exclude them from the right of rebelling against that exclusion; and when all other rights are taken away, the right of rebellion is made perfect.”

Bolick points out that, of course, all of this depends on how you define equality, drawing what he calls a “seminal” distinction between equal opportunity and equality in result. Bolick, Thomas, and most conservative politicians fall firmly into the opportunity camp: if everyone is given equal opportunities, the thinking goes, that’s equality. You can’t go about engineering society to ensure equal outcomes.

“The essence of the social contract is that it incorporates into society the maximum individual liberty that existed in the state of nature,” Bolick writes. “Equality in result, conversely, requires coercion by the state, which necessarily infringes upon the very individual rights for whose protection societies are formed.”

In other words, laws meant to address past or present inequalities pervert the intention of civil rights and individual liberties. This operating theory, of course, assumes that as soon as an injustice is righted—the end of slavery, for example, or Constitutional amendments that gave Black men and white women the right to vote—it ceases to have any impact. This magical thinking proclaims that generations of family separation or enslavement, violence, theft, or torture leave no lingering impact. That once the active harm ceases, it is, in effect, forgotten. It’s an idea no psychologist, historian or anthropologist would endorse, and yet it underpins much of conservative American politics today.

For Bolick, the original civil rights warriors were the soldiers of the American Revolution, and “the legacy of the quest for civil rights in America is a steadfast commitment to the principle that distinctions in rights based on race, color, or national origin have no place in a rational, just society.”

What’s happened since the passage of Brown vs. Board, according to Bolick, is a perversion of that original intent. He argues that modern civil rights leaders “have attempted to transform the very nature of civil rights from those basic freedoms we all share equally as Americans into special privileges for some and burdens for others, based solely on the same characteristics they once fought to render irrelevant. They have exchanged color blindness for color consciousness; equality of opportunity for forced equality in result; individual liberty for group reparations; civil rights for social engineering; justice for power.”

Toward the end of his slim treatise, Bolick calls this new civil rights paradigm, non-ironically, The New Slavery. He writes: “with the frenzied expansion of the welfare state from the mid-1960s on, overzealous government benevolence created exactly what Franklin Roosevelt and others had warned against—a class of people separated from mainstream America, with little prospect of ever bridging the ever-widening chasm.”

This, of course, leads into a warning about the dangers of dependency on the government dollar. The solution? Self help, individualism, pulling oneself up by one’s own bootstraps.

Throughout the 90s, Bolick would go on to become one of the fiercest critics of what he called “quotas.” The Wall Street Journal gave him a column, in which he ranted regularly about the mention of race in any policy, the argument roiling underneath always: you can’t make things more fair for marginalized groups by making them less fair for me.

All of this, of course, rests on a few key assumptions, and I called up professor Ted Shaw, longtime litigation director with the NAACP Legal Defense Fund and a frequent opponent of Bolick’s over the years, to discuss them. Caveat: he has not read Bolick’s take on civil rights. “I don't need to read his book to have some understanding of where he's coming from, because I tangled with him on many occasions,” Shaw said. Fair enough.

“I'm not going to take issue with your characterization, although I don't know that he would acknowledge that that's where he was coming from. That is to say that after slavery, the issue of racism has been resolved or something like that. He's a libertarian. And there are libertarians whose opposition to civil rights legislation is based in a notion of libertarian theories, principle among them a trust in the marketplace as the most important and trustworthy source of getting it right, for lack of a better way of describing it, in this country.” — Ted Shaw

Okay, so assumption number one: the market is perfectly free and equal, and operates without interference. If everyone has equal access to the market, they have equal opportunities, and thus equal rights. But of course, in the U.S., some people have more power to control the market, and not everyone plays by the same rules. As economist Robert Reich put it in one of his many screeds against the “myth of the free market,” a cherished belief of many free-market thinkers is that

“the ‘free market’ is natural and inevitable, existing outside and beyond government. So whatever inequality or insecurity it generates is beyond our control. And whatever ways we might seek to reduce inequality or insecurity – to make the economy work for us – are unwarranted constraints on the market’s freedom, and will inevitably go wrong.”              – Robert Reich

Shaw says that when he was coming up against Bolick and his ilk in the 90s, Bolick's "priority was fighting regulations and minimizing regulations,” and anything he could describe as a “quota” became a big part of that. “I mean, that became the charge, you know, the attack mode for these conservatives during those days, that if you supported civil rights legislation, you were in favor of quotas.”

