Marshall, Civil Rights, and the Court

This August 1991 polemical essay uses Thurgood Marshall’s retirement from the Supreme Court as the occasion for a broader attack on civil-rights jurisprudence, conservative accommodation to it, and judicial centralization. Rothbard’s immediate subject is the public celebration of Marshall, but his deeper claim is that modern “civil rights” doctrine replaces property rights and freedom of association with state-enforced equality.

Mendacity, thy name is Washington, D.C., but even for the nation’s capital the stench of mendacity and baloney pervaded the air at the end of June when Mr. Justice Thurgood Marshall announced his retirement.

The opening denunciation frames Marshall less as a biographical subject than as a symbol of a larger legal-political consensus. Rothbard links Marshall’s career to NAACP litigation, Brown v. Board of Education, school busing, opposition to capital punishment, and judicially enforced integration. His central concern is not simply that these outcomes were undesirable, but that they made private choice, exclusion, and association subject to federal command.

The essay’s main conceptual turn comes in “The ‘Civil Rights’ Trap,” where Rothbard argues that mainstream conservatives wrongly try to defend an original anti-discrimination ideal while resisting quotas and later civil-rights enforcement. In his account, those later developments are not deviations from civil-rights law but consequences of its premise.

Once admit that principle, and everything else follows as the night the day.

For Rothbard, the disputed principle is the claim that owners, employers, landlords, schools, or businesses may be legally forbidden to discriminate. He treats the right to exclude, hire, sell, rent, and associate on chosen terms as the indispensable core of liberty. Civil-rights law is therefore, in his view, not a limited correction of injustice but a direct assault on ownership itself.

The original sin of “civil rights,” which would have been perfectly understood by such “old conservatives” as the much maligned Nine Old Men who tried to block the measures of the New Deal, is that anti-discrimination laws or edicts of any sort are evil because they run roughshod over the only fundamental natural right: the right of everyone over his own property.

This property-centered argument allows Rothbard to criticize not only liberals but also conservatives, neoconservatives, legal activists, and libertarians who accept anti-discrimination rules in some sphere. His target is the shared axiom that equality of access can override ownership and contract. He also treats forced busing and related remedies as predictable expansions of this axiom, rather than as abuses separable from it.

The essay then turns inward toward libertarian theory. In “Left-Libertarians and the Brown Decision,” Rothbard argues that libertarians often defend private discrimination in principle but become confused when discussing state-owned schools, parks, and facilities. Because libertarianism denies the legitimacy of government property, he contends, it cannot coherently derive an egalitarian rule for administering such property.

Since according to libertarian theory, there should be no government property, since it is all derived from coercion, how does any principle whatever of government property use follow from libertarian theory?

On this basis, Rothbard rejects libertarian praise for Brown as an illicit borrowing from egalitarian public-access theory. His proposed direction is to repudiate civil-rights law while privatizing state functions, rather than to search for a fairer rule of access within public ownership.

The final section shifts from civil rights to constitutional structure. Rothbard distinguishes liberal judicial invention, conservative deference to legislatures, and libertarian judicial activism for property rights, but concludes that even the last leaves too much power in the Supreme Court. The essay therefore ends by joining private-property absolutism to Jeffersonian decentralism.

Dismantling the Leviathan State, a task embraced by all libertarians, must also invoke dismantling the nationalizing, centralizing, absolute oligarchy that constitutes the Supreme Court of the United States.

Its significance lies in that fusion. The essay is an anti-Marshall polemic, but it is also a programmatic statement of Rothbard’s “paleo” libertarian jurisprudence: discrimination is recast as an exercise of liberty, anti-discrimination law as inherently coercive, public property as theoretically illegitimate, and judicial supremacy as part of the centralized state to be dismantled.