Signposts: New Directions in Southern Legal History

Defending the Right to Discriminate: The Libertarian Challenge to the Civil Rights Movement

417 The Southern view, strongly held, is that in a free society, great care should be taken to secure the individual’s freedom. The owner of a neighborhood drug store, or dress shop, or soda fountain, as we see it, has a right to choose his customers as he sees fit. Call this a property right, or a right of privacy, or a right of free association[.] It too is a civil right. —Robert T. Simpson, Associate Justice, Supreme Court of Alabama, 1964 On July 2, 1964, after more than a year of national debate, Congress passed and President Lyndon B. Johnson signed into law the Civil Rights Act of 1964. The most controversial part of the law was the public accommodations provision (Title II), which prohibited racial discrimination in most of the nation’s restaurants and hotels. One business affected by this new federal antidiscrimination requirement was the Pickrick, an Atlanta restaurant locally famous for its fried chicken and owned by one Lester Maddox. The Pickrick only served whites, and Maddox had no intention of changing this policy. Within days of the passage of the Civil Rights Act, three black students arrived at the Pickrick intending to test their new legal rights. Maddox planted himself in front of his restaurant, pistol in hand, flanked by a group of local whites, each armed with ax handles that Maddox had supplied. In explaining his defiant stance, Maddox referenced the standard arguments of defenders of Jim Crow—arguments well rehearsed from a decade of white southern resistance to school segregation. A white supremacist, Defending the Right to Discriminate The Libertarian Challenge to the Civil Rights Movement Christopher W. Schmidt 418 Christopher W. Schmidt Maddox found confirmation for his views in both biology and scripture, and he made little effort to hide his belief in African American inferiority. Predictably, he also cited the principle of states’ rights and the constitutional limits of federal authority. Raw racism and claims of state autonomy were centerpieces of the case against the civil rights movement, and Maddox deployed them passionately and frequently. But another line of argument that Maddox pursued was more individualistic and libertarian. As he explained to a reporter, he was “shocked to hear . . . that I must as an American forgo my rights under the Constitution and become subservient to those who demand that I must surrender my rights as an American and my property. . . . It’s involuntary servitude; it’s slavery of the first order, it shows complete, utter disregard for the United States Constitution.” This was a question of constitutional liberties—those of white business owners—and, as Maddox assured a rally of his supporters the day following his confrontation with the black students, “Freedom will prevail.” When he found himself the target of a lawsuit for his refusal to follow federal law, he took his case to the people, running an advertisement in the local newspaper in which he explained that if he was sent to jail for his actions, “it won’t be Lester Maddox going to jail, nor just the Pickrick closing . . . . It will be freedom and liberty being placed behind bars for life.” Maddox’s lawyer argued his client’s case in federal district court. “The Constitution was designed to preserve the freedom of a man to discriminate,” he explained. “What greater freedom is there than to select your own associates , to serve whom you want to serve?” When eventually forced to comply with federal civil rights law, Maddox sold his restaurant. He then had a monument erected in front of the Pickrick commemorating “the death of private property rights in America.” Maddox was an exceptional character. Outspoken, uncompromising, Maddox the showman was willing, even eager, to use violence to protect what he viewed as his fundamental rights. (He also won the Georgia governorship in 1966, campaigning on a platform of segregationist defiance.) Yet the claims of a constitutionally based “right to discriminate” that Maddox angrily pronounced were actually not as far outside the mainstream as one might assume. Alongside arguments based on principles of states’ rights and deference to majoritarian white supremacist traditions, a libertarian critique of antidiscrimination policy was a basic element of the white South’s legal case against civil rights. A claim of a right to discriminate had little to no chance of being accepted in a court of law. When given the opportunity Defending the Right to Discriminate 419 to review Maddox...