February 20, 2015 3:41PM

Lynching, The Rule Of Law, and America’s Past

In connection with his new book The Libertarian Mind, my colleague David Boaz wrote a piece last week on how the struggle to abolish slavery was a defining episode for classical liberals and proto-libertarians of the past, indeed arguably their greatest accomplishment. In America, libertarian history and black history cannot be separated. 

We also know that after the end of slavery, the racial subjugation of American blacks did not end, but took new forms. As a new generation of historians has helped the nation remember, the "Black Codes" and Jim Crow laws that spread across the South after Reconstruction were part of an interlocking array of practices that at its worst succeeded in recreating "slavery by another name." Some of those laws were explicitly racial--and "segregation" is wholly inadequate as a description of the racial subordination they enforced--but others worked through theoretically race-neutral legal institutions, including convict-leasing combined with steep penalties for minor or pretended offenses, debt peonage for tenant farmers, and laws prohibiting "vagrancy" (i.e., unemployment) or walking away from a labor contract, among other offenses.  

The other main branch of legalized racial oppression after the Civil War was, if anything, even more difficult yet necessary to confront: sanctioned violence outside the machinery of the state, symbolized by the practice of lynching. Last week the Equal Justice Initiative released a report (summary here) that was written up in the New York Times and has drawn attention from commentators including conservative Rod Dreher.

The details--be warned that they are gruesome in the extreme--include burnings alive and public tortures and mutilations carried out before crowds of hundreds, even thousands, of persons. "The white men, women, and children present watched the horrific murders while enjoying deviled eggs, lemonade, and whiskey in a picnic-like atmosphere."

Contrary to the notion of mob violence as something arising from a moment of fury, they were often planned well in advance and even announced in newspapers beforehand. Contrary to the image of hooded and masked anonymous assailants, the participants often posed for photographs that were widely circulated and yet resulted in no legal consequences. And contrary to the portrayal of lynching as an extrajudicial means of ending the lives of lawbreakers who would have been punished in due course anyway, the report makes clear that a large number of lynchings were carried out over "minor social transgressions"--as punishment for attempts to speak out or organize against perceived injustice, and in general to instill a sense of terror and subordination in black populations. (There were even lynchings to punish blacks whose successful businesses were seen as "stealing" white merchants' business.)

True, the report can be faulted on various points, as when it summarizes the post-Civil War experience by saying that "the nation did nothing to address the narrative of racial difference." In fact, the Radical Republicans pursued a great battle for more thorough legal equality that resulted in some lasting achievements, notably the Reconstruction Amendments. But the wider message is real: for those who advocate the rule of law, lynching is among the darkest episodes in American history. 

And in those dark hours, classical liberals and early libertarians were on the right side. Few were more active than one of my youthful heroes, H.L. Mencken, whose crusade in the Baltimore Sun against lynching on Maryland's Eastern Shore is well recounted by Marion Elizabeth Rodgers in this wonderful piece. Many of Mencken's contemporaries equivocated:

When a second lynching occurred in Princess Anne, Maryland in 1933, President Franklin D. Roosevelt’s refusal to speak out on the atrocity was a matter of discussion throughout the country. Determined that this outrage not be dismissed, Mencken joined forces with Clarence Mitchell of the NAACP to promote the Costigan-Wagner Anti-Lynching Bill that would make lynching a capital offense. Mencken’s impassioned testimony in support of the bill galvanized senators on the committee. Predictably, Roosevelt refused to challenge the Southern leadership of his party, and the bill died.

On a happier note, National Public Radio and others have drawn attention to this long, powerful speech by U.S. District Judge Carlton Reeves of Mississippi. He delivered it in sentencing three defendants convicted in the sort of racial-murder episode for which Mississippi was once internationally notorious, but which has, blessedly, become exceedingly uncommon anywhere in the United States. "Today we take another step away from Mississippi's tortured past ... we move farther away from the abyss." Judge Reeves' speech is both a triumph of the rule of law over barbarism and, in what I think is not coincidence, a triumph of reason over emotion. You can read it here.