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Rand Paul, the Civil Rights Act, and Private Discrimination

Rand Paul, Kentucky’s newly minted Republican nominee for the Senate, is coming under some fire for his view that, while racial discrimination is abhorrent, he thinks private business owners ought be free to engage in it.

Think Progress points to an interview with the Louisville Courier-Journal.   Here’s the video:

The transcript:

INTERVIEWER: Would you have voted for the Civil Rights Act of 1964?

PAUL: I like the Civil Rights Act in the sense that it ended discrimination in all public domains, and I’m all in favor of that.

INTERVIEWER: But?

PAUL: You had to ask me the “but.” I don’t like the idea of telling private business owners—I abhor racism. I think it’s a bad business decision to exclude anybody from your restaurant—but, at the same time, I do believe in private ownership. But I absolutely think there should be no discrimination in anything that gets any public funding, and that’s most of what I think the Civil Rights Act was about in my mind.

INTERVIEWER: But under your philosophy, it would be okay for Dr. King not to be served at the counter at Woolworths?

PAUL: I would not go to that Woolworths, and I would stand up in my community and say that it is abhorrent, um, but, the hard part—and this is the hard part about believing in freedom—is, if you believe in the First Amendment, for example—you have too, for example, most good defenders of the First Amendment will believe in abhorrent groups standing up and saying awful things. . . . It’s the same way with other behaviors. In a free society, we will tolerate boorish people, who have abhorrent behavior.

Politico’s Ben Smith notes that Rand got into this issue with NPR’s Robert Siegel, too.

SIEGEL: You’ve said that business should have the right to refuse service to anyone, and that the Americans with Disabilities Act, the ADA, was an overreach by the federal government. Would you say the same by extension of the 1964 Civil Rights Act?

Dr. PAUL: What I’ve always said is that I’m opposed to institutional racism, and I would’ve, had I’ve been alive at the time, I think, had the courage to march with Martin Luther King to overturn institutional racism, and I see no place in our society for institutional racism.

SIEGEL: But are you saying that had you been around at the time, you would have – hoped that you would have marched with Martin Luther King but voted with Barry Goldwater against the 1964 Civil Rights Act?

Dr. PAUL: Well, actually, I think it’s confusing on a lot of cases with what actually was in the civil rights case because, see, a lot of the things that actually were in the bill, I’m in favor of. I’m in favor of everything with regards to ending institutional racism. So I think there’s a lot to be desired in the civil rights. And to tell you the truth, I haven’t really read all through it because it was passed 40 years ago and hadn’t been a real pressing issue in the campaign, on whether we’re going for the Civil Rights Act.

SIEGEL: But it’s been one of the major developments in American history in the course of your life. I mean, do you think the ’64 Civil Rights Act or the ADA for that matter were just overreaches and that business shouldn’t be bothered by people with the basis in law to sue them for redress?

Dr. PAUL: Right. I think a lot of things could be handled locally. For example, I think that we should try to do everything we can to allow for people with disabilities and handicaps. You know, we do it in our office with wheelchair ramps and things like that. I think if you have a two-story office and you hire someone who’s handicapped, it might be reasonable to let him have an office on the first floor rather than the government saying you have to have a $100,000 elevator. And I think when you get to the solutions like that, the more local the better, and the more common sense the decisions are, rather than having a federal government make those decisions.

Doug Mataconis, Oliver Willis, and I were engaged in a brief Twitter back-and-forth on this one last night.  It’s a tougher question than it sounds, especially to a 20-something liberal.

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, circa 1964, was that there really was not right to freely associate in this manner in much of the country.   Even once state-mandated segregation was ended, the community put enormous pressure on business owners to maintain the policy.   That meant that, say, a hotel owner who wished to rent rooms without regard to color really weren’t free to do so.   More importantly, it meant that, say, a black traveling salesman couldn’t easily conduct his business without an in-depth knowledge of which hotels, restaurants, and other establishments catered to blacks.   Otherwise, his life would be inordinately frustrating and, quite possibly, dangerous.

In such an environment, the discrimination is institutionalized and directly affecting interstate commerce.   It was therefore not unreasonable for the Federal government to step in using their broad powers under the 14th Amendment.    I’m still not sure parts of the Civil Rights Act of 1964 (especially the issue in question here) or the Voting Rights Act of 1965 (especially treating individual states differently from others) are strictly Constitutional.   But they were necessary and proper in the context of the times.

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, I agree with Doug that 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.

Update (Doug Mataconis) I’ve been generally quite supportive of Rand Paul’s candidacy, and was quite pleased when he won on Tuesday night, but when I heard about this story late yesterday, starting with the NPR interview that set it all off, I started to cringe. This is one of those areas where philosophically “pure” libertarians get themselves into trouble politically, and it’s an issue that, quite honestly has no relevance to the 21st Century America.

Paul’s position is essentially the same one that Barry Goldwater took in 1964 when he voted against the 1964 act due to the provisions of Title II and Title VII covering private acts. In Goldwater’s view, the Constitution did not give Congress the authority to regulate purely private behavior. The Supreme Court held in Heart of Atlanta Motel v. United States and Katzenbach v. McClung, that these provisions were Constitution based upon Congress’s power under the Commerce Clause. It is, in all honestly, a tortured interpretation of a Constitutional provision that was originally intended to prevent states from impeding domestic trade, but it was also largely consistent with previous Supreme Court precedent. I think the decisions are wrong, but they are the law of the land. The Civil Rights Act of 1964 is not going to be repealed, and it serves no purpose for Paul to let himself be dragged into a debate about it.

