Liberalism, Democracy

Hutt on Constitutional Constraints as Protection for the Politically Weak

Nancy MacLean’s Democracy in Chains has been the gift that keeps on giving. Rather than pile on yet another specific error in the book, I want to briefly address one of the overall themes through a specific thinker and context she raises.

As co-blogger Mike has pointed out, MacLean is an unreconstructed majoritarian throughout the book. The whole problem with public choice is that it wanted to place democratic majorities in chains. She is unwavering in her commitment to that claim. As many have noted, myself included, it’s a strange position to take for a progressive who presumably supports the Supreme Court decisions in Brown, Loving, Roe, and Obergefell, all of which overturned the work of democratic majorities in a large number of states.

MacLean also charges public choice with racism, as she sees its desire to chain those majorities as a way of locking in the privileges of the rich, white, elite by denying the progressive forces of history on the side of the majority from creating the policies and institutions they wish to. She also argued that the context of 1960s Virginia was one in which it was easy for Buchanan and others to signal that racism in subtle ways, hence the way she sees his argument for competition in schooling as opposition to Brown.

At one point, she invokes Buchanan’s invitation to the South African economist W. H. Hutt to spend the 1965-66 academic year at UVA as evidence for her broad thesis by pointing to Hutt’s work that was critical of unions. She sees this as evidence of Buchanan’s defense of the privileges of wealth. What she fails to note, as several others have pointed out, was that Hutt was a vocal and early critic of apartheid and compared it to the segregation in the US south. And part of his criticism of unions was the role that white unions had played in both privately coercing black workers in South Africa and then using the power of the state to put apartheid into law. If Buchanan was really such a racist and defender of segregation, why would he invite Hutt and have him speak on those issues?

During the winter he was at UVA, Hutt published an article entitled “South Africa’s Salvation in Classic Liberalism” in Il Politico (Vol. 30, No. 4, December, pp. 782-795). What’s particularly interesting in light of MacLean is this paragraph where he discusses the origins of apartheid (emphasis mine):

But very soon in the development of the mining industry, fears began to arise that the Africans might one day claim the right to perform many of the tasks which had hitherto been the preserve of the Whites. It is hardly surprising that, in the early years of the present century, the full strength of the white labour union movement came to be used to check a gradual dissolution of customary obstacles to African employment in work involving skill or responsibility. By means of violent strikes, the labour unions demonstrated the private coercive power which the State had allowed them to acquire. The white miners formed an important portion of the electorate; and far from the State taking steps to suppress private coercion, before long it substituted its own coercion for that of the labour union, through the Mines and Works Act of 1911. Known as the first “Colour Bar Act”, it was the first to embody explicitly the principle which has recently become known as “job reservation.” It illustrates, therefore, (a) what the “classic liberal” must regard as the reprehensible passivity of the State when confronted with private coercion by a politically favoured group, and (b) the tendency of the State to discriminate directly in favour of the politically strong (whether majorities or minorities) in the absence of effective constitutional restraints.

What’s worth noting here is that Hutt’s case for constitutional constraints is that they prevent the powerful from preying on the weak, which is precisely the opposite of MacLean’s view. What enabled the powerful whites in South Africa to use the state to oppress the blacks was not the existence of constitutional constraints but their absence. In both of his final observations there, Hutt takes the side of the politically weaker and oppressed blacks against the powerful whites. This is certainly not the picture of libertarianism that MacLean draws in her discussion of Buchanan, public choice, and the Koch brothers.

This is the scholar Buchanan chose to visit UVA in the mid-1960s: a long-time opponent of apartheid who had been hounded for his views and who understood that public choice was an effective tool to prevent the exploitation of the politically weak by the politically powerful. This perspective is consistent with public choice’s description of the role of constitutional rules and Buchanan’s life-long commitment to a world without discrimination or domination.

Nancy MacLean’s overarching narrative of public choice’s call for constitutional constraints as a road map for the powerful to acquire and maintain power over the powerless gets matters completely backward. Hutt’s invitation to Buchanan’s Jefferson Center and the talks he gave and the papers he published while there are further evidence of her complete misreading of her subject matter.

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Author: Steve Horwitz
  • Brandon

    Geloso wrote about Hutt a little bit, too (https://notesonliberty.com/2017/06/26/james-buchanan-on-racism/), but not in a constitutional context. He argues that public choice has all the tools necessary to tackle racism head on.

  • stevenjohnson2

    The notion that the majority of the country favored segregation is absurd. Pretending a local majority (likely a local plurality,) is all that matters is reviving states’ rights without the embarrassment of saying “states’ rights.”. States’ rights has long been correctly assessed as a goal-oriented principle, in disrepute for being a racist goal.

    I’m not quite sure how Hutt could possibly have thought a constitutional provision really restrained anybody. I think he always believed it meant a way for a minority to exert their will, or to block the will of the majority, which was what he liked about it. This is not a serious political analysis, it is right wing propaganda.

    Last and least, the likelihood that apartheid in South was created by labor unions, who forced it on society by violence, then used their awesome political power to pervert the state into legally enforcing their malignant will…actually, I’m sure violence against African land holders by Boers et al. seeking their land played a much more important role in the creation of a repressive state. It’s been decades since I studied African history. But the general proposition that the tail doesn’t wag the dog should have clued in even a libertarian to Hutt’s unreliability. Buchanan importing this crank does not redeem him, it damns him.

    • Theresa Klein

      Regardless of which majorities favored segregation, segregation was not overturned by a majority vote. It was overturned because it was found to be unconstitutional. It was the very constitutional limits on government that MacLean thinks are inherently “undemocratic” which resulted in blacks being liberated from the rule of local majorities.

      • mjz

        ” It was overturned because it was found to be unconstitutional.”

