At Balkinization, prominent legal historian Brian Tamanaha has an interesting post on progressivism, racism, and libertarianism. He acknowledges that libertarians, including me, are right to point out that early 20th century progressivism was tarred by racism. But he also argues that libertarians have their own historical skeletons in the closet, ones he claims are more difficult to shed than racism is for progressives:
With the resurgence of the use of the term “progressive” by liberals, libertarians have taken to reminding liberals that their turn-of-the-century progressive forebears were virulent racists. According to libertarians, when the social reformist impulse of progressivism mixed with the personal racism of progressives, a toxic brew resulted that led to the legal oppression of blacks and other racial minorities. “The ideas of race and color were powerful, controlling elements in progressive social and political thinking,” [David Southern] argues. “And this fixation on race explains how democratic reform and racism went hand-in-hand.” Libertarians even blame progressives for Jim Crow laws.
There is much truth in this charge......
But classical liberals have their own embarrassing grandparents. Herbert Spencer, the most influential advocate of laissez faire in nineteenth century America, opposed all government aid to the poor and infirm because it thwarted the biological law that the weakest should die. (He coined the phrase “survival of the fittest.”)....
While racism can be severed without loss from progressivism (and indeed has been), the doctrine that government activities should be strictly limited to protecting property, enforcing contracts, and maintaining order is built into libertarianism. Ludwig von Mises, the leading classical liberal of the early twentieth century (not a social Darwinist), opposed public education as beyond the proper scope of government, and he was against any unemployment benefits (because it encourages indolence). Von Mises recognized that the unemployed would suffer, but he felt this was justified because it would increase overall material wealth. Clear echoes of this argument are still made in libertarian circles today.
To the extent that Tamanaha merely wants to suggest that early libertarians such as Spencer made some very dubious arguments that modern libertarians should repudiate, he is surely right. I also welcome his acknowledgement, which echoes that of some other liberal scholars, of the close relationship between early 20th century progressivism and racism. But I take issue with some of his other points about both libertarianism and progressivism.
I. Progressivism and Racism.
I don’t believe that early 20th century Progressive racism is as easily sidestepped by modern liberals as Tamanaha suggests. As I explained in my earlier post on the subject, “The racist elements of Progressive ideology don’t prove that economic interventionism is racist by nature..... Still less do they prove that modern left-wingers are necessarily racist as well. But they do undercut claims that racism is primarily a product of the ‘right’ and that economic leftism and racial progress necessarily go together.” The point is not that modern liberals are racists (the vast majority are not), but that many of them are wrong to believe that racism is mostly or exclusively a product of “the right.”
There is a second, even more important, lesson here as well. It is that concentrating economic power in the hands of government is unlikely to benefit unpopular minority groups and the politically weak more generally. Rather, government intervention is likely to benefit the politically influential at the expense of the weak, which usually includes the poor, as well as disliked racial, religious and other minorities. As co-blogger David Bernstein notes, “[a]s a matter of American history, activist government was often used to oppress minority groups. As a matter of world history, the record of “activist government” with regard to minorities is even worse. And as a matter of political theory, it’s not at all clear why one would expect public policy in a democracy to necessarily be helpful to minority groups.” Progressive-era economic regulations that victimized blacks and immigrants are just one of many historical examples.
This is the really important lesson of early 20th century racism for modern progressives. And it’s one that few of them have fully assimilated. Indeed, it’s not clear that they can assimilate it without seriously questioning one of modern progressivism’s central commitments: the idea that there should be few or no constitutional constraints on government’s power to control “economic” activities.
II. Libertarianism and “Hard-Heartedness.”
Tamanaha is indeed correct to note Herbert Spencer’s social Darwinist “hard-heartedness,” which is not defensible. On the other hand, few if any modern libertarians either oppose all charity or rely on social Darwinist arguments about the “survival of the fittest” in any significant way. David’s work on the Lochner era shows that social Darwinism was a much less important element even in early 20th century libertarian legal thought than was traditionally believed. For example, contra Oliver Wendell Holmes, it is simply not true that the justices who decided Lochner did so under the influence of social Darwinist ideas.