Which is the main reason I cringed when I watched this unfold last night. It’s fine for libertarian bloggers to debate this issue among themselves, but a politician can’t allow himself to be trapped into a debate where he ends up defending segregated lunch counters in an election in the South. The damage is done and these clips will follow Paul from now to November, but he needs to put this issue behind him. Then, he needs to take a few days off.

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About James Joyner
James Joyner is the publisher of Outside the Beltway, an associate professor of security studies at the Marine Corps Command and Staff College, and a nonresident senior fellow at the Atlantic Council. He's a former Army officer and Desert Storm vet. He has a PhD in political science from The University of Alabama. Views expressed here are his own. Follow James on Twitter.

Comments

  1. john personna says:

    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.

    As I get older, I feel less inclined to argue the rightness or wrongness of this argument, and more inclined to observe what it says about the speaker’s worldview, one level up, so to speak.

    These are the comments of someone with a belief in their own argument, but also that everyone else should (and can) share it.

    These are not the comments of someone who recognizes a heterogeneous society, one in which they quite possibly hold a minority position.

    In this case, the best policy is not the one that passes a moral calculus, but one that works, more or less, for everyone.

    Like or Dislike: Thumb up 1 Thumb down 1

  2. James Joyner says:

    These are not the comments of someone who recognizes a heterogeneous society, one in which they quite possibly hold a minority position.

    Did you stop reading with the first paragraph?

    There’s a balancing to be done. First, there’s the Constitutional power of government vs. the rights of the citizens. Second, there’s the possibility that the local political culture can make real choice a fiction.

    I don’t really see the harm in, say, a Harley lover starting a bar and saying only those who ride in on a Harley are welcome. Or a Hispanic opening one and only admitting Spanish speakers.

    Anti-black discrimination, of course, has a horrible history and one that’s intertwined with governmental policy that helped enshrine it over the course of centuries. So it’s a special case.

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  3. john personna says:

    Ah, the genopoltiics page at wikipedia says that the gene-party linkage is less trusted these days, but that gene linking to political activity is holding up:

    Scholars therefore recently turned their attention to specific genes that might be associated with political behaviors and attitudes. In the first-ever research to link specific genes to political phenotypes, a direct association was established between voter turnout and monoamine oxidase A (MAOA) and a gene-environment interaction between turnout and the serotonin transporter (5HTT) gene among those who frequently participated in religious activities.[8] In other research scholars have also found an association between voter turnout and a dopamine receptor (DRD2) gene that is mediated by a significant association between that gene and the tendency to affiliate with a political party.[9] More recent studies show an interaction between friendships and the dopamine receptor (DRD4) gene that is associated with political ideology.[10] Although this work is preliminary and needs replication, it suggests that neurotransmitter function has an important effect on political behavior.

    I’m going to say, just because I love to say semi-outrageous things, that folks who look at these things as an abstract moral calculus, and not in terms of the distribution of heritable outlooks, are about a half century behind.

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  4. john personna says:

    Did you stop reading with the first paragraph?

    It was hard to concentrate after the first paragraph ;-)

    But I think you see with my follow-on that I’m going in a bit different direction here. Your other paragraphs talk about balancing values, I think, rather than that people might just be born to look at these issues differently.

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  5. sam says:

    But this is just one element in the Rand saga, and if I read the tea partiers correctly, not a very important one for them (for the general electorate this might just signal to it that Rand is nuts). However, The NY Times has this story today:

    Paul’s Victory Poses Test for Tea Party on Defining Principles

    Mr. Paul’s campaign from now to November will present the young movement its toughest test yet — as voters focus on what the Tea Party is for, rather than what it is against.

    Voters will have to decide whether they will embrace what Mr. Paul acknowledges are “tough choices” — like his proposals to raise the age of Social Security eligibility, to slash spending deeply enough to balance the budget every year even while cutting taxes and relying more on charity to provide the social services that the government has since the New Deal….

    [M]any people who support the Tea Party say the benefits of government programs like Medicare and Social Security are worth the cost to taxpayers; in a New York Times/CBS News poll last month, about 6 in 10 people who identified themselves as supportive of the movement said so, and 72 percent of those 65 and older did.

    Mr. Paul is honest with his supporters about how difficult it will be to balance the budget in practice.

    “In order to preserve our great nation, tough choices will have to occur,” he told supporters here on Tuesday night. “So many Republicans have been elected. and they say, ‘We’ll cut your taxes, but then we’ll bring you home the pork.’ It’s coming to an end because we can’t manage this debt.”

    I think it’s fish or cut bait time for the Tea Party movement as far as statement of principles goes: Are tea partiers just a bunch of populist rent-seekers, or are they really serious about curtailing government?

    Like or Dislike: Thumb up 1 Thumb down 0

  6. Michael says:

    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,

    There is no such thing as a “private business”, only “privately owned business”. A business must necessarily interact with some portion of the public in order to conduct it’s business, and it’s that interaction that is being regulated.

