So what stopped Jim Crow? It took brave activists and lawyers, a court decision in keeping with American law, and then reluctant majority acceptance of the decision. At that point, MacLean says, only Southern “elites” still cared to fight desegregation.
Is that a story of “democracy” stopping Jim Crow, or a story of the American system of government stopping Jim Crow? It seems to us [Nancy] MacLean wants to say that the American system worked to stop Jim Crow only because a majority stood behind the results. But we think it’s clear enough that the Virginian majority MacLean imagines standing in favor of Brown was ushered to a position of acceptance by the actions of truly brave people who did not know whether they had majority support (indeed, even today it is apparently known only to “the scholarly literature” that they did have that support), combined with the appropriate and stern dictates of the Supreme Court.
Fortunately, we who care about dismantling racism and other forms of oppression know of a set of powerful insights about political economy known as public choice economics. As systematized by James M. Buchanan, Gordon Tullock, and many others, public choice economics helps explain the behaviors of majorities, minorities, elected officials, and special interest groups of every type, whether righteous or wicked. It also helps explain how, with the best of intentions, a democratic majority still often ends up behaving like a bunch of assholes.
Now, public choice does not aim directly at dismantling (or supporting) racism; it looks at political economy in a highly abstract manner. This abstract approach, though, makes it potentially a useful tool in a wide range of issue areas, and racism is certainly one of them.
Although the field of public choice is relatively new, the outlines already exist of a vast historical-economic research project, one that describes both the rise and the fall of American apartheid, using tools derived from public choice theory to make sense of how the government was mobilized for racist oppression, keeping firmly in mind that in a democracy both open majorities and insular minorities can sometimes be tyrannical. Or liberating.
Among the best starting points on race and public choice is David E. Bernstein’s Only One Place of Redress, a book of legal history inspired by public choice that examines how African-Americans used the courts to challenge unfair labor restrictions that they faced in the Jim Crow era. Using democracy, white southerners had passed laws that made it hard for African-Americans to do almost any work besides farm labor. Other laws, called emigrant agent laws, made it difficult for African-Americans even to leave the South. The effect was to hold captive a population of workers who were denied career or educational prospects of any other kind.
Bernstein tells the story of how African-Americans fought and sometimes defeated discriminatory measures in court, not just in the South, but across the country. Sometimes white supremacism came in the most innocuous and even fine-sounding democratic guises.
So the point here is not to dismiss Democracy in Chains, although others have criticized some of its scholarship and its general outlook. We do mean to affirm that public choice offers a powerful toolkit of insights that can be used to expose and strategize against racism and other forms of oppression that persist, perversely, under democracy. It would therefore be foolish for the opponents of racism to neglect or demonize public choice. Instead, let us learn and use public choice for good ends. That will mean incorporating the knowledge that when democracy is unfettered, it still sometimes reaches results that are downright evil. Not only is the tyranny of the majority still a real threat, but further, no democracy exists that is so pure and so unmitigated that the phenomenon of concentrated benefits and diffuse costs will not sometimes have its effect. When that happens, public choice theory may be able to tell us why, and knowing why will tell us which strategies may lead to justice.