Slavery, it is sometimes said, is America’s original sin. A society conceived with the idea of fleeing a corrupt continent found, within a few years, that it had brought over and even expanded some of that continent’s worst flaws. The federal holiday in honor of Dr. Martin Luther King, Jr. commemorates a man who was perhaps the most important in ending legalized separation of the races. But how the U.S. came to be in need of a martyr such as King is not a story that is as well-understood as it should be.
The 13th, 14th and 15th amendments to the U.S. Constitution were passed quickly after the Civil War, and were designed to confer on freed slaves full legal equality. But very quickly after Appomattox white racist opponents of interracial commerce in the South moved to prevent blacks from obtaining control over property, engaging in contracts and taking advantage of the other aspects of economic freedom that are so critical to giving people control over their own destinies. The years 1865-8 saw the enactment of what came to be known as the Black Codes, laws that often began by promising that “freedmen, free negroes and mulattoes” would have full contracting and property rights, before going on to carve out massive exemptions disadvantageous to blacks. Here are excerpts from Mississippi’s
Section 5. Every freedman, free negro and mulatto shall, on the second Monday of January, one thousand eight hundred and sixty-six, and annually thereafter, have a lawful home or employment, and shall have written evidence thereof as follows, to wit: if living in any incorporated city, town, or village, a license from that mayor thereof; and if living outside of an incorporated city, town, or village, from the member of the board of police of his beat, authorizing him or her to do irregular and job work; or a written contract, as provided in Section 6 in this act; which license may be revoked for cause at any time by the authority granting the same.
Section 6. All contracts for labor made with freedmen, free negroes and mulattoes for a longer period than one month shall be in writing, and a duplicate, attested and read to said freedman, free negro or mulatto by a beat, city or county officer, or two disinterested white persons of the county in which the labor is to performed, of which each party shall have one: and said contracts shall be taken and held as entire contracts, and if the laborer shall quit the service of the employer before the expiration of his term of service, without good cause, he shall forfeit his wages for that year up to the time of quitting.
This practice of requiring that freed blacks engage in economic activity contingent on licensing by the authorities was in fact a way to maintain control over their activities, so as to alter their terms of trade with respect to whites and therefore force them back into subservience. In the modern context it is well-known that such licensing practices lead to what is now called “rent-seeking,” which enables state officials to reward their supporters and punish their opponents in part by limiting the trading opportunities of the latter. (And this was far from an exclusively Southern phenomenon, as many Northern states imposed similar restrictions. Ohio, for example, had enacted similar legislation in 1804.)
The Black Codes did not last long, with Reconstruction authorities annulling them in short order. And there is some evidence that during this time, gains from trade motivated interracial commerce despite centuries of hostility and fear. Integrated rail cars were used by some adventurous entrepreneurs and the agricultural income accruing to black workers rose sharply.
But the liberal moment did not last. Owing to violent protests and the unwillingness of a weakened Ulysses S. Grant Administration to use federal troops to restore order amid widespread violence, Reconstruction ended. Racists quickly took control of Southern governments and founded the far more widely known restrictions on interracial commerce known as Jim Crow, which limited blacks’ ability to contract and to sell their agricultural produce and often required
that businesses segregate. (Rosa Parks, recall, was defying a law that required that municipal buses separate the races.) It was the state interfering in private contracting and telling entrepreneurs how to run their businesses that was the most compelling feature of the segregated South, although it was restrictions on blacks voting that drew the most public attention.
Left to their own devices, people are often driven by commercial opportunities to transact across racial lines. This was no less true in the American South than anywhere else. This story – of early attempts to “bind up the nation’s wounds
” through trade, frustrated ultimately by racist rent-seekers gaining control of the state – is not well-known. Robert Higgs has written a book outlining the story
, and some of it is also found in Richard Epstein’s Forbidden Grounds: The Case Against Employment Discrimination Laws
. Indeed, there is much quiet heroism in resistance to segregation by ordinary people pursuing their interests. Rosa Parks is justifiably famous, but few have heard of Sputnik Monroe
, a white pro wrestler who helped desegregate Memphis. For example, he often wrestled in an arena with a small section in the highest rows reserved for blacks. He made an effort to appeal to black fans, and ultimately bribed arena employees to get them to undercount blacks arriving through the doors, thus forcing them to expand out of the segregated section and into “white” seats. In this, he resembles (although gets less credit than) the Freedom Riders, who in part were fighting laws requiring segregated transportation. There were undoubtedly many Sputnik Monroes whose names are lost to history, fighting an opportunity-destroying edifice erected because people with particular preferences violently held had gained control of the state. The liberal (in the traditional, i.e. free-trade sense) society is the greatest enemy of tribalism. People are black, white, red and yellow but money is all green, and that foundation of common interest tends to frustrate the desires of those who want their environments to remain racially (or religiously or ideologically) pure. Only by engaging in political pressure and achieving state-mandated rules can such purists frustrate this process.
In that sense Dr. King’s legacy, at least as refracted through President Lyndon Johnson and the contemporary Congress, is mostly but not entirely positive. His fight against state racism and restriction of voting rights, often at literal threat to his own life, is on its own enough to qualify him as a hero. But the legacy of the civil-rights legislation, which limited the right of private employers and landlords to do something competition would probably force most of them to abandon anyway – racially discriminate – set the table for decades of acrimonious litigation over “affirmative action,” “quotas” and other vague notions. Once the state got into the bean-counting business – unavoidable if “anti-discrimination” laws were to be enforced – conflict over what was a bean and what wasn’t and how ultimately to count them was inevitable. These laws have inevitably brought about a presumption among tribal pressure groups that all ethnic differences in labor-market outcomes are due to “discrimination,” and have made it almost impossible for people to agree on what the discrimination-free society will ultimately look like.
It would ultimately have been better in the aftermath of the March on Washington to mandate equal access for all races to state-provided resources, particularly education, and then to let the market allow people to pursue their interests. In other words, to prohibit the state from discriminating, but to let individuals trade freely, whether they wish to keep minorities out or (as now) to court them avidly in the cause of “diversity.” Instead, we have a society where zero-sum litigation and legislation drives most discussion of tribal tensions, and that is a shame. The more closely we approximate a truly free society, the less tribal animus we will have.