    Unless you think that the health department shouldn’t be in the business of telling restaurants not to serve spoiled food, you recognize this fact already.

    Like or Dislike: Thumb up 4 Thumb down 0

  7. [...] already noted this morning an interview the Paul did in which the issue of the Civil Rights Act.  The interview (which James has at the link) [...]

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  8. Steve,

    Here’s one for you — should a business owner in a state that allows for concealed carry of firearms be able to establish a policy that firearms are not allowed in his establishment ?

    This was one point that Paul raised in his interview with Rachel Maddow last night that she should have paid more attention to. Ironically, Paul would say that an anti-gun business owner should be able to say that guns aren’t allowed in his store, regardless of what stay law says.

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  9. “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.”

    There’s alot of truth in that statement.

    Nevertheless, Rand’s arguments as well as the authors make me extremely uneasy. I really have trouble envisioning a young Rand Paul marching with Martin Luther King and voting for and with Barry Goldwater simultaneously, though seeing as how many young people probably voted for both Ron Paul and Barack Obama, it’s not completely impossible. The argument that Goldwater made and that Paul is making a light case for obviously doesn’t appeal to civil rights advocates and will appeal to those who weren’t and still aren’t in favor of civil rights. Goldwater desegregated his own business, was pro-choice and in favor of gay rights, but his strict, excessively consistent philosophy would have led to the extension of the Southern civil rights status quo.

    Like or Dislike: Thumb up 0 Thumb down 1

  10. KipEsquire says:

    @ Michael 9:32 —

    I’ll say it: Health departments are not a legitimate function of government. That undertaking can be, and indeed routinely is, provided by the private sector. See also, “tort law” and “contract law.”

    Health departments also routinely fail cost-benefit analyses (i.e., they’re expensive) and serve as a pretext for Fourth Amendment violations cloaked as “administrative searches.”

    /digression

    Like or Dislike: Thumb up 1 Thumb down 1

  11. john personna says:

    I get this sense that there is a continuum from individualist to collectivist, and that people on both ends are outliers.

    An outlier can spend his life thinking the other 90% are “wrong” or he can get some self-awareness.

    Like or Dislike: Thumb up 1 Thumb down 0

  12. Anderson says:

    So, if Denny’s or Walmart or McDonald’s wants to tell Michael Steele, or Barack Obama, “sorry, we don’t serve your kind here, please leave,” Rand Paul is cool with that.

    Niiiice.

    If the man isn’t expelled from the GOP by this time next week, I think we can say the party officially tolerates racism.

    Like or Dislike: Thumb up 0 Thumb down 0

  13. James Joyner says:

    So, if Denny’s or Walmart or McDonald’s wants to tell Michael Steele, or Barack Obama, “sorry, we don’t serve your kind here, please leave,” Rand Paul is cool with that.

    He isn’t “cool with that,” he’s saying it shouldn’t be illegal.

    I’ve got more problem with it in the cases you mention, which are huge corporate chains that dominate markets. But I don’t know that it’s the state’s business whether Bob’s Rib Shack discriminates.

    Like or Dislike: Thumb up 0 Thumb down 1

  14. john personna says:

    We know from modern experiment that our brains readily and frequently make up a rational argument for something we just did or chose sub-consciously.

    It is a mistake to think of these sorts of arguments as a moral calculus, because everyone here is really just driven by how they want to live, how they want restaurants to be.

    The legal and moral justifications are decorations, added later.

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  15. [...] Rand Paul, the Civil Rights Act, and Private Discrimination [...]

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  16. Michael says:

    But I don’t know that it’s the state’s business whether Bob’s Rib Shack discriminates.

    Bob’s Rib Shack operates as a business only through the express permission of the state’s government. Bob is free to feed ribs to only the people that he chooses. But Bob’s Rib Shack, the independent legal entity, can be held to whatever standards of operation decided by the government that created it.

    Like or Dislike: Thumb up 1 Thumb down 0

  17. PD Shaw says:

    It was never “legal” under our Anglo-American system for the innkeeper, and those in similarly situated common callings, to deny service to a citizen. These were the privileges and immunities of citizenship. They belong to the citizen, no less than his property. And other than a brief moment after the Civil War where blacks enjoyed political representation, those privileges were not being protected by many states.

    The people who drafted the Fourteenth Amendment understood this and began drafting the first public accommodation law in 1870; the subsequent Civil Rights Acts were later tossed out by the same court that gutted the “privileges and immunities” clause. I believe most constitutional law scholars think they were wrong.

    Like or Dislike: Thumb up 2 Thumb down 0

  18. john personna says:

    I could imagine a world with “Racist Ribs” across the street from “Rainbow Ribs.” I’d go to Rainbow, would have fair confidence Racist would go out of business.

    But that’s not the point. Most people don’t want to live in a country with Racist ribs. So they passed some laws.

    Backers of Racist Ribs probably split between libertarian nerds, who don’t really get the more emotional, less intellectual, mainstream view, and the racists themselves.

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  19. Billy says:

    The people who drafted the Fourteenth Amendment understood this and began drafting the first public accommodation law in 1870; the subsequent Civil Rights Acts were later tossed out by the same court that gutted the “privileges and immunities” clause. I believe most constitutional law scholars think they were wrong.