That thinking played into the conservative push against updating the Civil Rights Act of 1964. Bolick led that charge. In 1997, The New York Times called him “the political right’s point man on race,” noting that, “he was a principal strategist in the nearly two-year fight that held up passage of the Civil Rights Act of 1991, bedeviling proponents of the measure, which opponents called a quota bill. And Mr. Bolick virtually wrote a bill before Congress that would end Federal affirmative action efforts.”

I asked Shaw about what went down during those years, and he said to understand that we’d have to go back to an 1883 Supreme Court decision that struck down civil rights legislation that had been passed in 1875, in the aftermath of the Civil War.

“So this is the Supreme Court speaking in 1883. In some ways, slavery was not cold in his grave. We were 20 years after the Emancipation Proclamation and and only 18 years or so after the 13th Amendment ended slavery.  And the court said that that there comes a a time in the progression of a race of people, who, by the passage of beneficent legislation, has been brought to the level or the position of full citizenship, where they have to basically stand up on their own two feet and cease to be, and these are the words of the court exactly, “the special favorites of the laws.” — Ted Shaw

I mean wow. Slavery was barely over, the Klan had been founded and there were people lynching Black folks. And, as Shaw put it, “many of the southern states, if not all of them, were attempting to restore Black people to as close a condition to slavery as they could.”  The 1875 act had attempted to outlaw discrimination in employment, and the exact sort of discrimination that would become rampant throughout the Jim Crow South for the next several decades.

Fast forward to the 1960s, and “it wasn't until 1964 that the Civil Rights Act of 1964 was enacted, echoing the 1875 act and prohibiting discrimination in employment, and racial discrimination, but also sex discrimination in employment.”

Shaw calls it “one of the most important pieces of civil rights legislation in any time, in any era.”

Almost immediately, of course, it was narrowed in scope by a string of Supreme Court cases, which brings us to the need for an update in the 1990s. In 1991, Congress revisited the Civil Rights Act of 1964 to counteract some of the narrow interpretations of Supreme Court decisions.

“And so that was an important time,” Shaw says. “It was an important issue. The opposition by conservative lawyers, including Clint Bolick, was not unexpected because for them, you know, any attempts to really strengthen or maintain the strength of the Civil Rights Act of 1964, they equated with quotas." The fight over updating the Civil Rights Act really crystallized the right's thinking on civil rights in general, according to Shaw. "This is just one of the reasons why I don’t use that term,  'reverse discrimination,'" he says. "The assumption is that the white folks are qualified and being displaced by unqualified Black and Brown people.  I don't have, as the saying goes, any truck for that.”

Fast-forward to today, and the debate over Critical Race Theory and whether or not it should be taught in schools. Scholars like Kimberlé Crenshaw and Derrick Bell formulated critical race theory in the 1970s as a way to research and talk about structural racism and how it plays out in America. Funnily enough, although critics today take it to be some sort of personal attack on white people, it arose out of a desire to talk about how institutions, not individuals, perpetuate racism. In a piece in The Economist recently, philosophy professor Jason Stanley explained it this way: "Mortgage lending, for instance, can function in a racist way," he wrote. "Even if the lenders themselves harbour no personal bigotry against non-whites. CRT holds that such institutional practices are difficult to change and endemic to American institutions, and that they, rather than the malice of individual bigots or the supposed pathologies of black American behaviour, are primarily responsible for racial inequality."

So, in a nutshell, structural or systemic racism. The acknowledgement of such a thing, however, flies in the face of  conservative thinkers like Bolick who, by the time CRT came about, had been saying for decades that America was post-race (yes, that shit started way before Obama was elected). Again, the thinking here is that as soon as slavery and then Jim Crow ended, the impacts of institutionalized racism ended, and certainly any potential for addressing that harm with laws or policy ended. The flip side of that coin, then, is that if you are failing, you have no one to blame but yourself.

It assumes that America is actually the Enlightenment-fueled utopia it was supposed to be, when in reality, from the framers on down to modern-day Libertarians, America's "patriots" have always cherry-picked ideas from the Enlightenment, referencing philosophers like Paine and Locke when it suits them, and ignoring the bits that don't fit with their worldview.

What the Libertarian approach to race also ignores, though, is that we still don't have equal opportunity, because of all those generations of legislated, legal racism. Large swathes of the population have not accumulated generational wealth, for example, because they were legally prevented from doing so for so long. Which means they're starting off with unequal opportunity right out the gate.

But of course acknowledging that would bring us right back to the conversation around privilege and structural racism, and erode the myth of meritocracy.