Contributor, The Volokh Conspiracy

In a recent symposium on Nancy MacLean’s book Democracy in Chains, Duke economist William Darity tries to defend her assumption that Brown v. Board of Education was not a constraint on democracy, and in the process responds to my argument to the contrary.

In her significantly flawed book, MacLean argues that economist James Buchanan and many other libertarians are anti-democratic and that their supposed opposition to Brown v. Board of Education helps prove the charge. MacLean’s assertions about Buchanan and other leading libertarian thinkers of the day supported segregation and opposed Brown is based on crude misreading of evidence and lack any serious foundation. Moreover, as critics (including myself) pointed out, it is a mistake to claim that opposition to Brown is an indicator of opposition to democracy, given that Brown and other anti-segregationist court decisions struck down policies enacted through the democratic process.

Darity attempts to defend MacLean’s claim, as follows:

Another one of Buchanan’s younger lieutenants, George Mason Law School professor Ilya Somin, affords a different, more subtle complaint about MacLean’s book. MacLean argues that Buchanan (and the Virginia School of Economics) envision a preferred American political world that is fundamentally anti-democratic. Somin says, no matter what one’s views of the ethics of the Supreme Court Brown v. Board school desegregation decision, it was intrinsically anti-democratic, because most Americans were not in favor of black and white children going to school together in 1954.

Somin almost has a point. It is an entirely credible argument that the Supreme Court’s appropriation of the right of judicial review (since the Marbury v. Madison decision) is intrinsically an anti-democratic power….

But the Court’s decision in 1954 took place in a decidedly undemocratic America. The regime of legal segregation excluded blacks from full political with pronounced effects on southern, and thereby national, policy outcomes. The Jim Crow system had driven blacks out of the southern electorate by the start of the 20th century. In Louisiana alone the 130,000 blacks registered to vote in 1896 had dropped to 1,342 by 1904; in Mississippi as many as 147,000 blacks were registered to vote in the postbellum period, but after 1890 that number declined to 9,000. In October, 1964 the NAACP estimated that there was a potential 12 million person black electorate, less than half of whom were registered by then. What democracy was the Supreme Court abrogating in 1954 by issuing the Brown decision?

Before going to the substance, it’s worth disposing of a side issue: far from being one of James Buchanan’s “lieutenants,” I never even met him or communicated with him. My only connection to him is that I am a libertarian who teaches at the same university, and my work is heavily influenced by public choice theory (to which Buchanan was a major contributor). But it is actually much more heavily influenced by left of center public choice scholars Anthony Downs and Mancur Olson. There are many more citations to Olson and Downs in my work than Buchanan. One could more plausibly say that I am one of Olson’s “lieutenants” than Buchanan’s, though in truth I never met either man.

More importantly, Darity also misstates my argument. I did not claim that Brown was a constraint on democracy “because most Americans were not in favor of black and white children going to school together in 1954.” Rather, it has that status because, in that decision, an unelected body (the Supreme Court) overrode the will of elected legislatures and removed the issue of school segregation from their control. Even if public opinion were to swing in favor of segregation at some future date, Brown and later decisions stemming from it would prevent legislatures from enacting segregation laws. That’s a very, very good thing! But democratic it is not.

I am, of course, well aware, that southern states in the 1950s unjustly denied the right to vote to nearly all African-Americans. I addressed this point at some length in my previous two posts on this issue (here and here); Darity presumably read at least one of them (based on the fact that he mentioned my writing on the subject). Unfortunately, he ignores what I said:

It is ironic that MacLean falsely accuses of James Buchanan and other libertarians of opposing Brown v. Board of Education, while also attacking them for wanting to put tight limits on democracy. A consistent majoritarian democrat should be against Brown. After all, that decision struck down important public policies enacted by elected officials and strongly supported by majority public opinion in the states that adopted them. In fairness, those states were not fully democratic because they denied the franchise to African-Americans. Had blacks been able to vote at the time, Jim Crow segregation would surely have been less oppressive. But a great many segregation policies would likely have been enacted nonetheless, since blacks were a minority and the white majority in those states was strongly racist. The Brown case itself actually arose in Kansas, where blacks did have the vote, but still lacked sufficient political clout to prevent the white majority from enacting school segregation.

In my most recent post on this subject, I added the following:

There is also a broader point to be made here. The position advocated by the civil rights movement in cases like Brown and ultimately endorsed by the Supreme Court was not that segregation should only be struck down in areas where African-Americans were denied the right to vote or those where the policy lacked majority public support. It was that such race discrimination is unconstitutional and should be invalidated by unelected judges regardless of how much support it might have from majority public opinion or elected officials. That is what ultimately makes Brown and other similar decisions constraints on majoritarian democracy, rather than judicial attempts to reinforce it.

Again, what the Court did was good. But it was also clearly a constraint on democracy.

Darity also argues that Brown was in line with majority national public opinion at the time:

Moreover, it is not clear that even a majority of white Americans opposed school desegregation in 1954. While a majority probably were opposed to rapid desegregation, it is not evident that a majority were opposed to the principle of having schools that black and white children attended simultaneously. Somin seems to be conflating white sectional sentiment in the south with white national sentiment. A national survey conducted by Roper 1950 found that forty-one percent of respondents agreed that black and white children should attend the same schools everywhere across the U.S., and another seventeen percent said they should attend the same schools everywhere except in the south.

For reasons noted above, my position does not rest on claims about the distribution of national public opinion in the 1950s. But the survey evidence Darity cites actually cuts against his position. The 1950 Roper poll he references found that only 41 percent of Americans supported school integration throughout the country, and another 17 percent supported it everywhere not yet support ending legally mandated school segregation in most of those areas where it actually existed at the time (though public sentiment certainly shifted in that direction later in the 1950s and early 1960s).

I will not, in this post, attempt to address the rest of the points Darity made in his piece. But I fear that some of them reflect the same lack of care with evidence that emerges in his response to me. For example, he claims that Buchanan and other like-minded libertarians wished for “a ferociously authoritarian society” and “an Eden of chaos and corporate rule.” This simply ignores Buchanan’s longstanding emphasis on the need for order in society, his emphasis on giving equal participation rights to all members of society (the idea at the heart of his “contractarian” approach to constitutionalism) and his (and many other libertarians’)argument that one of the reasons for curbing government power is to reduce rent-seeking and predation by business interests.