    Many scholars do think the Slaughterhouse Cases were a travesty of justice and terrible constitutional law (and I agree with them wholeheartedly). The problem is that the Supreme Court doesn’t seem to agree.

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  20. The Rand Paul/Civil Rights Act controversy…

    Liberals and conseratives alike are all over the story of Rand Paul’s position on the Civil Rights Act of 1964, which he reaffirmed last night on MSDNC’s Rachel Maddow program. In a nutshell, Paul pretty much takes the position Barry Goldwa…

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  21. PD Shaw says:

    Billy, you’ve linked to one of the reasons I brought this up. It’s the [ahem] gun nuts who are probably the most vocal these days about their privileges and immunities. (Good Link too)

    The other reason I posted was to emphasize that the “commerce clause” issue is a construct and precedent. It’s not necessarily historical.

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  22. PD,

    You actually have a very good point here. The Supreme Court made a horrible mistake in the Slaughterhouse Cases, and I think it’s fairly clear that civil rights history in this country could have been very different had they given the P&I Clause it’s full effect and meaning.

    Unfortunately, they didn’t and even Justice Scalia isn’t interested in revisting the issue at this point.

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  23. Terry says:

    As a private business owner, you get certain government services for paying taxes such as police and fire protection, good roads, education for the youth. In return, you cannot discriminate in your business practices. You can market your goods and services to any subgroup you want, but you cannot discriminate.

    Under Rand Paul, we would have white only lunch counters, hotels, drinking fountains, and bathrooms at McDonald’s.

    It is morally wrong if you are a Libertarian, Tea partier, Republican, Democrat, White, Black, Hispanic, Asian, Christian, Muslim, Jewish, Buddhist, etc.

    Even Jesus Christ told the story of the good Samaritan. Samaritans were discriminated against in his day like the minorities are in our day. I doubt that Jesus would smile upon a restaurant owner who only fed the blacks in the ally outside the kitchen.

    Rand Paul should recognize this or he will lose the election even in KY.

    Like or Dislike: Thumb up 1 Thumb down 0

  24. Rand Paul’s Dilemma…

    As soon as he won the Republican primary in Kentucky, Rand Paul was accused of being a racist by those on the political left. Ben Smith got his digs in at Politico, and of course, Think Progress ratcheted up their……

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  25. Michael Reynolds says:

    You want to know why The Libertarian Party is a collection of cranks with no chance of attaining real power? Because they live in a fantasy world unconnected to actual people or actual events.

    When I was 16 I was a libertarian. By around age 20 I’d outgrown it. Libertarianism, like Marxism, is something one can understand in the young and stupid. In adults it’s ridiculous.

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  26. Vlad says:

    Here’s the thing: you seem to think that this is a defense of the libertarian viewpoint expressed by Paul:

    “The problem, circa 1964, was that there really was not right to freely associate in this manner in much of the country. Even once state-mandated segregation was ended, the community put enormous pressure on business owners to maintain the policy. That meant that, say, a hotel owner who wished to rent rooms without regard to color really weren’t free to do so. More importantly, it meant that, say, a black traveling salesman couldn’t easily conduct his business without an in-depth knowledge of which hotels, restaurants, and other establishments catered to blacks. Otherwise, his life would be inordinately frustrating and, quite possibly, dangerous.

    In such an environment, the discrimination is institutionalized and directly affecting interstate commerce. It was therefore not unreasonable for the Federal government to step in using their broad powers under the 14th Amendment. I’m still not sure parts of the Civil Rights Act of 1964 (especially the issue in question here) or the Voting Rights Act of 1965 (especially treating individual states differently from others) are strictly Constitutional. But they were necessary and proper in the context of the times.”

    But in reality, it’s an indictment of libertarianism as a philosophy that has anything useful to say about government in the real world. Presumably you think that racist provision of public accomodation services (along with racist hiring and wage decisions, I guess) should be allowed in 2010 because you don’t think racism is the problem now that it was in 1964. But the only reason that’s true is because the Civil Rights Act was passed in 1964!

    So the only “principle” you’re really putting forth is that federal intervention in private affairs isn’t justifiable, except when it is. Which is actually a fine worldview to have. But it’s not one based in any coherent philosophy about appropriate limits of federal, or other governmental, power.

    Rand Paul’s views don’t seem to have any coherent, principled basis either. Which makes it fair to point out that it’s the Civil Rights Act that gets his goat, but not, say, the mandatory “taking” of private property through taxation to finance overseas wars.

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  27. Marc says:

    “I don’t really see the harm in, say, a Harley lover starting a bar and saying only those who ride in on a Harley are welcome. Or a Hispanic opening one and only admitting Spanish speakers.”

    The problem with your examples is that the CRA does not prohibit anyone from opening a bar that caters to Harley riders. An owner can deck his bar out in as much Harley regalia as he could stomach and plaster as much information available that his is a Harley themed establishment. The CRA does not prohibit any of that; it prohibits the owner from banning black Harley riders, or Japanese Harley riders, or Jewish Harley riders.

