More on Rand Paul, Civil Rights and Balancing Choices over Liberty

Yesterday, I noted that now that Rand Paul has gone from a primary race to the general election that:  “Paul is now facing a very different kind of campaign” because he is now going to be scrutinized in new ways and will have to explain himself to a different kind of electorate if he is going to win.

James 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) included the following (which James also quoted, but it directly sets up my discussion below, so will include it again):

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.

First, the comparison is problematic.  While it is true that “Congress shall make no law…abridging the freedom of speech” it is equally true that there is no such equivalent right to use private property.  Indeed, not only are there no protections against laws being passed regarding the use of private property, laws are made all the time in that regard.  To shift for a moment away from Congress, an easy example is zoning.  And yes, there is a difference between Congress and the local zoning powers.  However, the fact remains that private property rights are simply not as absolute as free speech rights.

Second, Paul allows for banning discriminatory practices from entities receiving public funds.  I would note along those lines that there isn’t a business in existence that does not, in some way, benefit from public funds (even if they do not directly receive them).  The streets that bring the customers are constructed and maintained by public funds.  The police, fire and EMT services that protect and serve the businesses are provided for and maintained by public funds.  And then there are all those pipes and wires providing electricity and water, and so forth.  These are not entities that exist in a vacuum totally unconnected from the broader society, or from government.  Like it or not, there are societal responsibilities we all share as citizens and even as private property owners.

Third, the notion that the systematic treatment of segments of one’s population as second class citizens is acceptable and should not be addressed by government in the name of private property rights is problematic, to put it mildly.  Further, to ignore the broader context (first slavery, then Jim Crow and the like), which were all state-imposed destructions of liberty is to make the entire argument that he is trying to be a principled libertarian into a joke.  One of the fundamental problems with simplistic libertarian thinking of the type Paul is engaging here, is that it pretends like any given moment in time exists in a manner that is disconnected from a broader history.  One cannot simply say that private property rights are so sacrosanct that we must allow for discrimination when the state itself already used its power to create the conditions under which the discrimination took place in the first place.  Indeed, from a libertarian point of view, i.e., one that respects the rights of the individual above all else, the problems under discussion require a choice to be made between violating property rights or allowing a larger destruction of liberty (again, one created and enforced by the government to being with) to continue.

Put another way, and within the confines of a basically libertarian approach:  what is a larger harm to liberty?  Is it the imposition of non-discrimination policies on private businesses or is it the continuation of rampant discriminatory practices across society targeted at a specific segment of the population?

Further, the violations (from a Paulian libertarian perspective) of property rights here equaled not to the seizure of property or the cessation of property rights, but instead allowing whites and blacks to sit at the same lunch counter, allowing blacks and whites to use the same bathroom, allowing blacks and whites to sit where ever they wanted on the bus, and so forth.  The amount of liberty lost by banning such policies is rather significantly outweighed by the amount of liberty gained by the population no longer subjected to poor treatment on the basis of skin color.

Also, let’s note that the issue here went well beyond just where people could sit and what facilities they could use, but rather translated into a larger, societal treatment of a significant segment of the population.  It would have been far more difficult to move the country in the direction it needed to move in terms of the liberty and opportunity for African-Americans if private property was considered so sacrosanct that discrimination had to be allowed to continue in those venues.

Read the history of the South in the era under discussion and one will be hard pressed to argue with cogency that the market was going to solve the problems of racial segregation and discrimination.

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Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is Professor of Political Science and Dean of the College of Arts and Sciences at Troy University. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. The sort of simplistic theoretical revisionism that Paul espoused in the video is a significant reason why libertarianism doesn’t go very far outside of the south and the midwest, even among those who describe themselves as “fiscally conservative and socially liberal.” It flies in the face of social liberalism.

  2. Billy says:

    While it is true that “Congress shall make no law…abridging the freedom of speech” it is equally true that there is no such equivalent right to use private property. Indeed, not only are there no protections against laws being passed regarding the use of private property, laws are made all the time in that regard.

