Rand Paul is Right About What’s Wrong With Civil Rights Law

As Matt Welch noted earlier, Republican senatorial hopeful Rand Paul is taking heat for criticizing those sections of the 1964 Civil Rights Act that prohibit discrimination by private businesses. As Paul’s interview last night with MSNBC host Rachel Maddow indicates, many on the left see Paul’s libertarian position on this issue as a tacit endorsement of racism (or worse). As Maddow put it, “unless it’s illegal, there’s nothing to stop that—there’s nothing under your world view to stop the country from re-segregating like we were before the Civil Rights Act of 1964.”

Of course, Paul was pretty clear that he supports the federal desegregation of public schools and the federal enforcement of voting rights, as well as most of the other provisions in the 1964 Civil Rights Act, so it’s unlikely we’ll see any wholesale re-segregating if his “world view” ever reaches the commanding heights. Maddow can rest easy.

But this controversy does raise the very important topic of the government’s central role in American racism. First and foremost, Jim Crow was a legal regime, one that relied on state and local laws to restrict the political, social, and economic liberty of African Americans. Those laws interfered with the right to vote, to acquire property, to contract, to travel, to associate, to marry, and to keep and bear arms. Under the 14th Amendment, state and local governments are forbidden from violating such rights. Yet as we all know, the courts only selectively enforced the 14th Amendment during the Jim Crow era. Indeed, the Supreme Court has yet to enforce the 14th Amendment when it comes to gun rights. But none of that changes the fact that we’re talking primarily about state action, not about some failure of the free market.

It’s also important to acknowledge that economic rights are not in some inherent conflict with civil rights. In fact, we have significant historical evidence showing that legally enforced property rights (and other forms of economic liberty) actually undermined the Jim Crow regime. Most famously, the NAACP won its first Supreme Court victory in 1917 by arguing that a residential segregation law was a racist interference with property rights under the 14th Amendment.

Finally, keep in mind that Plessy v. Ferguson, the notorious 1896 Supreme Court decision that enshrined “separate but equal” into law and become a symbol of the Jim Crow era, dealt with a Louisiana law that forbid railroad companies from selling first-class tickets to blacks. That’s not a market failure, it’s a racist government assault on economic liberty.



  1. Libertarian Paradox says:

    Libertarians are big on the free market. One component that is key to success in the market is good marketing. Oddly enough, libertarians do not embrace good marketing techniques when running for office. Regardless of the merits of one’s argument, if it takes you more than 30 seconds to explain anything on a campaign trail you are going to lose. There are hundred other things going on in the world, why you have to go back to talk about something that occurred over 40 years ago is beyond silly. Stick to the issues at hand. Nobody wants to hear about gold standards or Goldwater. People are concerned about the economy. Tell them how your message of limited government is going to help them, but may require some sacrifice, i.e. reducing Social Security benefits, end certain commitments overseas etc. Instead of talking about Paul’s message, we are now having academic debates about the Civil Rights Act. We said John Kerry and Al Gore were aloof.

  2. Frank R says:

    Maddow wasn’t interested in discussing anything. She was simply playing gotcha using tried and true hot button language. Paul had it correct when he stated: “It’s really tough to have an intellectual debate in the political sense because what happens is it gets dumbed down. It will get dumb down to three words and they’ll try to run on this entire issue, and it’s being brought up as a political issue.”

  3. keith johnson says:

    I suppose I understand Rand’s hypothetical position that private businesses have the right to discriminate, but what is a private business? If accountants file federal tax write offs on the behalf of the business, is the “private” business actually autonomous from government? Is Jerry World in Arlington with tax breaks and considerations really private? Is a business subject to EEOC, EPA or OSHA standards private?

    The CRA may or may not have been well intentioned, but it’s legacy is not that of a color blind society. Perpetual racial distinction in the public and private sector and blatant, accepted racism for some is what I see as the product of the Civil Rights Act.
    The United States has sitting as a judge on the highest court in the land a La Raza member who had discriminated against white males, in our federal government we have the Congressional Black Caucus and the Hispanic Caucus; the Dallas Police Department has a Latin Police Officers Association, and a Black Police Officers Association. College campuses across the country recognize racially themed sororities and fraternities.
    In the private sector there is Black Entertainment Television, Jet magazine and Black Miss America.

    At the conclusion of the Civil Rights Act, we didn’t get Affirmative Action, which was packaged as an equally qualified minority getting the nod IF there was an imbalance in the workplace, but instead we instituted racial preference and minority set-asides.
    What’s disturbing to me, and disruptive to the country, is that some forms of racism in this country are institutionalized and acceptable, and to question some racism in this country ironically labels the target of the racism as the racist!

  4. Libertarian Paradox says:

    George Will had it right when he said that Paul’s job is to win a Senate seat, not lecture the finer points of libertarianism. We are $12 trillion in the hole, fighting two wars, dealing with an oil spill, and Paul discusses the Civil Rights Act. Instead he should have been focusing like laser beam on measures to reduce government expenditures.