Rand Paul and the Civil Rights Act

theCL 2010-05-20 Culture, Election Campaign, Politics

In yet another non-controversy ... Rand Paul is being accused of being a racist. Or should I say, raaaaacist!

This of course, is how politics works. When you have no argument of your own, start calling people names!

If we use "gaffe" in its proper, Kinsleyan form, that's what U.S. Senate candidate Rand Paul issued to NPR yesterday, and that's what he defended on Rachel Maddow's show last night. He told the truth about his stance on the Civil Rights Act. I've posted the video and transcript below the fold, because I find it fascinating to watch Paul stand by his philosophical and legal stance and refuse to dissemble in a way that would, you know, get people to stop accusing him of some archaic form of racism.

So is Rand Paul a racist? No, and it's irritating to watch his out-of-context quotes -- this and a comment about how golf was no longer for elitists because Tiger Woods plays golf -- splashed on the Web to make that point. Paul believes, as many conservatives believe, that the government should ban bias in all of its institutions but cannot intervene in the policies of private businesses. Those businesses, as Paul argues, take a risk by maintaining, in this example, racist policies. Patrons can decide whether or not to give them their money, or whether or not to make a fuss about their policies. That, not government regulation and intervention, is how bias should be eliminated in the private sector. And in this belief Paul is joined by some conservatives who resent that liberals seek government intervention for every unequal outcome.

NPR to Rand Paul: Would you have voted for the Civil Rights Act?

I don’t like to go back-to-back on the same subject but a hot rumor hit Twitter as the last post was being published that Paul told NPR he would have voted against the 1964 CRA. (Much like certain Democrats who are still serving in the Senate did.) As you’ll see, it’s not true. The reporter, smelling blood, badgers him about it, but Paul never quite gives him a straight answer. And he qualifies his response with enough virtue — he opposes institutional racism, would have marched with MLK, likes a lot of what was in the CRA — that there’s really no wound inflicted here. His reservations about the law have to do not with the ends but with the means of federal compulsion; he wants business owners to serve everyone but clearly prefers using boycotts and local laws to pressure them. It’s not a question of being pro- or anti-discrimination, in other words, it’s a question of how federalism and civil-rights enforcement mesh.

Rand Paul's position on this 46-year old debate is hardly controversial. He's against racism. He's also against disposing of our "inherited rules of civilized conduct" in favor of positive law. But that's not "conservative" enough for some people.

What Rand Paul really said about the Civil Rights Act of 1964.

It's true that Rand made many expressions of his opposition to race discrimination in what was a hearty effort to blunt the effect of what he was saying, but it is not true that his "reservations" were limited to federalism concerns.

Rand was also expressing the view that owners of private businesses have a right to decide whom they will serve. Such a right would not run counter to the 14th Amendment, because the 14th Amendment only protects individuals from the actions of the state and privately owned restaurants and hotels are not the state. If you want a legal requirement that these businesses treat people equally, you need to pass a statute, which is why the Civil Rights Act of 1964 was passed.

He likens private property rights to free speech rights. If you care about free speech rights, you defend even the people who say horrible things — Nazis, the KKK, etc. That's standard constitutional law doctrine. In Rand's view — and in the view of many libertarians — property rights work the same way. So you could have this horrible racist restauranteur who excluded black people, and the government would have to leave him alone, just as the government couldn't do anything about it if a white person had a dinner party at his house and only invited his white friends.

Ann goes on to say the Supreme Court (who upheld Kelo) settled (like global warming) the federalism debate and wonders how "this is commitment to the extreme abstraction did not, in fact, have an origin in racism."

Ridiculous. How do I know her extreme defense of positive law isn't based in racism? See how easy it is to fall down that slippery slope?

Private property and individual liberty are not an "abstraction," but the most fundamental institutions of the American experiment. Paul is simply defending free association. Freedom sometimes involves letting people do things with which you disagree. What freedom is not, however, is racist.

We'd probably be better off if we had restaurants with "no blacks allowed" and "no whites allowed" signs in their windows anyways. Why?

Because that way, I know who not to do business with. Racists make me uncomfortable and I wish not support them. But thanks to the law as it now stands, I don't know who the racists are, therefore I'm forced to do business with people I'd voluntarily ignore.