    Same for a Spanish speaking establishment. If you do not speak Spanish but want to eat at a place where they only speak Spanish, have at it. The CRA does not prohibit the restaurant owner from only speaking Spanish, it prohibits him from only serving Spanish-speaking people. His clientele is likely to be primarily Spanish, and that is fine, but he cannot prohibit English-only speakers, or black Spansih speakers, or High School Spanish 3 class members.

    Here’s a thought experiment: Is America a better country, a country more close to its ideal, with or without the Civil Rights Act and the Clean Air Act and the Clean Water Act and Social Security and public schools and…

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  28. TangoMan says:

    I’m going to say, just because I love to say semi-outrageous things, that folks who look at these things as an abstract moral calculus, and not in terms of the distribution of heritable outlooks, are about a half century behind.

    Warning, Danger Will Robinson. If you veer away from creationist beliefs Michael Reynolds will stalk you and charge you with the thought crime of Racism.

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  29. TangoMan says:

    The argument that Goldwater made and that Paul is making a light case for obviously doesn’t appeal to civil rights advocates and will appeal to those who weren’t and still aren’t in favor of civil rights.

    This comment highlights one of the problems I have with the liberal view of the world. The operational presumption here is that there would be a mad rush to discriminate if liberals actually respected the fundamental right to freedom of association. The only thing preventing this dastardly and rampant discrimination is the force of law and the stripping away of people’s rights.

    My view is that very little would change if we shamed liberals into once again affirming the natural right of freedom of association.

    But Bob’s Rib Shack, the independent legal entity, can be held to whatever standards of operation decided by the government that created it.

    A proprietorship or a partnership is not an independent legal entity, therefore the government shouldn’t strip individuals of their fundamental human rights anymore than they should force the same restrictions of association on consumers.

    If you do not speak Spanish but want to eat at a place where they only speak Spanish, have at it. The CRA does not prohibit the restaurant owner from only speaking Spanish, it prohibits him from only serving Spanish-speaking people.

    How does that work for a male student who wants to attend a strictly female college?

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  30. [...] 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. [...]

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  31. [...] discussion of the Rand Paul civil-rights controversy, I’ll link some relative stuff here. James Joyner at Outside the Beltway:Doug Mataconis, Oliver Willis, and I were engaged in a brief Twitter back-and-forth on this one [...]

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  32. Vlad says:

    This comment highlights one of the problems I have with the liberal view of the world. The operational presumption here is that there would be a mad rush to discriminate if liberals actually respected the fundamental right to freedom of association. The only thing preventing this dastardly and rampant discrimination is the force of law and the stripping away of people’s rights.

    My view is that very little would change if we shamed liberals into once again affirming the natural right of freedom of association.

    The “liberal” view that human societies tend to include invidious racial discrimination unless and until such discrimination is made illegal by the governing sovereign has, oh, 2000 years of recorded history as evidence to back it up. This history includes the experience of blacks in large portions of this county until very, very recently. What happened to change things very, very recently? Oh, right — a “liberal” law that you claim is superfluous was passed!

    Your claim that government intervention is not needed to eliminate racial discrimination is based on what evidence, exactly?

    If this Rand brouhaha has made anything clear, it’s this: a libertarian really is someone who’s willing to tell you that his theory is more important than your reality.

    Like or Dislike: Thumb up 1 Thumb down 0

  33. john personna says:

    Warning, Danger Will Robinson. If you veer away from creationist beliefs Michael Reynolds will stalk you and charge you with the thought crime of Racism.

    The people I read, popularizers of recent science, are not terribly big on race as a concept. Some will go so far as to say there is no such thing as race.

    Certainly racial self-identity does not map reliably to genotype. You may remember the sometimes amusing discussions regarding “is Obama black?”

    And you may have seen the articles suggesting “prison makes you black

    (I notice that you sometimes capitalize Black, I think that’s weird.)

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  34. TangoMan says:

    What happened to change things very, very recently? Oh, right — a “liberal” law that you claim is superfluous was passed

    Your own argument highlights the invalidity of your supposition. How is it possible that a “human societies [that] tend[s] to include invidious racial discrimination” could voluntarily enact the CRA?

    The CRA came about because society is constructed quite differently from how you’ve modeled it. The CRA was a reflection of the times (though opposed by a minority), a reflection of societal views, and this allowed it to be passed. Societal mores change over time. American society was, and still is, being swept down a current of evolving views and the point on that journey was reached where the passage of the CRA became acceptable and our society’s journey has continued on since then, NOT simply because of the passage of the CRA, but because of the same forces of change which presaged the introduction of the CRA have continued to act.

    Your conceptualization that the people all around you would, given the chance, become damn, dirty, racist, discriminators speaks volumes about how you see society and the liberal’s role in society – the liberal is the one to be trusted with power for it is the liberal who knows best and must enforce that vision on an unwilling public for their own good.

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  35. TangoMan says:

    Certainly racial self-identity does not map reliably to genotype.

    Look, let’s not sidetrack the debate. I was just warning you of the consequences which arise when you don’t adhere to the creationist views espoused by Reynolds.

    As for your claim, it would be valid if we simply redefined the word “certainly” to have another meaning:

    For each person in the study, the researchers examined 326 DNA regions that tend to vary between people. These regions are not necessarily within genes, but are simply genetic signposts on chromosomes that come in a variety of different forms at the same location.

