Legal Commentary

Conservatism, Libertarianism, Civil Rights, and ?Circumstances?

By Ilya Somin

In a National Review post discussing the civil rights laws of the 1960s, Roger Clegg writes that ?Conservatism is superior to libertarianism because it is less ideological and more readily acknowledges that circumstances matter.? Whatever the general validity of this claim, Clegg picked a very poor example to illustrate it. 

As co-blogger David Bernstein has pointed out, numerous prominent conservatives, including many associated with National Review, actively defended racial segregation throughout the 1950s and 60s. They supported Jim Crow not only on ?states? rights? grounds but also because, as a 1957 National Review editorial put it, whites were ?the advanced race? and could deny the franchise to blacks in order to protect ?civilization.? 

By contrast, as David also notes, most leading libertarian writers of the time ? including Milton Friedman and Ayn Rand ? were on the other side of this issue. Rand, for example, wrote that ?[t]he Southern racists? claim of ?states? rights? is a contradiction in terms: there can be no such thing as the ?right? of some men to violate the rights of others.? She also denounced racism as ?the lowest, most crudely primitive form of collectivism.?

Many 1960s libertarians can reasonably be criticized for underemphasizing the importance of ending segregation relative to other issues. But their record on these matters was considerably better than that of most conservative intellectuals of the day. Even if you think that libertarians were wrong to be skeptical of restrictions on purely private sector discrimination, the conservatives of the time were no better. And unlike in the case of the conservatives, libertarian opposition to private sector anti-discrimination laws was motivated by general support for a right of free association, whereas most of the conservative opponents were perfectly willing to support Jim Crow laws forbidding blacks from voluntarily associating with whites.

Some of the conservative support for segregation was simply a product of the racism endemic throughout much of society at the time. It is too often forgotten that many segregationists were big government liberals on economic issues, such as George Wallace and the recently departed Bob Byrd. But some was also linked to specific weaknesses of conservatism, such as excessive deference to tradition.

Roger Clegg, today?s National Review editors, and other modern conservatives should not be blamed for the mistakes of their predecessors fifty years ago. But black civil rights is not a good issue to focus on if you want to assert that conservatism is superior to libertarianism.

On the more general question of adjustment to ?circumstances,? one of the main reasons why libertarians favor strict limits on government power is precisely because the private sector has greater ability and incentive to acquire knowledge about varying local circumstances and evaluate it in a rational way. Many conservatives emphasize these points when it comes to economic regulation, but tend to forget about them when it comes to the cultural and ?moral? regulation that they often favor. Everyone agrees that ?circumstances matter.? The real issue is which institutions are likely to do the best job of evaluating them and making needed adjustments.

Full post as published by The Volokh Conspiracy on June 30, 2010 (boomark / email).