        This isn’t really why we had so much progress on civil rights during the ’60s. Most of the important segregation cases occurred between the mid ’50s and early ’60s, but there was a substantial worry that they would be ignored. And even into the early ’60s they largely were ignored by the southern governments. It was a democratically elected executives (primarily Kennedy and Johnson) and Congress (with the Civil Rights Act) that brought a rather decisive end to the worst practices of codified segregation in the south. The Civil Rights Act is perhaps the best example of this. Almost all representatives from the south voted against it, but its support among northerners (who constituted a national majority) meant that it passed. Desegregation really was something forced on unwilling southerners by a democratic government dominated by a northern majority. It is safe to say that if Goldwater had won in 1964 things would have happened very differently.

    • jandr0

      [The notion that the majority of the country favored segregation is absurd.]

      The notion that there was a clear “notion that the majority of the country favored segregation” expressed is absurd.

      [I’m not quite sure how Hutt could possibly have thought a constitutional provision really restrained anybody.]

      Neither am I, since I am no mind reader. But it could be that Hutt actually had some faith in the rule of law.

      [ This is not a serious political analysis, it is right wing propaganda.]

      Simply claiming “right wing propaganda” after completely ignoring other possible reasonable arguments that would support Hutt’s belief is a clear failure of analysis with intellectual integrity by “stephenjohnson2.”

      [Last and least, the likelihood that apartheid in South (Africa?) was created by labor unions…]

      That claim was not made. The claim that was made was about “the ROLE that white unions had played in … using the power of the state to put apartheid into law.” That is NOT the same as claiming labour unions actually CREATED apartheid (in other words, many other factors contributed to creating apartheid, so the labour unions actions did not CREATE apartheid on its own – it only played a ROLE in specific aspects of it).

      Please do yourself a favour and accurately and honestly represent the actual claims made by those you argue against.

      [I’m sure violence against African land holders by Boers et al. seeking their land played a much more important role in the creation of a repressive state.]

      Well, here you actually make a claim regarding the ROLE played by other role players of which Hutt would certainly have been aware, as someone residing and lecturing in South Africa for an extended period and taking a decided interested in apartheid. That makes your earlier spurious claim that someone (Hutt?) would allegedly have claimed labour unions CREATED (i.e. by their initiative only) the apartheid state even more far-fetched.

      [Hutt’s unreliability … this crank]

      “Nice” ad hominems. But they do help me to now understand your unexpressed goal – you were NEVER really interested in honest debate with integrity. Rather, in the fashion of Nancy MacLean, you wanted to MISREPRESENT things to arrive at your preconceived, derogatory “conclusion.”

      Frankly, I am not interested in taking the debate any further with someone who acts like that. And many others all over the world are waking up to such “debating” techniques and more and more rejecting it (and the people who practice it).

    • j_m_h

      Sure and there were no riots in Boston in reaction to integration and bussing blacks around because the North and Boston inparticular were so progressive and PC ahead of it’s time.
      And the ludites are an urban myth.
      There is also a serious disconnect in this discussion of Public Choise and Majority decision — Public Choice largely shows how it’s a minority that is really pushing agendas. For the most part a constitutional rule that required a real (and I’d say super) majory of the people to make any law most of the oppressive laws would never have existed. Granted there would likely be a fair amount of good law tossed out as well given sometimes the agnda setter(s) is actually a competent and well meaning person. But I’m pretty sure the ratio of good law to bad law by pretty much any definition would be higher that what we get today or ever got in the past.

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  • Theresa Klein

    Very good post. It’s not just that MacLean misrepresents the words of various libertarian thinkers, it’s that she fundamentally misunderstands and misrepresents the libertarian view of government. Of course libertarians want constitutional constraints on government – so do the vast majority of progressives and liberals. And we want those constraints for the same reasons; because we believe that people have basic rights which must be protected, from the politically powerful, including both wealthier people and more populous groups. Where we differ is that we include economic liberties among those basic rights.

    MacLean seems to be unable to fathom that some people might legitimately consider economic liberties part of the fundamental array of liberties that constitutions ought to protect in order to protect the weak from the powerful, not because they are evil people who want to exploit and oppress others the weak. She seems to think that economic liberties can only possibly ever protect the strong and enable them to exploit the weak.

    • I’m glad you edited your comment to include that last point. I think that’s perceptive and right.

  • Luke Reeshus

    This represents a striking analogy to arguments over free speech. After all, many who express an interest in limiting “hate speech” do so under the guise of protecting minorities from majoritarian abuse. As Ken White addresses that notion:

    There are many very stupid ideas about free speech in academia. Perhaps the stupidest is this: free speech is a legal norm used to protect the powerful at the expense of the powerless, but exceptions to free speech will benefit the powerless. Nobody with a passing knowledge of the history of free speech takes this seriously.

    Indeed, and especially no one with a passing knowledge of free speech’s impact on “religious sensibilities.” The alternative vision is readily available though. Why, just review Ken’s blog’s coverage of anti-blasphemy laws around the world, and marvel at the harmony of societies fashioned by majority fiat.

  • j_m_h

    While perhaps something of a nit, much like the rhetoric of “competition” I find a certain discomfort with the blanket “constitutional constratint” statements. It’s neither competition nor the constitutional constaint perse but the specific form/type of competition (and more importatnly the underlying rules for how competition can be perform — a constittional type aspect as well as including constitutional constratins). Likkewise, not all constitutional contraints are equal in producing the outcomes attributed to them above.
    So while I suspect the above offers some good argument against the attempted character assasination I’m not sure it offers the same level of refutation regarding public choice and constiutional economics/politics without getting a lot deeper into the weeds where it becomes less obvious or conculsive.