    As a constitutional issue, the first amendment right implicated is the freedom of (and from) association. Rand is actually legally correct in invoking it in the context of his views on the subject, notwithstanding that the courts have come down on the other side of the issue and has long been considered settled (at least until “balls and strikes” Roberts gets a hold of forty year old precedent and shreds it in the name of … well, I’m not at all sure what his jurisprudential philosophy is other than being a conservative doppleganger of the judicial activism that “strict constitutionalists” decry when they don’t like the results).

    I would note along those lines that there isn’t a business in existence that does not, in some way, benefit from public funds (even if they do not directly receive them). The streets that bring the customers are constructed and maintained by public funds. The police, fire and EMT services that protect and serve the businesses are provided for and maintained by public funds. And then there are all those pipes and wires providing electricity and water, and so forth. These are not entities that exist in a vacuum totally unconnected from the broader society, or from government. Like it or not, there are societal responsibilities we all share as citizens and even as private property owners.

    This is essentially the reasoning the courts have used in allowing regulation of businesses that are “open to the public.”

    Paul has a (losing) good faith constitutional argument here, but the fact that he’s allowed himself to be painted into a corner by Maddow, et al., goes beyond being politically tone-deaf and raises serious questions about the man’s judgment. I mean, this is his campaign face – what is his governing face going to look like?

  3. Rick DeMent says:

    There is no explicit right to “…freedom of (and from) association” in the first amendment. You might be thinking of the right to peaceably assemble which is a much different thing altogether.

    You could make a good defense that there is an implicit right to a freedom of association but then other unenumerated rights such as privacy are on the table and should be treated as constitutional provisions and not the result of misguided judicial activism.

  4. Billy says:

    Rick,

    Although it is not explicitly protected in the First Amendment, the Supreme Court ruled, in NAACP v. Alabama, 357 U.S. 449 (1958), freedom of association to be a fundamental right protected by it. In Roberts v. United States Jaycees, 468 U.S. 609 (1984), the Supreme Court held that associations may not exclude people for reasons unrelated to the group’s expression.

    (Hat tip to Wikipedia; no I have not verified the cites, but I distinctly remember this from Con Law).

  5. Read the history of the South in the era under discussion and one will be hard pressed to argue with cogency that the market was going to solve the problems of racial segregation and discrimination.

    This confuses me a bit. Since it wasn’t the markets that caused the racial segregation and discrimination, I’m not sure why the markets are held responsible for fixing it. These were very much political, cultural and civil rights problems. No one serious is going to argue in favor of racial discrimination and segregation or the status quo as it existed before 1964, but I think one has to be careful about casual assumptions that the way these problems were addressed was the best way or the only way to do so. It’s not like we’ve reached any kind of social Nirvana or economic Utopia today on these problems. Heck, some people will tell you it’s just as bad or worse today than it was then, but they seem to have a vested interest in keeping the perception of things as bleak as possible.

    I’m sure there’s another perfect being the enemy of the good issue in play here, but as has been noted, honest, rationale discussion is difficult to impossible since questioning any aspect of the civil rights mythology or social justice orthodoxy gets one instantly labelled a racist. It’s funny how good intentions seemingly immunizes the progressive left from the results of their actions but good intentions by the libertarian right are utterly dismissed out of hand in favor of epithets and motive questioning.

  6. DavidL says:

    Rachel Maddow can not get past her notion that the federal government has the power to ban such discrimination of which she does not personally approve. Maddow talks of private property as if it were the property of the government.

    To Maddow the ends simply justify the means. To Dr. Paul that is not a given. Maybe Paul will never able to win on this issue, but the media will never express any understanding of it.

    Consider this Maddow oppose the right of aprivate citizen to sell a lunch as he alone see fits, but supports the right of mother to kill her unborn child for any reason she sees fit. Funny denying Dr. King lunch at Woolworth does kill anybody, but abortion does. Maddow, like all liberals, has a problem keeping her priorities straight.