    Without knowing how the participants had identified themselves, Risch and his team ran the results through a computer program that grouped individuals according to patterns of the 326 signposts. This analysis could have resulted in any number of different clusters, but only four clear groups turned up. And in each case the individuals within those clusters all fell within the same self-identified racial group.

    “This shows that people’s self-identified race/ethnicity is a nearly perfect indicator of their genetic background,” Risch said.

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  36. Adriane says:

    Unless you think that the health department shouldn’t be in the business of telling restaurants not to serve spoiled food, you recognize this fact already.

    So, in your world, there are no stores selling day old bread at a discount…

    But please enlighten me, since the Government now owns GM, can I be denied a business license for selling only Fords or Toyotas? Why not? If the Government has the right to determine WHO I sell to, why can they not determine WHAT I sell?

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  37. Michael says:

    Look, let’s not sidetrack the debate. I was just warning you of the consequences which arise when you don’t adhere to the creationist views espoused by Reynolds.

    How does the irony not kill you? Surely that concentration would be lethal.

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  38. Michael says:

    So, in your world, there are no stores selling day old bread at a discount…

    Oh there are, but they aren’t selling molding bread and rancid meat as fit for human consumption.

    If the Government has the right to determine WHO I sell to, why can they not determine WHAT I sell?

    Generally the government only prohibits you from selling things, it doesn’t force you to sell things.

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  39. john personna says:

    “This shows that people’s self-identified race/ethnicity is a nearly perfect indicator of their genetic background,” Risch said.

    Shrug. I could tell that I’m Nordic, and that “the wogs start at Flensburg.” My genes would map to my stated regional identity. That wouldn’t make my assertion about the German race appropriate, or meaningful.

    You really are a crazy racist if you think that people knowing their heritage in itself validates race as a concept.

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  40. TangoMan says:

    Odograph (john personna): Certainly racial self-identity does not map reliably to genotype.

    TangoMan: “This shows that people’s self-identified race/ethnicity is a nearly perfect indicator of their genetic background,” Risch said.

    You made an assertion. I answered your assertion directly and invalidated it. The mapping of concepts between both statements is remarkable, thereby increasing the significance of the rebuttal.

    Now you’re off on some fantastic rant about the “german race” and your assertions about it. I have no clue whatsoever what you’re ranting about and the strawmen that you’re erecting to cover for your initial fallacious statement.

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  41. john personna says:

    No TangoMan, you did not answer my assertion, not directly.

    You relied on a not so subtle shift. You went from a concept of race as identifier (with membership in a group) to a concept of race as association (with correlation to origin).

    And then you get angry and bold about it.

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  42. john personna says:

    (The “German race” should have been obvious, that anyone can draw any BS line in the sand (or water) that they want. The whole gag was on the old British joke that “the wogs start at Calais.”)

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  43. Vlad says:

    Tangoman —

    You say this:

    Your conceptualization that the people all around you would, given the chance, become damn, dirty, racist, discriminators speaks volumes about how you see society and the liberal’s role in society – the liberal is the one to be trusted with power for it is the liberal who knows best and must enforce that vision on an unwilling public for their own good.

    So your evidence that civil rights laws are no longer necessary is that liberals are elitist power-mongers? Got it. And by the way: if laws against racial discrimination are unnecessary because people no longer discriminate, why are they such an intolerable infringement on the freedom of association? According to you, the only thing these laws prohibit is something that no one does any more anyway. Are you really that committed to defending the right to racially discriminate as an abstract principle?

    The reason that a society can simultaneously (1) have a serious racial discrimination problem and (2) have the political will to pass anti-discrimination laws is because societies are usually heterogeneous. A majority can be against racial discrimination that is practiced, legally, by a minority, and the racial discrimination will continue until the majority makes it illegal. Like, you know, the South with Jim Crow in the 1960s and earlier. Or, for that matter, the South with slavery prior to the Civil War.

    As for your causation argument — that changing social views facilitated the change in the law, rather than vice versa — let’s look briefly at the history of black-white relations in this country:

    1865 — Slavery effectively abolished in the South

    1865-1964 — Jim Crow

    1964 — Civil Rights Act passed in response to pressure from the civil rights movement

    2008 — First black president elected.

    During the first 100 years of blacks being guaranteed equal protection of law, but not having any effective protection from private or local discrimination, progress on race relations was somewhere between slow and nonexistent. In the 44 years since much (by no means all) private racial discrimination was made illegal, we’ve gone from separate lunch counters to President Barack Obama. Your claim that society would’ve made that leap even without civil rights laws is, um, light on the evidence. The southern blacks who participated in the civil rights movement — and actually lived in the Jim Crow south — certainly didn’t share your sanguine view.

    I don’t think people “all around me” are crypto-racist. I certainly don’t think I’m better than people “all around me.” What I do think is that history is too full of examples of unpopular racial minorities being stigmatized or scapegoated for any society, anywhere, to think that laws against racial discrimination are no longer needed.

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  44. TangoMan says:

    if laws against racial discrimination are unnecessary because people no longer discriminate, why are they such an intolerable infringement on the freedom of association?

    Because they serve as the philosophic and legal basis for overreach in the administration of regulations, kind of like how we’re now seeing charges of using “weapons of mass destruction” applied to someone who shoots up a school with a shotgun or the Times Square car-bomber.