Few modern libertarians even cite Spencer or other social Darwinists at all. By contrast, modern liberals do often cite early 20th century progressives as inspirations for their ideology. And until recently, few of them paid much attention to the more unsavory aspects of early 20th century Progressivism (though I should add that some far left radical scholars, such as Gabriel Kolko, were much more critical).
Tamanaha is also correct to note that many modern libertarians oppose welfare statism across the board for reasons unrelated to social Darwinism. He is wrong, however, to suggest that this position is an essential element of libertarian thought. Such prominent libertarian scholars as Milton Friedman (inventor of the negative income tax), and F.A. Hayek argued that libertarianism is compatible with a strictly limited welfare state. It is a coherent position to argue that property rights and economic liberties should get strong protection — far stronger than most liberals would permit — without concluding that they always outweigh all other considerations.
While my own views are close to the Hayek-Friedman position, I do not believe that more categorical versions of libertarianism are morally disreputable or something that modern libertarians should be embarrassed about. There is a serious case that the functions currently performed by the welfare state are likely to be better done by private organizations. Historian David Beito has shown how the rise of the welfare state destroyed many private mutual aid organizations that often did a better job of providing social services to the poor without creating perverse incentives. You don’t have to be either a social Darwinist or “hard-hearted” to endorse Beito’s position. Indeed, Arthur Brooks’ research shows that opponents of government welfare on average donate a far larger proportion of their income to charities that benefit the poor than supporters do.
As for public education, its extremely poor record over the last several decades and its repeated use for indoctrination suggests that libertarians have no reason to apologize for Mises’ views. To put it a different way, libertarians can support educating the public without supporting public schooling. As E.G. West describes in his classic Education and the State, education levels in Britain and the United States were rapidly rising before the introduction of public schooling, which was largely motivated by a desire to indoctrinate students in government-approved religious and political views. In the words of John Stuart Mill, an important intellectual forebear for both libertarians and progressives, “A general State education” promotes whatever view “pleases the predominant power in the government.... in proportion as it is efficient and successful, it establishes a despotism over the mind, leading by natural tendency to one over the body.”
UPDATE: I am having some difficulties eliminating certain technical problems in this post. I hope to get them resolved soon.
UPDATE #2: The technical issue has been solved.
UPDATE #3: Various people, including my wife and David Bernstein, have pointed out that I was too quick to endorse Tamanaha’s critique of Herbert Spencer. As Damon Root explains here, Spencer was not actually opposed to private charity, and many of the other standard charges against him are also based on distortions of his work:
At the heart of [historian Richard] Hofstadter’s [famous] case [against Spencer] is the following passage from Spencer’s famous first book, Social Statics (1851): “If they are sufficiently complete to live, they do live, and it is well they should live. If they are not sufficiently complete to live, they die, and it is best they should die.”
That certainly sounds rough, but as it turns out, Hofstadter failed to mention the first sentence of Spencer’s next paragraph, which reads, “Of course, in so far as the severity of this process is mitigated by the spontaneous sympathy of men for each other, it is proper that it should be mitigated.” As philosophy professor Roderick Long has remarked, “The upshot of the entire section, then, is that while the operation of natural selection is beneficial, its mitigation by human benevolence is even more beneficial.” This is a far cry from Hofstadter’s summary of the text, which has Spencer advocating that the “unfit...should be eliminated.”
Similarly, Hofstadter repeatedly points to Spencer’s famous phrase, “survival of the fittest,” a line that Charles Darwin added to the fifth edition of Origin of Species. But by fit, Spencer meant something very different from brute force. In his view, human society had evolved from a “militant” state, which was characterized by violence and force, to an “industrial” one, characterized by trade and voluntary cooperation. Thus Spencer the “extreme conservative” supported labor unions (so long as they were voluntary) as a way to mitigate and reform the “harsh and cruel conduct” of employers.
Roderick Long has more information on Spencer’s views on charity here.
Thank you to The Volokh Conspiracy for allowing me to guest blog this week about economic liberty and the law. 
