Final Response
by David E. Bernstein
Reaction Essay
July 2nd, 2010
Sheldon writes, “David Bernstein remains unconvinced that a massive nonviolent direct-action movement could have broken the Southern white-supremacist business cartel without Title II. We’ll never know, of course. But we do know that incredible progress was being made.”
Richman is surely right that some progress was being made, especially outside the Deep South and in big cities, but I wouldn’t call it “incredible.” The South remained almost entirely segregated in 1964. While our discussion has focused on businesses, even the public schools were almost entirely innocent of desegregation, despite the Supreme Court’s ruling ten years earlier in Brown v. Board of Education. (Public school segregation was eventually broken primarily by the strings tied to federal funding, not by social activism.)
Beyond that, it’s a mistake to think that civil rights activism only started in the 1950s. African Americans and whatever allies they could muster had been fighting Jim Crow from the beginning, with little success. Given this decades-long struggle, it’s difficult to argue that African Americans should have exhibited additional patience and trust that Jim Crow—which Richman acknowledges was supported by explicitly and implicitly by state and local governments—would eventually be defeated social activism. This is especially problematic given that by the time social activism was successful, the body count of civil rights activists would likely have risen sharply.
Moreover, a significant reason that African Americans and their allies achieved the successes they did before the 1964 Civil Rights Act is that, for the first time since Reconstruction, they believed that the federal government was firmly on their side. Brown and other Supreme Court decisions supporting civil rights and civil rights activists helped, as did the reluctant support the Eisenhower and Kennedy administration gave to civil rights.
It’s true that Title II forced at least some business owners who wanted to keep their businesses segregated to integrate, a violation of strict libertarian principles. However, as I’ve noted before, the traditional common law rule, accepted at a time in American history when property rights were sacrosanct, was that many public accommodations must serve all comers. We were living in a second-best world in 1964, and given the available tradeoffs, I still prefer to have sacrificed a property or associational “right” of at best marginal historical importance, rather than to have forced African Americans to continue to live under the Jim Crow cartel for an indefinite period.
Relatedly, perhaps the ideal libertarian solution to the issue of public school segregation problem would have been to have had some sort of voucher program. But the realistic options at the time were either to have de jure segregation or de jure desegregation. The former forced African Americans into a position of inferiority; the latter, as law professor Herbert Wechsler pointed out in a famous essay critical of Brown, forced whites who objected to integration to have their children mix with blacks. I don’t have any hesitation in concluding that desegregation was the better outcome.
