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

Steven L. Taylor · · 27 comments

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.