  7. PD Shaw says:

    The problem with the Jacksonian libertarian position is it blithely ignores the governmental framework that is required for it to exist. Slavery doesn’t exist without the support of courts and the force of government. Similarly, racial discrimination doesn’t exist without it either. Prior to 1964, Illinois, like many states, enforced racial covenants in real estate contracts. What that meant is if a black family moved to my neighborhood, I could go to court and get an order to have them evicted, thrown out on their street, and have their home put up for auction. That’s not a particularly non-statist vision.

    So Paul is willing to prevent the government from spending on Woolworth; is he willing to prevent the government from enforcing Woolworth’s contracts? Is he willing to prevent the police from returning their calls? Most likely the answer is “no,” because he believes that there is some framework of ordered liberty which necessitates the government to protect life, property and the privileges of its members in order for there to be some society worth enjoying.

  8. Interestingly enough Mr. Shaw, this terrible libertarian system of government allowed for laws to be changed to correct the errors of the past. Ultimately,it kind of comes done to whether you believe we are a nation of laws and of limited government with enumerated powers or rather a nation of men enacting whatever the whims of social justice du jour may be by fiat. I know it gets old hearing it, but the perfect remains the enemy of the good.

    I’m certainly not trying to defend slavery, Jim Crow, or any of the wickedness that used to, and in some cases still does, exist. Just noting that you need to be careful what you wish for once you decide to throw the baby out with the bathwater.

  9. TangoMan says:

    Second, Paul allows for banning discriminatory practices from entities receiving public funds. I would note along those lines that there isn’t a business in existence that does not, in some way, benefit from public funds (even if they do not directly receive them). The streets that bring the customers are constructed and maintained by public funds. The police, fire and EMT services that protect and serve the businesses are provided for and maintained by public funds. And then there are all those pipes and wires providing electricity and water, and so forth. These are not entities that exist in a vacuum totally unconnected from the broader society, or from government. Like it or not, there are societal responsibilities we all share as citizens and even as private property owners.

    Wow, that’s a pretty slippery, or sloppy, form of argument. There is no connection between the concepts of receiving public funds and benefiting from the expenditure of public funds.

    Roads exist for the public good. They exist to facilitate travel across an area. They don’t exist to facilitate travel to a specific business. Engage in the mental experiment of putting a Wal-mart in the desolation of Alaska, 100 miles from the nearest road and then going to the citizenry and asking them to build a road to the Wal-mart as a form of public good. It won’t happen because the benefits of that road are disproportionately directed to Wal-Mart and shared with Wal-Mart customers, but there would be no benefit to other parties.

    Secondly, the concept that obligation must fall on private actors because they receive ancillary benefits that arise from the actions of other actors is quite muddled. If I develop my home’s property in an aesthetically pleasing manner, thus increasing the resale value of my home then this increase in value will benefit my immediate neighbors in that it will also slightly raise the resale value of their homes, ceterus paribus. The fact that they’ve benefited from my actions should in no way compel them to act in a fashion that I dictate nor should my choices, undertaken for reasons independent of raising my neighbor’s property values, grant me the right to intrude on their personal dealings.

  10. Rick DeMent says:

    @ Billy

    Although it is not explicitly protected in the First Amendment, the Supreme Court ruled, in NAACP v. Alabama, 357 U.S. 449 (1958), freedom of association to be a fundamental right protected by it. In Roberts v. United States Jaycees, 468 U.S. 609 (1984), the Supreme Court held that associations may not exclude people for reasons unrelated to the group’s expression.

    Right and in Roe v Wade the court said that the right to privacy was a fundamental right. So either they are both fundamental rights or they are both bogus rights created out of thin air by activist courts (which is my point whenever anyone brings up “freedom of association”)

  11. Billy says:

    Rick,

    Are you suggesting that NAACP v. Alabama and Roe v. Wade are not the law of the land?

    If not, how is anything you’re saying relevant as to whether Rand Paul has a good faith legal argument here?

