Why on Earth---Did Rand Paul Waffle on Civil Rights?

May 28, 2010—It sure didn’t take long for Rand Paul’s political opponents to sharpen their daggers. Less than 24 hours after winning the Kentucky Senate Republican primary nomination on Tuesday, May 18, Dr. Paul, son of U.S. Representative Ron Paul, appeared on the Rachel Maddow Show. Maddow asked him about his stance on the Civil Rights Act. Then, when he didn’t give her a straight enough answer, she asked him again. And again. And again.

Dr. Paul made it clear, in a roundabout way, that he supported most of the 1964 law, which eliminated official, institutional racial discrimination and segregation. He also, however, conveyed that he had a problem with the one provision of the Act that interferes with private business decisions by preventing business owners from discriminating on the basis of race. He insisted that he personally found racism abhorrent, but his attempt to sidestep the blunt questions put to him by Maddow gave the impression that he had something to hide, or something to be embarrassed about. The resulting media frenzy prompted Paul to issue a statement the very next day stating that he “will not support any efforts to repeal the Civil Rights Act of 1964.”

Let’s be clear: racism is stupid, wrong, and disgusting. There is, however, a good, principled reason not to outlaw private racism. There are also good, practical reasons not to reopen the Civil Rights Act right now. Dr. Paul’s position, in other words, is perfectly defensible. But he could have deflected criticism and defused some of the current media circus by being clear and forthright about it from the start.

Racism Is Wrong

First of all, Dr. Paul could have been more explicit about what makes racism stupid, wrong, and disgusting. I personally find it morally repugnant, as many others do, but I also know that some people feel differently. If I want to make a strong case, I can’t rely solely on my emotional reactions and responses. I need to appeal to objective fact.

Fortunately, this isn’t very difficult to do. Racists prejudge people based on simple group membership. This is the basest form of collectivist thinking, offensive to any individualist worthy of the name. Racists also prejudge people based on the most superficial of characteristics. There is a great deal of variability in the human species, and no easy correlations with skin color. This requires us to judge people as individuals, according to “the content of their character,” as revealed by meaningful criteria such as their words and deeds.

Immoral vs. Illegal

If racism is wrong, shouldn’t it be outlawed? Certainly, government’s monopoly on the use of force should not be brought to bear against innocent people to restrict their freedom of association, or to mandate second-class citizenship for one race. This is precisely what the contemptible Jim Crow laws of post-Civil War America did. They institutionalized racism, which amounted to an initiation of force by government against its own people. The Jim Crow laws were rightly struck down by the 1964 Civil Rights Act.

But one provision of the 1964 Act also made it illegal for private businesses to discriminate against people based on the color of their skin. This is the provision singled out by Rand Paul. The reason for opposing it is a simple one: private property is private. People should be allowed to use their own property as they see fit, even if some people, like you and I and Dr. Paul, don’t like the way they use it. When you let people be free, some of them will act in ways you find offensive. That is not a sufficient argument for limiting their freedom.

But wait a second. People can’t use their freedom to rob from me or assault me, because that violates my freedom to be secure in my person and to use my property as I see fit. Doesn’t excluding me from a lunch counter harm me in the same way? In fact, it does not. It may very well offend me, but it “neither picks my pocket nor breaks my leg,” as Jefferson said of tolerating differing religious views. The only way one can maintain otherwise is by positing that I have some right to receive services from your restaurant, and that you are abridging that right by keeping me out. But whose property is it, anyway? Refusing to serve people, or give them loans, or rent them an apartment because of their race is plainly irrational. But individuals should be free to do irrational things with their own restaurants, capital, or real estate.

Choosing Your Battles

Having said all of this, there are good, practical reasons not to reopen the Civil Rights Act. The fact that it contains a provision that abridges the rights of business owners—a provision one might have argued against if one had had the chance back in 1964, as Dr. Paul indicated he would have—does not mean that one must militate for its amendment half a century later.

For one thing, reopening the Civil Rights Act would reopen old wounds. Racism—and the slavery it once condoned—is the worst stain on America’s storied past. Julian Sanchez, a research fellow at the Cato Institute and a contributing editor for Reason magazine, would go further. In the best argument I read against the pure libertarian stance outlined above, Sanchez writes, “[A]t the scene of a four-century crime against humanity—the kidnap, torture, enslavement, and legal oppression of African-Americans—ideal theory fails.”

To be more precise, ideal theory does not fail. Rather, the application of neat theory to messy reality is sometimes complex, requiring good judgment and a sense of proportion. For instance, as Sanchez suggests, respect for private property does not imply “the sanctity of property built on generations of slave sweat and blood.” Specific reparations are best, but sometimes impossible for lack of perfect record keeping. And government was surely responsible for bolstering the respectability of private racism. There might therefore be an argument to be made for not only stopping its own discriminatory practices but for reversing course, perhaps temporarily. While I cannot condone punishing people for the crimes of their forbears, seeing the objectionable provision of the Civil Rights Act as some sort of partial redress does make it easier to swallow.

At any rate, there is simply no popular mandate for amending the Civil Rights Act. Not enough people out there believe that private property, even when acquired lawfully and morally, is sacrosanct. The tsunami of smoking bans in private establishments in recent years is clear enough indication of that. So not only would attempting to remove the provision that abridges the rights of property owners be very divisive, it would also very likely fail.

Most importantly, there are bigger fish to fry now in the 21^st century. We live in an age of inflationary monetary policy feeding booms and busts, of monstrously large government bailouts of private businesses, of unprecedented levels of government debt, of a bloated education bureaucracy at the service of teachers instead of students, of ballooning health care costs and expanding health care regulation. The cause of liberty has plenty of serious threats that need to be met in coming years, threats that Dr. Rand Paul and others like him are prepared to counter. Opponents left and right would love to focus on Dr. Paul’s unpopular view that the Civil Rights Act is an imperfect piece of legislation, despite the fact that he thinks it was good overall and has no intention whatsoever of trying to change it. But come November, let’s hope this distraction is well behind us. It is the pro-liberty views of people like Paul on such things as the economy, education, and health that should be put to the test by voters in Kentucky and across the nation.

Why on Earth...? is a series of cultural commentaries by Bradley Doucet.

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