Bork made this case in The New Republic as the Civil Rights Act was being debated. It's a principled argument, and should be treated that way, without the usual stigmatization. There was a very solid constitutional case against the 1964 Civil Rights Act, which was why Goldwater opposed it. But as an empirical matter, I think the history of race in America proves the inadequacy of pure freedom to redress the darkest of human impulses - to own, torture and terrorize an entire race. Bruce Bartlett explains why:

As we know from history, the free market did not lead to a breakdown of segregation. Indeed, it got much worse, not just because it was enforced by law but because it was mandated by self-reinforcing societal pressure. Any store owner in the South who chose to serve blacks would certainly have lost far more business among whites than he gained. There is no reason to believe that this system wouldn't have perpetuated itself absent outside pressure for change. In short, the libertarian philosophy of Rand Paul and the Supreme Court of the 1880s and 1890s gave us almost 100 years of segregation, white supremacy, lynchings, chain gangs, the KKK, and discrimination of African Americans for no other reason except their skin color. The gains made by the former slaves in the years after the Civil War were completely reversed once the Supreme Court effectively prevented the federal government from protecting them. Thus we have a perfect test of the libertarian philosophy and an indisputable conclusion: it didn't work. Freedom did not lead to a decline in racism; it only got worse.

Worse, Paul's entirely abstract intellectual argument wrests pure principles out of an actual society, with actual historical atrocities, violence, oppression and contempt. That's why I cannot be a libertarian the way some others like Paul are. I do not believe you can reify an abstraction like liberty and separate it from the context - historical, cultural, moral - in which it lives and breathes and from which it emerged. I can believe in freedom and believe in equality of opportunity but I should be mature enough to see when there has to be a compromise between the two - and decide. On the issue of race in America, the libertarian right was proven wrong - morally, empirically wrong. Giving up the ancient and real freedom to discriminate was worth it - indeed morally and politically necessary for America to regain its soul.

This is what makes the tea-party movement un-conservative. It is dealing with the world as it would like it to be, not as it is. It has an almost adolescent ideal it cannot compromise. I think that makes the movement, in its more serious incarnation (like Paul), a useful addition to the public debate, especially in reminding the GOP of some core principles it threw away under Bush and Cheney. I'm with Conor on this. Its bright, fixed glare also helps us illuminate what we believe in - merely by revealing what we no longer believe in.

But all this makes the movement simultaneously unready and unworthy for government. And, in its tinges of racial and cultural panic, will further marginalize the GOP in its fast faltering attempt to win over the next generation, especially among minorities.

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