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July 22, 2013 8:34 AM Democrats and Republicans, the Record on Civil Rights

By Mark Kleiman

One of the standard glibertarian/Republican lies is that, in the Civil Rights struggles of the early 1960s, Republicans stood for equality and Democrats stood for racism. They’ve even managed to fool PolitiFact on the first half of the claim, ignoring the little detail that in 1964 the Republicans nominated an opponent of the Civil Rights Act of that year for President. Yes, back then there were still lots of racist Southern Democrats, and some liberal (and a bunch of moderate) Northern Republicans: you know, the same people the Red Team has spent the last thirty years purging from the Republican Party. In the meantime, all the [next generation of] Southern racists moved into the welcoming arms of the GOP, creating today’s lineup.

Even back then, a four-way breakdown (by party and region) shows that non-Confederate Democrats (despite the presence of Robert Byrd) were more supportive of civil rights legislation than non-Confederate Republicans, and that even Confederate Democrats were slightly better, on average, than the small number of Confederate Republicans.

One way to disentangle region from race is to look at state-level legislation. A column by Dan Morain of the Sacramento Bee retells the story of equal-housing legislation in California, backed by Pat Brown and opposed by Ronald Reagan because “property rights” and “freedom of association.” It passed the legislature but was overturned by an initiative, and the Brown Administration refused to defend the initiative in court; the Supremes eventually overturned it. Here’s Morain’s account of the passage of the bill:

The Assembly approved Rumford’s bill easily. The Senate struggled, passing it at the end of the session, with 22 Democrats voting for it, 12 Republicans joined by one Democrat against it, and five senators ducking the vote.

So, just as you thought, Democrats and liberals by and large did the right thing, while conservatives (including libertarians) and Republicans did the wrong thing. And it should come as no surprise that it’s the Republican majority on the Supreme Court that just voted to gut the Voting Rights Act, or that it’s the Republican majority in the House that will refuse to pass a replacement that would interfere with the Republican plan to retain a voting majority in the face of demographic change by preventing Democrats, including of course blacks and Latinos, from voting to the maximum extent the courts will hold still for.

Footnote Even before there was fair housing legislation, there was Shelly v. Kraemer. The federal courts held that the courts could not enforce restrictive covenants under which land was sold on the condition that it not be resold to blacks or Asians (or, in many cases, to Jews), reasoning that while the Constitution was silent as to private discriminatory action, enforcing a discriminatory contract would constitute “state action.” I’m not sure I know the official “libertarian” take on this. It would seem, at first blush, that the right of property ownership includes the right to sell the property, and, in doing so, to impose any condition on the buyer that the buyer will accept. In purely economic terms, in a racially divided society, a restrictive covenant solves a collective-action problem; the “taste for discrimination” is a taste like any other. So once you fetishize “private property” and “freedom of association” and ignore the history of race in this county, it’s hard to see why a bargain that individuals are free to make should be negated by the state’s refusal to enforce it.

I’m not arguing here that this should have been a hard case, only that the theory that makes it a hard case is, to that extent, a very dubious theory. Liberty can be threatened by private as well as by state action, and we need courts and governments to defend it on both fronts.

[Cross-posted at The Reality-based Community]

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Mark Kleiman is a professor of public policy at the University of California Los Angeles.