I may be a bit late to the party regarding Rand Paul's stance on the 1964 Civil Right Act. But I feel it's important to revisit this issue for a couple of reasons. First, Rand Paul appears to be gaining popularity and momentum. I suspect his ideas will also. Second and paramount is that the progressive world simply did not do a good job of responding to his libertarian assertions. We merely laughed and pointed fingers. That just doesn't work. Nothing cements the solidarity of a political supporter quite like mocking their idol. Well, OK it works with liberals -- we run and hide when our leaders are mocked. But the right-wingers will circle the wagons. It is incumbent on us to explain why Rand Paul has it wrong. Not just to assert that he does.
From Alex Pareene at Salon, discussing Rand Paul:
"[L]ibertarians and 'responsible' conservatives of yore usually understood that their intellectual defenses of states' rights just provided respectable cover for racist segregationists."
This is a very common response. Alex claims that states' rights provided cover for the segregationists, but doesn't explain why or how. Yes it may sound crazy that we have to re-litigate the Civil Rights Act 45 years later. But we do. And we will again and again. So let's get it right today. Now.
Here's what Rand Paul actually said, from a Rachel Maddow Show transcript:
"What I was asked by "The Courier-Journal" and I stick by it is that I do defend and believe that the government should not be involved with institutional racism or discrimination or segregation in schools, busing, all those things. But had I been there, there would have been some discussion over one of the titles of the civil rights.
And I think that's a valid point, and still a valid discussion, because the thing is, is if we want to harbor in on private businesses and their policies, then you have to have the discussion about: do you want to abridge the First Amendment as well. Do you want to say that because people say abhorrent things -- you know, we still have this. We're having all this debate over hate speech and this and that. Can you have a newspaper and say abhorrent things? Can you march in a parade and believe in abhorrent things, you know?"
I think it's a fair characterization to say Rand Paul's position is "The government should not itself discriminate. But neither should the government tell private businesses that they cannot discriminate, no matter how abhorrent we find the practice." Paul also said that he himself wouldn't frequent a discriminatory establishment. This is consistent with a market-based view of discrimination: bad actors will not do well in the market; people will not support a business that treats others poorly.
Paul presents a specious argument. He sounds quite reasonable, but the argument doesn't hold up to minimal scrutiny. Several reasons. First is the presumed separation between public and private discrimination. It doesn't exist for quasi-public establishments, such as restaurants or stores. Let's imagine a restaurant with a lunch counter that doesn't serve black people (sound familiar)? Several black customers enter the restaurant, take seats and ask for menus. The owner comes over and says "sorry, we don't serve black people here. You'll have to leave." In response, the customers say "Thank you, no. We're not leaving. You're discriminating against us and that's not fair." The proprietor replies "This is my private business, I choose whom I want to serve. We do not serve black people. You will have to leave now." The black patrons refuse to leave.
What happens now? Of course, the business owner calls the police to have the trespassers removed. And here is where the public/private distinction breaks down. Government provides a means to enforce private contracts. Or the refusal to contract, as in this case. As soon as the police or sheriff (i.e. the government) escorts the black people out of the restaurant or arrest them for trespass, we have institutional discrimination.
The second reason Paul's position doesn't hold water is the presumed agnosticism regarding discrimination. Paul says that government shouldn't stop private discrimination even though he admits it's abhorrent. OK. Now imagine a private business where people pay to kidnap, torture and kill other humans (think "Hostel"). No one in their right mind would argue that government should allow "private kidnapping and torture" just because a private business can make money doing it. Why not? Well, of course, those acts are illegal. And they're illegal because they hurt people and we find them abhorrent. Racial discrimination, on the other hand... Well... Well... that must be somehow different, no?
No. Here's the most insidious part of the seemingly neutral libertarian stance. Even libertarians would admit that murder and torture are inherently bad and we have a societal interest in preventing them. Regardless of how much money one can make, as a fair and just society we simply can't tolerate these acts. Their argument, however, MUST assume that racial discrimination either isn't inherently bad or we don't have a societal interest in preventing it. So either (1) racial discrimination is not inherently bad or (2) we value private business concerns more than preventing racial discrimination. Bottom line: either it's OK, or if you pay enough it's OK.
Now we can close the loop. The Rand Paul/libertarian distinction between public and private discrimination (1) relies on government power to facilitate it and (2) strongly suggests that racial discrimination isn't bad. That is why these types of arguments have provided "intellectual cover" for racists over the years.
PS: Rand Paul provides a "slippery slope" argument: if we don't allow businesses to racially discriminate, they we'll eventually lose our freedom of speech. Remember, the CRA passed almost 50 years ago. It didn't happen. It won't happen. Again, a completely specious argument.
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