Rand Paul and the Civil Rights Act question

Do you remember that guy in Georgia who put up that racist anti Obama sign? I think it is safe to say there are no blacks spending their hard earned money in that establishment. As such, hasn’t this guy circumvented the Civil Rights Act and achieved segregation of his establishment by hiding behind his First Amendment rights? Should we allow government to curtail all our First Amendment rights to shut him down? If yes, what do we do when he tries something else to keep blacks out? Do we then allow government to regulate all private businesses further? When do we draw a line with trading our liberties to right an obvious wrong? Perhaps boycotts and the free market can play a role in shutting him down, something to think about.

Rand Paul, The Civil Rights Act, And Individual Liberty

Paul’s position is essentially identical to the one that Barry Goldwater took when he voted against the 1964 Civil Rights Act due solely to his belief that two of it’s sections — Title II and Title VII — because he did not believe that the Constitution authorized Congress to regulate purely private behavior, a vote he explained in this Firing Line interview ...

If you really had to push me to take sides in this debate, though, I’d be with Paul and Goldwater. As offensive as it is, I do not see any provision in the Constitution that gives Congress the authority to determine who an private individual can and cannot do business with even if that decision is based on someones race or religion, and the Court decisions in Heart of Atlanta and Katzenbach are burdened by the same intellectual flaws that underlie every Supreme Court decision under the Commerce Clause since Wickard v. Filburn. That said, there was much in the Civil Rights Act of 1964 that was necessary, and should have been passed, just not with the unconstitutional additions that Paul was talking about.

Is it any surprise that the neocon Frum cauldron is against Rand Paul?

Rand Paul’s America

It is too bad that [Ted Kennedy] did not live to see Rand Paul, Kentucky’s Republican nominee for the Senate on the Rachel Maddow show. As it turns out in Rand Paul’s America, an America where the original Constitution (as Paul understands it) has been restored, we would in fact still live in a land of segregated lunch counters.

That said, this is what the president might call a “teaching moment.” Might the conservative movement be going off the rails when its celebrated anti-establishment candidate needs to clarify his position on perhaps the most significant law in the nation’s history, one that has gone effectively unchallenged for over 40 years?

Rand Paul, the Civil Rights Act, and Private Discrimination

Paul’s views are identical to those I held when studying Constitutional Law as an undergrad and not all that far removed from my current position. There’s no question in my mind that private individuals have a right to freely associate, that telling owners of private businesses whom they must serve amounts to an unconstitutional taking, and that it’s none of the Federal government’s business, anyway. Further, in the context of 2010 America, I absolutely think that business owners ought to be able to serve whomever they damned well please — whether it’s a bar owner wishing to cater to smokers, a racist wanting to exclude blacks, or a member of a subculture wishing to carve out a place for members of said subculture to freely associate with only their kind out of purely benign purposes.

The problem that libertarians and strict Constitutionalists have, however, is that precedents set under extreme and outrageous conditions are often applied to routine and merely inconvenient ones. (Or, as the old adage goes, “Hard cases make bad law.”) Once someone’s private business is transformed by fiat into a “public accommodation,” there’s precious little limit to what government can do with it. Requiring private individuals to treat black people with a modicum of human dignity is one thing and dictating what kind of oil they can cook their French fries in or how much salt they can put on them is quite another. But, in principle, they’re not much different.

All that said ... this is a pointless and harmful debate for Paul to get sucked into. This has been settled law since before I was born and a Senate campaign isn’t a political science seminar. This is the sort of question that more seasoned politicians know how to dodge.

And herein lies the problem in this strange game of politics ... principle is bad.

Rand Paul and the Zombies

The Left is going after Rand Paul over the 1964 Civil Rights Act. Why, Rand Paul secretly wants to repeal it, they say, which means we’d have segregated restaurants all over again. Now any non-hysteric knows a segregated restaurant would be boycotted and picketed out of existence within ten seconds, but we’re supposed to fret about fictional outcomes from the repeal of a law that will never be repealed. And certainly we cannot question the 1964 Act, since our betters have decided the matter is closed.

Of course, someone might have objected to that Act on the grounds that it would of course lead to affirmative action, since racially proportionate hiring is the only practical way to prove one has not been “discriminating.” One might also object to the law on constitutional grounds, or on the grounds that (as has indeed happened) it would lead to legally protected classes whose members simply cannot be fired, since their employers know they will be hit with groundless but costly and time-consuming litigation. (Incidentally, black employment statistics saw far more progress in the one year before the 1964 Act than in the two years after it.)

As the Left sees it, none of these reasonable concerns can be the “real reason” for opposition to the 1964 Act. The real motivation is (what else?) a sinister and arbitrary desire to oppress blacks and other minorities for no good reason.

Read more on Rand Paul on the Civil Rights Act here: