Lawrence Glickman is the Stephen and Evalyn Milman Professor in American Studies and History at Cornell University. He is the author or editor of four books: A Living Wage: American Workers and the Making of Consumer Society (1997); Consumer Society in American History: A Reader (1999); The Cultural Turn in U.S. History: Past, Present, and Future (2008); and Buying Power: A History of Consumer Activism in America (2009). Some of his recent online writing includes “Donald Trump and the Anti-New Deal Tradition,” “Everyone Was a Liberal,” and “The Conservative Con that Gave Us Trumpcare.”
In Democracy in Chains, Nancy MacLean insightfully examines an understudied vector of the modern conservative movement She frames her valuable contribution as an origins story. In MacLean’s telling, her protagonist, the Nobel-prize winning economist and founder of “Public Choice” theory, James M. Buchanan is “the man who started it all” (xxi). As she writes,
In an attempt to find that master plan, to understand whose ideas were guiding this militant new approach, others attempted to link what was happening to the ideas of the celebrity intellectuals of the so-called neoliberal right….especially such avid promoters as Milton Friedman, Ayn Rand, and Friedrich A. Hayek. But such inquiries ran aground, because none of the usual suspects had sired this campaign. The missing piece of the puzzle was James McGill Buchanan (xviii).
I believe there are a number of problematic assumptions here: First, the rise of modern conservatism is, in my view, not so much the outcome of a “master plan” that was “sired” by one person, or even several people, but the product of a variety of long-term forces. Second, by systematizing and formalizing ideas already in circulation, intellectuals as frequently followed as led the way in promoting modern conservatism. The people that Hayek called “second hand traders in ideas” (83)—pundits, politicians, ministers, lobbyists, business leaders—often succeeded in popularizing or sometimes developing frameworks for understanding the world that were only later theorized. Third, a good number of the ideas that MacLean treats as new can be backdated or shown to have multiple authors. For example, the idea that any expansion of the welfare state was “socialism” and that such socialism “was a sentimental and dangerous error,” while certainly associated with the so-called Chicago School, was not exclusive to it (36). Indeed, this was the refrain of the anti-New Dealers from 1934 onward. Similarly, the notion that it was a delusion that “socialism and freedom” could be combined began long before Hayek’s Road to Serfdom was published in 1944. Indeed, it was one of the reasons for the popular reception of his Reader’s Digest piece, which was reworked in an American direction (39). Finally, MacLean’s claim that “the old Republican Party” has been hijacked in the last two decades by the Koch brothers and that it “exists no more,” suggests there was a time in the relatively recent past when the Party rejected extremism. But this is to underplay important points of continuity from Joe McCarthy to Barry Goldwater to Ronald Reagan to Donald Trump (xxvii-xxviii).
There are also issues of periodization. While acknowledging and indeed brilliantly tracing a longer-term history going back to John C. Calhoun and Jim Crow disenfranchisement, MacLean sometimes seems to suggest that the conservative backlash began in response to the Brown V. Board decision. But James J. Kilpatrick’s concern about federal “dictation” in the wake of Brown was merely a new twist on a popular phrase that had been used to decry the New Deal almost from its inception (19). Similarly, William Buckley’s call in 1964 for a “counter-revolution” can be seen as yet another stage in the ongoing fight against the New Deal order, which had been characterized in this way since the 1930s (88).
MacLean might be correct that the “assault on American democratic government” in recent decades is “’something never seen before in American history” (xxx). And she makes a persuasive, important and detailed case not just about the intellectual and organizational contributions of James M. Buchanan to modern conservatism but about the ways in which economics, politics, region and race are inextricably, if not always explicitly, connected.
In my view, the question of democracy lies at the heart of MacLean’s book, and it fuels many of her critics. For MacLean, Buchanan’s movement was characterized by “stealth” (xx) and a disregard, indeed, a deep suspicion of democracy. I’ll come back to how democracy operates in MacLean’s text but, first, I want to discuss how it has been misused by some of her libertarian-oriented critics. They suggest that MacLean is actually in agreement with Buchanan (and them) in supporting constraints on democracy, and they mobilize the Civil Rights movement as proof of MacLean’s hypocrisy, since the key turning point of her book was an undemocratic decision by the US Supreme Court. But not all constraints on majorities are necessarily anti-democratic. MacLean implicitly makes what would appear to be a common sense distinction between the Buchanan’s designs and the Koch brothers’ plans to short-circuit majority will and the protections for minorities that make democracy flourish. By highlighting the importance of “individual rights” and “national democratic standards for fair treatment and equal justice under the law” as well as the importance of protecting “those calling on government to protect their rights to provide for them one way or another,” she indicates that her notion of democracy is not limited to majority rule (xiv-xv). We might call this the difference between democratic justice and democratic domination.
