Today the College Republicans of the University of California, Berkeley are hosting an affirmative action bake sale to highlight the problem of inequality under the law and race-based college admissions criteria.  Unsurprisingly, it has kicked off a firestorm of controversy in the Berkeley community.  Philosophically, this is a correct, classically liberal position to take on the issue of affirmative action.  It is a position I share as a libertarian who just so also happens to be a person of color, and it is a position shared by other black libertarians such as Walter Williams, Thomas Sowell, and rooted in the ideas of black classical liberals such as Harlem Renaissance author Zora Neale Hurston and educator Booker T. Washington.  Furthermore, the rightness or wrongness of the position is irrelevant because the CR’s of UC Berkeley have their freedom of speech to freely express their political opinions.

The free speech issue will dominate the media attention given to this matter.  But there is another aspect to this entire debate that I think is completely missed by the majority of the people who engage in it, and I believe that it is a fundamentally important part of the narrative that must be addressed when debating affirmative action; that is the causal relationship between racism and statism. In 1965, President Lyndon Johnson defined the concept of affirmative action, telling the graduating class of Howard University that:

You do not wipe away the scars of centuries by saying: “now, you are free to go where you want, do as you desire, and choose the leaders you please.”  You do not take a man who for years has been hobbled by chains, liberate him, bring him to the starting line of a race, saying, “you are free to compete with all the others,” and still justly believe you have been completely fair . . . This is the next and more profound stage of the battle for civil rights. We seek not just freedom but opportunity—not just legal equity but human ability—not just equality as a right and a theory, but equality as a fact and as a result.

There is the definition of affirmative action at its philosophical core.  The justification for this program is to undo the effects of centuries of institutionalized racism in the history of the United States.  This is a valid concern to address.  Next year, I plan on attending grad school to study slave culture and resistance, while also incorporating F.A. Hayek’s work on spontaneous and artificial orders to study the slave system.  If the stated purpose of affirmative action is to correct the creation of the  slave system and its accompanying legacy of racism in American history, then understanding the process by which the slave system was created in the first place is a necessary component in providing the proper knowledge necessary to solving that problem.  The theoretical framework that Hayek laid down in Law, Legislation, and Liberty on cosmos and taxis provides a unique perspective through which to analyze the history of slavery’s introduction to American society.

The story began in Jamestown, VA in the year 1619.  A Dutch ship arrived in port bearing a cargo of around twenty Africans recently captured from Angola.  Most historians agree that these Africans were accorded the legal status of indentured servitude,  a system in which servants worked for masters for a set period of time, usually seven years, and after their term was finished were given “freedom dues”–  a plot of land, a fresh set of clothing, some tobacco seeds, and a gun.  The historical record testifies to the fact that the earliest generations of Virginians, white and black, were able to use this system to their advantage, and prosper through their industry.  Economically, success was possible, and culturally Virginia society was fairly open, with Africans like Anthony Johnson owning 250 acres of land in Northampton County before 1650; or the grandfather of DC surveyor Benjamin Banneker, Banna Ka, an indentured servant from Angola who married Molly Walsh, a former indentured servant from England who had purchased Banna Ka as an indentured servant of her own after receiving her freedom dues.

The latter half of the seventeenth century saw this egalitarian, meritocratic society come to a gradual close.  The system of indentured servitude was starting to unravel, partly because of a lack of immigrants coming from Britain and the lack of desire for large landholders to continue giving away their land in freedom dues; but the growing tobacco industry dramatically increased the demand for labor and arable land.  Many indentures had their contracts reneged upon, and were set free without their promised land.  This loss of economic opportunity led to much discontent on frontier regions that was shared by poor whites and blacks.  In 1676, a cross-racial coalition of these disaffected Virginians organized against the government in Jamestown, but ultimately failed to have their concerns addressed.  They did, however, manage to threaten and unsettle the establishment, and many historians of slave history point to Bacon’s Rebellion as being the lynchpin in the creation of the slave system and crystallizing the concept of race in America.

As a result of the failed rebellion, the colony of Virginia immediately began to pass laws that isolated African servants as being bound for life, tying servitude to progeny, and limiting the ways that Africans and whites could associate with each other, legally defining the types of relationships that could exist between and amongst free and enslaved individuals.  The last decades of the seventeenth century would bring about the gradual restriction and loss of liberties– civil, political, and economic– while also creating a stigmatized racial class.  The colony of Virginia departed from the tradition of English common law and created positive legislation to do this, and by 1705, the slave codes of Virginia were passed as a comprehensive system establishing the desired social order for the colony.  The historical record is clear in showing that the state had a proactive role in the creation of the slave system and racism.  Franz Oppenheimer wrote in The State:

There are two fundamentally opposed means whereby man, requiring sustenance, is impelled to obtain the necessary means for satisfying his desires. These are work and robbery, one’s own labor and the forcible appropriation of the labor of others […] I […]call one’s own labor and the equivalent exchange of one’s own labor for the labor of others, the “economic means” for the satisfaction of needs, while the unrequited appropriation of the labor of others will be called the “political means.”

In Virginia, the problem of where to find laborers who would not need compensation in land was solved by the political means, by the government appropriating the labor and identity of an entire group of people through force, and using this to create a “divide and conquer” mentality in Virginia so that the diverse, egalitarian coalition that Bacon formed in his rebellion could never question the authority of the colony again.  This would be the critical action that set in motion the entire saga of institutionalized racism in this country, which indeed is a blight on the history of liberty in America, and is the institutionalized racism that affirmative action seeks to redress.

But while the motivation of affirmative action from this historical perspective may be in the right place morally, the means to accomplishing that goal cannot come through the arm of the state, when the state was the very institution that gave spark to this entire tragedy initially.  As Robert LeFevre wisely stated, “government is a disease masquerading as its own cure.”  Equality under the law is a just pursuit, but I want to eliminate the institutional mechanism that allowed for lawful inequality to exist.  Those who seek to initiate a debate about affirmative action in America ultimately should lay the blame on the institution of the state for dragging humanity into this moral quagmire that remains a painful and volatile issue to discuss nearly four hundred years since those first twenty Africans arrived in Virginia.  The artificial order of the state and its accompanying legislation can never result in a harmonious society of flourishing individuals voluntarily interacting with one another.  That society only arises spontaneously, through liberty and recognition of natural law that supersedes the political order in the minds of individuals.

The College Republicans of UC Berkeley are free to hack at the branches of evil, but I choose to strike at the root. The affirmative action debate will rage on unanswered until true liberty becomes the goal of all those who engage in it.  Everyone has free speech, and I welcome a debate about the issue, but I desire more to live in a world where this debate is a part of our history, not our present.  Ayn Rand deemed racism “the lowest, most crudely primitive form of collectivism” that exists. To extricate ourselves from the legacy of slavery, we must ultimately extricate ourselves from the mentality of collectivism, and its political consequence of statism.  Arguing about race, without confronting the root of statism itself, will accomplish very little in the struggle for a free society.

Click here to read Senior Campus Coordinator Casey Given’s commentary on the affirmative action bake sale as an student of UC Berkeley.