  12. PD Shaw says:

    Charles, as I indicated in another link, I believe we are a country that was founded on certain English customs and traditions that laid importance on the idea of travel and believed it obligatory for innkeepers and taverns to make their accommodations available to all comers. To have the liberty of movement through the land, some order is necessitated.

  13. Rick DeMent says:

    But there are no rights in the constitution that are not subject to limitations. Your rights are only sacrosanct up into the point where they interfere with the rights of others. Businesses involved in public services like food and lodging, or even the sale of goods to the general public have a much more limited right to “freedom of association” then private clubs do because of the limitations on the right to move and travel freely that an absolute right might impose on other individuals.

    I mean even in the abortion debate the central question is not whether the right to privacy is unlimited; it’s clearly not. The question is if a 12 week old fetus has rights in the first place. You can disagree on that score but the notion of a right to privacy is not any more of a creation of and “activist” judiciary then freedom of association.

    By the same token neither right is unlimited as Mr. Paul might have us believe.

  14. Rick DeMent says:

    @ billy

    No I’m saying they are the law of the land. but I’m also saying they are not unlimited. Privacy does not give the right to escape investigations d9one in accordance with the law and freedom of association does not give you the right to deny services to people when those services are otherwise offered to the public.

    You can have a club with exclusive membership, but you can’t have a hotel open to the public and deny that service to people arbitrarily. that would impede on their rights to travel freely and engage in commerce.

  15. Billy says:

    You can disagree on that score but the notion of a right to privacy is not any more of a creation of and “activist” judiciary then freedom of association.

    As a sometime constitutional scholar I categorically disagree with this. Read the applicable caselaw – there is nowhere near reliance on the emanations of penumbrae in the freedom of association as there is the right to privacy.

    That said, the difference is undoubtedly one of degree (and both are in the same vein and equally explicit as the “individual” right to bear arms), but the “activism” you seem intent on decrying has been heavily at work since Marbury v. Madison, and any informed, intellectually honest reading of 200+ years of caselaw necessarily acknowledges that the term is a political bludgeon, not an accurate description of how the judiciary actually operates.

    In any case, this discussion is unrelated to my original point, which was that, while Mr. Pauls’ legal arguments have been repeatedly defeated over the last fifty years, they are not without some constitutional basis.

  16. Grewgills says:

    Since it wasn’t the markets that caused the racial segregation and discrimination, I’m not sure why the markets are held responsible for fixing it.

    I think that argument is that the markets could not be counted on to fix it, particularly in the areas where Jim Crow laws were in favor.
    I grew up in Alabama in the 70s and 80s and even then there were businesses that flouted the law and were not punished. If it were not for the CRA most of the businesses in AL would have still been segregated into the 80s at least and quite possibly even now. There would have been few places where African Americans would have been able to eat, shop, and buy gas on their way through AL assuming they would want to go there other than to protest the unjust situation.

  17. Rick DeMent says:

    As a sometime constitutional scholar I categorically disagree with this. Read the applicable caselaw – there is nowhere near reliance on the emanations of penumbrae in the freedom of association as there is the right to privacy.

    Oh for crying out loud are you crazy? there is an entire constitutional amendment concerning the right to unlawful search and seizure, and against self incrimination, if those aren’t meant to support the idea that the founders saw privacy as a fundamental right then the whole notion of “emanations of penumbrae” has no meaning whatsoever.

    In any case, this discussion is unrelated to my original point, which was that, while Mr. Pauls’ legal arguments have been repeatedly defeated over the last fifty years, they are not without some constitutional basis.

    Well “some constitutional basis” is a really really low bar, it’s like saying you can read whatever you want into the constitution and frankly we all do. By that same token you can say the same exact thing about civil rights legislation but it has the benefit of being the law of the land. So what it comes down to is personal preference rather then objective criteria.

  18. Billy says:

    there is an entire constitutional amendment concerning the right to unlawful search and seizure, and against self incrimination, if those aren’t meant to support the idea that the founders saw privacy as a fundamental right then the whole notion of “emanations of penumbrae” has no meaning whatsoever.