In July, shortly after the George Mason Law Professor, David Bernstein, published on the Volokh Conspiracy blog one of his several columns critiquing MacLean’s book, he changed the wording of the final full paragraph. Here is the amended version:
MacLean’s primary criticism of Buchanan is that his work on constitutional economics was fundamentally anti-majoritarian and anti-democratic. It’s illogical at best counter-intuitive to surmise that he came to his anti-majoritarian, anti-democratic views as a hostile response to an anti-majoritarian, anti-democratic supreme court decision.[i]
I believe he deleted the word “illogical and replaced it with “at best counter-intuitive” in response to a Twitter exchange that Richard Yeselson and I had with him.[ii] Bernstein’s edit was minor and, I believe, still misleading, reflecting a problem with many of the critiques of Democracy in Chains.
A number of the critics offer a problematic conception of democracy as simple majoritarianism, especially in the context of the Brown v. Board decision and the Civil Rights movements as a whole. Bernstein, Brian Doherty, and Ilya Somin have suggested that the Brown decision was anti-democratic in two senses: first, that the Supreme Court is not a democratic institution and second, that the decision went against the will of the majorities in the Jim Crow states. Doherty, for example, says that the Supreme Court overruled a “democratic outcome” in its Brown decision.[iii]
In reality, people like Strom Thurmond and many other white supremacists were perfectly capable of making undemocratic, antidemocratic, and minoritarian arguments against the Brown decision and the broader Civil Rights movement. Southern politicians depicted themselves and their region as an embattled minority that needed to be “more powerful and aggressive” in making political claims, as a Hattiesburg newspaper put it in 1958.[iv] Moreover, the idea that it was somehow logically incoherent to oppose Brown, even attack the Warren Court, and yet be an aggressive constitutionalist is absurd. Critics of the decision wished to maintain a racial caste system and white supremacy — not democracy—which is why they disenfranchised black voters and staged “white primaries” until these were declared unconstitutional. These critics had reason to feel let down by the Supreme Court and by lower courts too, which had, from Plessy v Ferguson to Brown, upheld segregation. But they were not disappointed because they wanted democracy. This is why Bernstein’s substitution of “counter-intuitive” for his crossed-out “illogical” still doesn’t make sense.
These critics of MacLean depend on a problematic understanding of democracy as pure majoritarianism, which they seem to take to be democracy itself. And because MacLean tracks and decries anti-democratic trends (school “choice,” disenfranchisement, secretive forms of governance) that arose after the Brown v. Board decision and which have accelerated in the last few decades, they suggest that her support for democracy is somehow undermined by the heroes of her book. But the question is what kinds of constraints on democracy are legitimate and consistent with social justice? What Harry Truman’s Vice President, Alben W. Barkley, called in 1950 “mak[ing] democracy more universal” by promoting a policy of anti-discrimination, suggests a different meaning for democracy from the pure majoritarianism seemingly espoused by MacLean’s critics.[v] Perhaps, as Somin writes, “a consistent majoritarian democrat should be against Brown.”[vi] But Civil Rights activists did not take democracy to be simple majoritarianism, even in areas like Clarendon County, SC, where African Americans were in the majority. They believed not only in one person/one vote and in constitutional protections for minorities but in the necessity for all people to have a say in the decisions that affected their lives. For Martin Luther King, Jr., “the essence of democracy toward which all Negro struggles have been directed” is that “multiracial people” must be “partners in power.”[vii] Democracy meant being a “partner in power,” not being overpowered by a majority or, in the case of Clarendon County and many other parts of the South, by a white minority that gained power through Jim Crow, disfranchisement, and terror. King, Rosa Parks and the thousands of black participants in the Civil Rights movement believed deeply in democracy, and they said the Brown decision would extend and realize, not constrain, it. This is why William L. Patterson, the Executive Secretary of the Civil Rights Congress, wrote to Walter White after the NAACP’s victory in Brown v. Board of Education to call the decision “a victory for democracy.” A profile of Thurgood Marshall shortly after the Brown decision in the Pittsburgh Courier said that his task was “making democracy work.”[viii] It was the example of the Civil Rights movement that led leaders of Students for a Democratic Society to highlight the phrase “participatory democracy.”
