Trey Garrison

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.

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