    Careful Rick, I just got you to defend Roe. 🙂

    So what it comes down to is personal preference rather then objective criteria.

    Well, this is the problem with Rand’s reading of the constitution (and interpreting caselaw), but you definitely state an oversimplified case. Notwithstanding exceptions that prove the rule (like Citizens United), the courts are generally not in the business of inserting their personal preferences into the constitution. There are tomes of discourse on these topics, and the best judges and scholars are the ones who have internalized the arguments and come to coherent interpretations despite their disagreement with the results.

    The point is, there is no such thing as an objective criteria when it comes to the constitution, or even other laws. There are “strict constructionist” who argue that the framers’ apocryphal texts stating precisely what they meant when they wrote the constitution should be disregarded, and don’t ever cite legislative history to a “strict constructionist” who disagrees with the result you’re seeking on a given law. The constitution is purposely vague, which is why it has held up for so much longer than just about every other foundational document in modern society, and it bears the occasional interpretation. Some courts will screw that up, but it doesn’t mean that we can throw the baby out with the bathwater.

  19. anjin-san says:

    good intentions by the libertarian right

    I’m not sure how I see bringing Jim Crow back is a good intention…

  20. Max Lybbert says:

    On the one hand, the Civil Rights Act and court cases such as Heart of Atlanta Motel v. United States were important catalysts in societal change and the end of Jim Crow. On the other hand, they also laid the groundwork for several less noble societal changes. Heart of Atlanta, for instance, expanded the definition of “interstate commerce” so far that it’s amazing that there is anything that doesn’t fall under it.

    Of course, the struggle for civil liberties began long before the 1960s. The most famous effort was Reconstruction. But the Great Migration had a larger and more lasting effect than anything the federal government accomplished during Reconstruction. And I would argue that the Second Great Migration actually delivered on the promises made by the Civil Rights Act.

    While the Civil Rights Act definitely improved the world, I can’t help but wonder if there wasn’t a better way. I believe Rand Paul’s position is similar.

  21. Herb says:

    Pretty effective take-down of “simplistic libertarian thinking,” if you ask me.

  22. Rick DeMent says:

    @ billy

    I do support Roe at least the part that holds up privacy as a right. So what? The hand wringing to the contrary I’m not so sure it was the terrible decision it has been made out to be by some …but that is for another thread.

    The constitution is purposely vague, which is why it has held up for so much longer than just about every other foundational document in modern society, and it bears the occasional interpretation.

    I would go farther then that. There is a lot of evidence to suggest that not only was it written purposely vague, but that’s exactly how the various factions wanted it to give them wiggle room in future political questions. almost every president involved inn the constitutional debates were involved in some legislative battles that involved taking positions on constitutional interpretations counter to what they argued during the debates.

    Heart of Atlanta, for instance, expanded the definition of “interstate commerce” so far that it’s amazing that there is anything that doesn’t fall under it.

    And that’s the rub, at the end of the 18th century it was possible to have a business that was devoid of any taint of interstate transactions. buy the end of WWII there was virtually nothing that didn’t involve interstate commerce to the point where not offering a public accommodation was a severe interference on the right to engage in said commerce. Now states are almost an antiquated almost irrelevant anachronism when it comes to commerce and increasingly nations are as well. Private businesses need to operate in a world so interconnected that Pauls’ view on the rights or private businesses seem, at best, naive.

  23. Billy says:

    Now states are almost an antiquated almost irrelevant anachronism when it comes to commerce and increasingly nations are as well. Private businesses need to operate in a world so interconnected that Pauls’ view on the rights or private businesses seem, at best, naive.

    While I believe that the development of the interstate commerce clause has been one palpable overreach after the other, this is exactly right, at least in the context of the law as it has been refined to the present. We can (and do) debate the merits of this development and the unintended consequences derived therefrom, but overarching federal power is a fact that is likely to continue for the foreseeable future.

    I think we’ve been tilting at windmills a bit, and our reading of Paul’s position on the subject is basically identical.