A roundup of responses to Brown by NAACP and other Civil Rights officials included frequent comments like the following by Matt Anderson, a Democratic candidate for the Pennsylvania General Assembly: “My hope now is that the Congressmen follow the precedent and pass some good civil rights legislation. Then our country will be a real democracy.”[ix] Waites Waring, the South Carolina Judge who dissented in the South Carolina Schools case, similarly called the case a step toward making the country a “true democracy.”[x]
It is important to note that in the Brown decision, the Supreme Court upheld the following NAACP argument from the Briggs case: “In a democracy, citizens from every group, no matter what their or social or economic status or their religious or ethnic origins are expected to participate widely in the making of important public decisions.” This is a notion of participatory democracy in which all have access to power making and, I would argue, it is also a rejection of majoritarianism. Democracy, in this view, involves developing the “capacities” of all citizens, which “cannot be developed properly…if the students are segregated from the majority by law.” So the Court was invoking a democratic justification for its decision—a justification provided by the plaintiffs.[xi] Civil rights advocates stood for democratic justice and rejected domination in all forms, including that of the majority over the minority.
Nearly a decade after the Brown decision, in his “Letter from a Birmingham Jail,” King, highlighting the connection between minority rights and democracy, wrote that, “An unjust law is a code inflicted upon a minority which that minority had no part in enacting or creating because it did not have the unhampered right to vote. Who can say that the legislature of Alabama which set up the segregation laws was democratically elected? Throughout the state of Alabama all types of conniving methods are used to prevent Negroes from becoming registered voters, and there are some counties without a single Negro registered to vote, despite the fact that the Negroes constitute a majority of the population.” This was not an argument against democracy, nor an argument for majoritarian democracy, but an argument for just democracy.
Somin, like Doherty, also highlights the Topeka, Kansas case, one of five rolled into Brown, as the most important. “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.” I have challenged Somin’s claims on twitter and he has stuck by his guns, but only, I think, by holding to a narrow conception of what “arose” means.[xii] The Brown case combined five separate Civil Rights cases, the most important and earliest of which was Briggs v. Elliott, which originated in Clarendon County, SC. Thurgood Marshall and the NAACP legal defense team made a strategic decision here, which is well explained by Richard Kluger in his classic history of the Brown decision, Simple Justice. As Kluger writes, discussing the political difficulty for Marshall of the Clarendon County case: “He would be asking not that a relatively few Negroes be admitted to the all-white schools of a prominently white community, but that the white children be mingled among the predominantly black enrollment in a county that was more than 70 percent African American. It would have been hard to find a more perilous test case. How much wiser it would have been to launch the attack on segregation in a border state, a Southern city, or any community where the white reaction would be less dire than in the old plantation country of rural Clarendon County in the Carolina black belt.”[xiii] Hence Topeka, Kansas made more tactical sense than Summerton, SC. Attacking segregation in a variety of places, including a state outside of Dixie helped their cause.
Finally, it is important to raise questions about Michael Munger’s claim that “desegregation … was imposed, at the point of a bayonet, at the command of an anti-majoritarian institution, the Supreme Court.”[xiv] This language suggests that the might of the federal government and the states lay firmly behind the effort to quickly comply with Brown. The history of desegregation in the South shows the opposite to have been true. Desegregation was rarely “imposed” and then only belatedly and incompletely. For a long time after Brown, Civil Rights activists were more likely to face Bull Connor’s hoses attacking them than to be protected by the bayonets of federal troops.
Like these critics, I believe that Maclean could have done a better job clarifying what she means by “democracy” throughout the book, and she emphasizes conservative efforts to undermine the will of the majority as a key tactic of Buchanan and his followers, to be sure.
My own view is that, leaving aside Buchanan for a moment, the broader conservative movement has long been more agnostic and instrumental than hostile to democracy. After World War II, for example, advocates of “free enterprise,” sought to win over public opinion with a sales campaign that would result in an elected government less hostile to the interests of big business than they perceived the New Deal as being. And many of the assumptions of these advocates became part of the American common sense in the Age of Reagan. But there have been other strands of anti-democratic thought as well, many of which predate Buchanan. Clarence Manion, the conservative Dean of Notre Dame viewed “democratic government as particularly dangerous” and was one of many anti-New Dealers who regularly liked to remind people that the United States was a “republic, not a democracy.”