    These laws give powerful tools to officials to pursue their own agendas part from the intent of the law.

    Are you really that committed to defending the right to racially discriminate as an abstract principle?

    Hey, if the Federal Government forced everyone to proclaim themselves a Baptist but didn’t enforce this requirement thus making it no more than a statement of abstract principle, I’m sure that there would be plenty of people stepping forward to argue only on the basis of rejecting an abstract principle which violates the conditions of the Constitution.

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  45. TangoMan says:

    In the 44 years since much (by no means all) private racial discrimination was made illegal, we’ve gone from separate lunch counters to President Barack Obama.

    Clear something up for me. Are you at all suggesting that the CRA had anything to do with the election of Obama? Specifically, did the CRA compel white voters to support Obama because he’s black? I’m not exactly understanding the significance of why you thought the Obama example was relevant to your argument. Would you please connect the dots or jettison the example, whichever you feel best furthers your point.

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  46. Generally the government only prohibits you from selling things, it doesn’t force you to sell things.

    Oh? Kelo anyone?

    And let’s not even talk about being made to buy things, whether you want them or not.

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  47. Steve says:

    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.

    No, the problem is that Congress and the courts(the courts in particular) are not supposed to bend, fold, and mutilate the Constitution based on passing “extreme and outrageous conditions”. The CRA is unconstitutional in several respects and should have been struck down.

    “I’m still not sure parts of the Civil Rights Act of 1964 (especially the issue in question here) or the Voting Rights Act of 1965 (especially treating individual states differently from others) are strictly Constitutional. But they were necessary and proper in the context of the times.”

    Wonderful. What peversion of the constitution will next be necessary in the context of the times? Government mandated health insurance? Regulation of political blogs? Once we’ve established that the Constitution means whatever is expedient, the sky’s the limit!

    It’s depressing to see so many on the right sayng “Yeah, the CRA was not constitutional, but it was necessary!

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  48. Vlad says:

    Tangoman —

    Yes, I’m saying the CRA enabled a black man to be voted President, even though of course it didn’t compel anyone to vote that way. My point is that outlawing discrimination has had a dramatic effect in reducing levels of discrimination, which in turn has had an effect on racial attitudes.

    If you’re old enough to have ever had frank discussions about race with whites who came of age before the civil rights era, you’ve almost certainly come across what I think of as “cool” racism. People who grew up in a world in which blacks were segregated from whites, and were seen as inferior, didn’t necessarily have any personal animus against blacks; in fact, they would tell you that they were perfectly happy with blacks, as long as they stayed in their place. But they certainly didn’t support integrated schools, and they would never vote for a black President (or governor, or mayor, or whatever). These weren’t bad people; they were people who grew up in a world where a lot of people — not everyone, but a lot — said that blacks were inferior and shouldn’t mix with whites.

    Then the civil rights laws are passed — not just the CRA, but all of the laws it enabled, like busing programs and affirmative action — and their kids attend integrated schools. And they work in integrated workplaces (because discrimination in hiring is illegal). And yes, they eat in integrated restaurants. And the idea that blacks and whites shouldn’t mix starts to seem vaguely ridiculous. And black candidates start winning elections even in white districts.

    And then those kids have kids. They grow up in a world where racial discrimination has been not just wrong, but illegal, for decades. They go to even more integrated schools, and even more integrated workplaces. And the idea of segregation seems not just wrong, but bizarre. As does the idea that “those people” are somehow unfit to do certain jobs. And a black man is elected President.

    Laws change attitudes. Period.

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  49. Steve says:

    The “liberal” view that human societies tend to include invidious racial discrimination unless and until such discrimination is made illegal by the governing sovereign has, oh, 2000 years of recorded history as evidence to back it up.

    America is founded on the supposition that the “governing sovereign” is the majority of the American people. It’s curius that liberals distrust individual humans while loving government so.

    The classical liberal solution to discriminaton against minorites is – separate countries for different peoples. Modern lefties detest that of course.

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  50. Steve says:

    Laws change attitudes. Period.

    Laws are not supposed to change attitudes, period. We’re not supposed to live in some totalitarian country where what the people think is molded by the damn state. The government is supposed to be the peoples servant. It is not supposed to look on the people as a potter does his clay.

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  51. john personna says:

    Laws are not supposed to change attitudes, period. We’re not supposed to live in some totalitarian country where what the people think is molded by the damn state. The government is supposed to be the peoples servant. It is not supposed to look on the people as a potter does his clay.

    Well if you think that law and societies evolve in perfect separation, you might make that work. When they evolve together it’s less obvious which was the chicken and which was the egg.

    (Just as the beliefs of societies and individuals evolve together over time.)

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  52. TangoMan says:

    And then those kids have kids. They grow up in a world where racial discrimination has been not just wrong, but illegal, for decades. They go to even more integrated schools, and even more integrated workplaces. And the idea of segregation seems not just wrong, but bizarre. As does the idea that “those people” are somehow unfit to do certain jobs. And a black man is elected President.

