Take, for example, the common libertarian/conservative trope: “We believe in equal opportunity, not equal outcomes.” Most people, outside of the few and most ardent socialists, should believe that is a fair statement. But to say such a thing as a general defense of the status quo assumes that the current American system offers roughly equal opportunity just because Jim Crow is dead. Yet, that cannot possibly be true. Consequently, the strident libertarian argument against positive law and government writ large flies directly in the face of the historical black experience. The federal government protected the rights of freedmen and established schools during Reconstruction, only to abandon blacks to Southern white terrorism in the name of States’ Rights. Positive law destroyed Jim Crow, breaking up both formal and informal segregation in accommodations not just in the South where it was law, but throughout other parts of the country where it was standard practice within a supposedly free market. The federal government took an active role in criminal justice because local police often did not investigate anti-black terrorism and murders—or, if they did, sometimes testified in the murderers’ defense. And today, governments offer jobs with security and benefits in a job market that still disfavors blacks. This is not to say that blacks are particular fans of Big Government, but all of these government actions addressed problems in private society—ranging from indifference to murderous hostility—that should test anyone’s faith in an unfettered free market. This does not mean that libertarians should embrace positive law going forward, but simply to recognize Madison’s wisdom that “if men were angels, no government would be necessary.” #KevinAAFL
Posted on: Sun, 19 Oct 2014 00:49:53 +0000
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