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Racially-Motivated Laws Are a Real Thing — And They End up Targeting Everyone

Tags Legal SystemU.S. History


Recently, I wrote an article defending the legitimacy of the term “cultural Marxism.” The conservative right is often accused of lobbing the term about without real meaning, which may be true in many cases, but I argued that it does have a legitimate definition that can be acknowledged even outside of the left-right political divide. Like “cultural Marxism” on the right, I believe the same can be said about a phrase favored by the progressive left: institutionalized racism.

Like all political bromides, it is easy to recognize that the accusation of institutionalized racism is thrown about far too frequently, and this make it easy to dismiss the term as devoid of any meaning. But unlike genuinely meaningless terms (e.g., “social justice”), the concept of institutionalized racism can be clearly and unobjectionably defined and applied to the history of government policy within the United States.

Racist Origins of Modern Laws

To find any coherent meaning in the concept of racism that has been “institutionalized,” one must first recognize the explicitly racist motivations behind various laws. This is not difficult to do. The laws prohibiting drugs were openly advocated on racial grounds, as I have detailed in length . Marijuana laws were designed to target blacks and Mexicans. Cocaine prohibition targeted blacks. Opium laws were aimed at the Chinese. The purpose of these laws was only nominally to protect the public from self-harm; the reality, as stated quite clearly by several prohibitionists, was to target undesirable ethnic classes and produce racially disparate prosecutions.

Minimum wage laws were similarly racially motivated , being originally designed to prevent free black laborers from being able to underbid white workers on the job market. The laws achieved the originally intended objectives: black employment decreased, and white wages were artificially propped up. As Tho Bishop recently pointed out , gun control laws were put in place for the explicit purpose of removing the ability of blacks to protect themselves.

All three categories of laws, irrespective of the changes and modifications that have taken place over time, were openly lobbied for on racial grounds, and their intended purpose was to produce racially disparate consequences. Historically, this is beyond dispute. Of course, it would be a logical fallacy (specifically, the “genetic fallacy”) to say that these laws are harmful because of their racial origins; and many have rightly argued that they are harmful regardless of whether or not they were racially motivated.

But what is worth acknowledging is that these laws were all successful, according to their intended goals. Drug prohibition did indeed result in a disproportionately high arrest of ethnic minorities, even though whites were not entirely excluded. Minimum wage laws, by exploiting the more common racist sentiments of the nineteenth and early twentieth centuries certainly produced higher levels of black unemployment. Gun control clearly made it more difficult for minority groups to protect themselves from both law enforcement and violent mobs in times and regions where racially motivated violence by whites went largely unprosecuted.

But that was a long time ago, when racism was normalized and accepted. Today, even the race-obsessed left will have difficulty denying that racism has decreased exponentially over the past several decades. In the modern age, it would be political suicide to advocate drug prohibition, minimum wage hikes, or gun regulation on racial grounds. So does the racist history of these laws matter?

Racism without Racists

Laws that were born out of racism are today defended on very different grounds. Minimum wage laws are supported to help the black worker as much as the white worker. Gun control is justified as protecting the children – all children.

But as Milton Friedman once cogently observed, “One of the great mistakes is to judge policies and programs by their intentions rather than their results.” It may be true that the motivation behind these laws is no longer racial, but the results of these laws still demonstrate the racially disparate consequences that were intended by the original, racist legislators. And as long as that is the case, I would argue that understanding the racist history of the laws still does matter.

What makes racism institutionalized, then, is the successful crafting of a law for the purpose of producing racially disparate consequences. The left is right on the money when they point out the racial disparities in prisons – largely a product of drug prohibition. But they miss an important point when they argue that the police, the lawyers, or the judges are themselves being racist. To be sure, you can find cases of police espousing racist sentiments in the conduct of their job, but this is certainly not the case for all – or even most – police officers, and you can easily counter such anecdotes with a heartwarming story of an officer who genuinely helps a non-white person in need . The idea of widespread racism among police also fails to explain the role of non-white officers enforcing the laws against citizens of their own race.

Libertarians — and other concerned about abuse by police — are also correct to point out that the problems of militarized police, drug prohibition, minimum wage, and gun control extend to whites as well. Government abuse is government abuse, whether it’s racial or not. However, while it’s good to criticize bad laws regardless of their racial component, one should not overlook the fact that racially motivated laws continue to produce their intended racially disparate consequences.

Thus, to apply a meaningful definition to the concept of “institutionalized racism,” we should first recognize that by historical figures putting their racism in legislative form, they have created a situation in which racist consequences are achieved by non-racist actors. A police officer need not be racist to perpetuate the intended outcome of a racist law.

Johanne Hari, in his book Chasing the Scream , tells the story of a white police officer who was in a relationship with a black man, while almost exclusively arresting black citizens for drug offenses. Upon realizing that she was perpetuating the racist intentions of the historically racist law, she quit her job. Yes, we might acknowledge, her enforcement of drug laws was harmful regardless of the racial component, but the racial component was not an accident. It was a matter of original and effective design in both 1913 and 1971 ( a former Nixon staffer recently acknowledged what many of us already suspected : the war on drugs was deliberately designed to target, among other groups, blacks).

If the left were consistent, of course, they would recognize that the racially disparate consequences of drug prohibition are analogous to the consequences of other race-motivated laws. Minimum wage laws predominantly effect teenage workers who are first entering the labor force. While the unemployment rate between blacks and whites above the age of 25 might differ by only a couple of points, the teenage unemployment rate between those two racial classes differs by nearly fifteen points. Modern supporters of higher minimum wage laws like to ignore this disparity, but it should be acknowledged as the intended consequence of the original laws, regardless of whether or not the modern perpetrators are, themselves, racist.

The same story could be said for gun control. In an unintentionally ironic article by David Cole of the New York Times, Cole argues for (among other things) tighter gun laws because “young black men die of gun homicide at a rate eight times that of young white men. Could it be that the laxity of the nation’s gun laws is tolerated because its deadly costs are borne by the segregated black and Latino populations of North Philadelphia and Chicago’s South Side?”

His recognition of the racial disparity of homicides is not incorrect, but he contradictorily cites examples of areas in which gun laws are among the strictest in the country. But even among the left, there is occasional recognition that gun ownership by ethnic minorities is a solution to the problem Cole points out. Julia Craven of the Huffington Post writes: “HuffPost spoke to 11 black gun owners about their reasons for owning a firearm. Trump was a non-factor. Instead, they talked about wanting to protect themselves out of fear that no one else would.”

In sum, it’s not necessary to deny the concept of institutionalized racism. It is important to recognize that the laws mentioned in this article have negative consequences regardless of race, but the racial disparities in the consequences are a real-world factor. Essentially, institutionalized racism – racist policy that has racially disparate effects even without racially motivated enforcement – is the acknowledgement that the modern racial disparities in teenage unemployment, black and Latino incarceration, and minority homicide victims are not an unintended consequence of bad laws, but rather, are very much the intended consequences.


Chris Calton

Chris Calton is an economic historian and a former Mises Research Fellow. He was the writer and host of the Historical Controversies podcast.

Note: The views expressed on Mises.org are not necessarily those of the Mises Institute.
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