    What fairy tale land are you writing about? The South had schools segregated by state law, but most, though not all, northern states had laws which prohibited school segregation by race. Matters in the north, after the passage of the CRA, mostly continued on as before with informal segregation and that continues on to today. Liberal enclaves are notorious for this – the parents want to send their kids to good schools so they choose neighborhoods that are known to have good schools, and these neighborhoods are filled with homes selling for a premium to homes of comparable size in more integrated neighborhoods. The funny thing is that those good schools are not heavily integrated. We rarely read reports of good liberals seeking out schools that are 40% black, 40% Hispanic, 5% Asian.

    You see, people distinguish between matters of fairness and equality when there are low costs attached to them, such as people of all races operating within the common public space, and when fairness and equality come with very high costs to them, such as a diminished educational experience for their children, higher exposure to crime, etc. and where they can exercise their personal choice to minimize such costs. This bifurcated dynamic existed before the passage of the CRA and it still exists in strong form today.

    Paul’s argument is that the state has no business in fostering segregation so all state activities should be race neutral and the State shouldn’t involve itself in forcing people to integrate against their will. The attitudes towards racial integration have been changing significantly over time, which is why northern states barred school desegregation and the public sphere was integrating without government intervention. The costs of integrating in the public sphere were minimal to most people so this was an easy change to support. The reason that school busing was so unpopular was that it was forcing huge costs onto people’s personal lives and despite court rulings and government efforts to ram busing down the throats of an unwilling populace, the programs have faded from society’s radar. Today, the proportion of black students at white majority high schools is lower than it was in 1968.

    Laws are not supposed to change attitudes, period. We’re not supposed to live in some totalitarian country where what the people think is molded by the damn state. The government is supposed to be the peoples servant. It is not supposed to look on the people as a potter does his clay.

    I feel a little faint and weak of knee. My, my, I never suspected. Bravo.

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  53. [...] James Joyner is another who has found justification for the Civil Rights Act, while maintaining understandable concern about further expansion of government involvement in what should be private business decisions: 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. [...]

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  54. [...] encapsulates: It’s fine for libertarian bloggers to debate this issue among themselves, but a politician can’t allow himself to be trapped into a debate where he ends up defending segregated… in an election in the South. The damage is done, and these clips will follow Paul from now to [...]

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  55. Pug says:

    All the high brow intellectual contortions to defend Rand Paul’s position could just be done away with. You could instead just express your admiration for a real world businessman who stood up for his rights and made the exact argument Rand Paul and many of you are making.

    That would be former Georgia governor Lester Maddox. He was even willing to enforce his rights with an axe handle.

    There’s a real world out there, libertarians, and in the real world your arguments would make people like old Lester possible again. After all, you would have to side with him because you believe he was right.

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  56. James Joyner says:

    There’s a real world out there, libertarians, and in the real world your arguments would make people like old Lester possible again. After all, you would have to side with him because you believe he was right.

    That makes no sense. State discrimination is anathema to liberty.

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  57. An Interested Party says:

    State discrimination is anathema to liberty.

    Then why is the argument being made that laws which forbid state discrimination are anathema to liberty…

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  58. Michael says:

    Then why is the argument being made that laws which forbid state discrimination are anathema to liberty…

    The argument is against laws that forbid business discrimination, not state discrimination.

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  59. barry says:

    Private discrimination is as toxic to free markets as locating a copper smelter in a residential neighborhood or someone dumping raw sewage onto city streets.

    Private discrimination in housing, employment destroys the property rights of others.

    The notion that competition somehow will provide an alternative shows the naivete of the libertarian crowd.

    Under the Paul/Goldwater view, a drug manufacturer with a patent could restrict sales of that drug to Caucasians.

    Discrimination in housing restricts access to schools,libraries,hospitals and other services. Such losses cannot be easily replaced.

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  60. [...] Libertarian as Racist (5/20/2010) – Rand Paul is No Barry Goldwater on Civil Rights (5/20/2010) – Rand Paul, the Civil Rights Act, and Private Discrimination (5/20/2010) – Rand Paul Says He’s Being ‘Trashed Up and Down’ by [...]

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  61. John Galt says:

    Just like before, big media is trying to tear down a great man. Like his father Ron Paul, the debates were twisted with questions to make him look bad. If you think of Freedom and Liberty for ALL, you will see Rand’s answers run down the same track as our forefathers. Wake up America, you are being beat up with progressive and liberal BS. Freedom is for everyone, even the business owner! With every law a little Freedom goes away. Pass enough laws and the people are no longer free. DUH

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  62. barry says:

    You GOOPERs would sound a little less disinegenous if you should equal outrage when St.; Ronald quadrupled the national debt in eight years or when George II listened in on our phone calls. The same George II that cleared our air space so bin Laden’s relatives could leave the country wants to listen on our phone calls. Isn’t that a loss of freedom?

    Let us not forget that Alan Greenspan is one of you Randists. And he had not a single hesitation to print money to help Wall Street. Where was your outrage then?

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  63. Terry says:

    So according to John Galt, it is ok for white males to not be served at lunch counters or hospitals or by fire departments. Why is that ok? It protects all our freedoms as the founding fathers saw it.

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  64. barry says:

    I also notice where these “conservatives” like Jinda and Lamar Alexander suddenly want taxpayers in LA and Illinois to come to their aid and clean up the oil.

    I say get a bucket and mop and get a copy of Atlas Shrugged

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