Another argument frequently made by conservatives in these years was that true democracy inhered in the free market rather than the ballot box. To make this claim was to take the politics out of democracy. “We glory in democracy,” as Claude Robinson the Chairman of the Board of the Opinion Research Corporation said in a 1958 address to the National Association of Manufacturers. “The free market is democracy in its purest form, for anyone to vote his coin according to his own private preferences and he can vote whenever and as often as he chooses.”[xv] This thin conception of consumer democracy is another way of limiting robust political democracy, by making it unnecessary.
Another connection to MacLean’s story of region, race, economics and conservatism is that many critics of the New Deal figured businessmen as an oppressed class, the “whipping boy” of the state, in their favored expression, and the business firm as being unfairly “shackled.” These concerns about creeping statism often included Civil Rights issues as part and parcel of a dangerous cluster of forces limiting their freedom. In 1950, for example, Harry McDonald, a candidate for Florida’s First Congressional District seat, “hammered at deficit spending, the FEPC, and socialized medicine.”[xvii] Thurman Sensing, the leader of the Southern States Industrial Council, dismissed Senator Paul Douglas in 1959 as a “spokesman for the spenders and the new abolitionists.”[xviii] Even among business conservatives, the attack on the New Deal was often racialized. In 1960, Sensing called the South “the whipping boy of the nation,” using the same language that had often been applied to business under the New Deal.
A longer-term examination of some of the forces that MacLean describes suggests that Buchanan and his movement built on rather than invented many of the issues. Buchanan might better seen as an adapter, drawing on older lines of discourse. This is not to suggest that there is nothing new under the sun, or that a story of continuity can’t also have key turning points and inflections. Nancy MacLean’s book has identified a crucial, heretofore unexamined, and particularly timely thread in the history of the conservative counter-revolution.
[i] David Bernstein, “Yet more dubious claims in Nancy MacLean’s ‘Democracy in Chains’,” Washington Post, Jul 6, 2017. https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/07/06/yet-more-dubious-claims-in-nancy-macleans-democracy-in-chains/?tid=ss_tw&utm_term=.394bb44c80cd
[iii] Brian Doherty, “What Nancy MacLean Gets Wrong About James Buchanan,” Reason, Jul 20, 2017. http://reason.com/archives/2017/07/20/what-nancy-maclean-gets-wrong-about-jame
[v] Louis Stark, “Barkley Predicts a `Fair’ Labor Law,” New York Times, May 27, 1950: 8.
[vii] This quotation is from José-Antonio M. Orosco’s important 2001 article on King and Democracy from the Journal of Social Philosophy http://onlinelibrary.wiley.com/doi/10.1111/0047-2786.00102/abstract. I take the members of the Mississippi Freedom Democratic Party to be making the same point in 1964 when they called for “economic as well as political democracy.” Quoted in John Dittmer, Local People: The Struggle for Civil Rights in Mississippi (University of Illinois Press, 1995), p. 428.
[viii] Marguerite Cartwright, “A Young Man Dedicated: Thurgood Marshall Fights the Good Fight for the NAACP And Civil Rights,” Pittsburgh Courier, Aug 28, 1954, SM4. https://search.proquest.com/cv_1703402/docview/202361145/22D445B5D7154D11PQ/1?accountid=10267
[ix] “Statements of Local NAACP Officials,” Pittsburgh Courier, May 22, 1954, 15. https://search.proquest.com/cv_1703402/docview/202324407/D4EE092B3C1D4E5CPQ/2?accountid=10267
[xiii] Richard Kluger, Simple Justice: The History of Brown V. Board of Education and Black America’s Struggle for Equality (Alfred A. Knopf, 1976), 303.
[xiv] Michael C. Munger, “On the Origins and Goals of Public Choice: Constitutional Conspiracy?” Jun 29, 2017. http://www.independent.org/issues/article.asp?id=9115
[xv] This speech and be found in the “Free Enterprise” files at the Hagley Museum and Library.
[xvi] In The Calculus of Consent, Buchanan and his co-author, Gordon Tullock, write that. “Both the theory of democracy and the theory of the market economy are products of the Enlightenment, and, for the eighteenth-century philosophers, these two orders of human activity were not to be discussed separately.” http://files.libertyfund.org/files/1063/Buchanan_0102-03_EBk_v6.0.pdf (quotation on p. 24).
[xviii] Thurman Sensing, “Coalition is Bad for Liberals, Rome News-Tribune, Jan 26, 1959, 3. For an excellent recent history of the SSIC, see Katherine Rye Jewell, Dollars for Dixie: Business and the Transformation of Conservatism in the Twentieth Century (Cambridge University Press, 2017).