Saturday, May 22, 2010

Libertarianism Meets Reality.

Rand Paul found out this week that once you have entered the national stage as a candidate for the United States Senate, your libertarian principles meet some limits.  After creating a firestorm by suggesting that he was not comfortable with those parts of the 1964 Civil Rights Act that ban private businesses from engaging in discrimination, Paul was forced to concede that he would have supported the Act.  Rand Paul may think this is an irrelevant and esoteric philosophical question, but it turns out to be highly important in political campaigns to make clear where you stand on historical issues.  Democratic candidates who supported the Iraq war were forced to explain their position or admit they were wrong.  It is just as fair to require Republicans to tell the public where they now stand on civil rights.

One response is to try to fudge the history, as at least one spokesman for the Republican National Committee tried to do by pointing out how supposedly ironic it is for Democrats to complain about Republican opposition to civil rights when it was the Democratic Party "which led the filibuster against the Civil Rights Act in 1964."   First of all, this claim is demonstrably untrue.  While a higher proportion of Democrats than Republicans did vote against the 1964 Act, these were mainly Southern Democrats who then promptly left the party and became Republicans.  The Democratic Party itself did not lead the filibuster; instead the party leadership supported the Act.  Second, the issue is not whether someone took a particular position in 1964.  The issue is whether a politician today supports the position that he or others took on that 1964 issue.  In other words, you are allowed to have been wrong in 1964, but you have to admit you were wrong.  In other, other words, even if you can gain some points with some segments of the electorate by standing up for states' rights or private property, you can no longer be taken seriously as a mainstream candidate if you still believe that restaurants or swimming pools or hotels that are open to the public should have the legal right to deny entrance to anyone based on their skin color.

I think we can take some comfort in knowing that the 1964 Civil Rights Act is now a sacred text almost on a par with the Declaration of Independence or the Constitution.   And we can also get some satisfaction from making people who spout empty slogans about keeping the federal government out of the way of the states or private business owners, confront real questions such as whether they really want to abolish the FDA or the FTC or the Department of Justice or any other agency that prevents private businesses from selling harmful products or engaging in discrimination.  And once a Rand Paul is forced to admit that there is a role for the federal government in protecting the public from unscrupulous private businesses, then all we are talking about is the reasonableness or the scope of those regulations.  We have no philosophical disagreements as a matter of principle.

("White's only" sign from University of Texas student site)


  1. And who protects us from government when it decides to impose its morality upon us? Government has done more to uphold racism, slavery, and discrimination than many would know. Case in point:

    Private owners of streetcar, bus, and railroad companies in the South lobbied against the Jim Crow laws while these laws were being written, challenged them in the courts after the laws were passed, and then dragged their feet in enforcing those laws after they were upheld by the courts.

    These tactics delayed the enforcement of Jim Crow seating laws for years in some places. Then company employees began to be arrested for not enforcing such laws and at least one president of a streetcar company was threatened with jail if he didn't comply.

    These private businesses (Bus, railroad, etc) did not want to upset their best customers--which happened to be black. Government power forced them to go against their best interests in order to comply with the social order of the day in the South which was lawful segregation. That is the crux of Rand Paul's criticism of government intervention in private business.

    It was the federal government that forced the state of Wisconsin to comply with fugitive slave laws after it had refused to. Again, that is the crux of Paul's criticism.

    Private businesses that wish to discriminate do it at their own peril. You don't need a law to tell you to do the right thing.

  2. What you are expressing sounds similar to the frustration that Rand Paul has with having what he thinks is a valid philosophical argument misunderstood. And I understand his argument and yours. I think that argument has limits, but I understand it. (I did attend the University of Chicago Law School, so I heard that argument a lot.)

    But even if that argument was valid, and even if government could be shown on balance to do more harm than good, you just can't say that it should be legal for businesses to discriminate based on race or sex or religion. You just can't. You can think that we don't need those laws, but it is just not a valid political position any more to argue that there should be no laws preventing discrimination. We needed those laws at one time and maybe we still need them, and repealing those laws would be seen as a step backward.

    So I'm sorry Rand Paul. Even if we give you the benefit of the doubt that you are not a racist, you just can't take the position that racial discrimination in public accommodations should be legal any more.

  3. VH, let me give you an example to prove my point. Let's say the government decided to repeal Title II of the 1964 Civil Rights Act, which is what Rand Paul appears to advocate. Not much would change, because it is just socially unacceptable nowadays for hotels or restaurants to discriminate. But suppose just one restaurant decided to put up a sign saying NO BLACK PEOPLE ALLOWED. And the government was suddenly powerless to do anything about it. In fact, if the owner wanted to be a jerk about it, he could demand that the police protect him from the inevitable riots that would break out in front of his restaurant. Do we need this?

    Rand Paul can still talk about protecting businesses from unnecessary regulations if he wants, and he can talk about freedom of association all he wants, but he cannot say that there should be no laws preventing discrimination in public accommodations. That subject is closed and he should be smart enough to realize it.

  4. You can think that we don't need those laws, but it is just not a valid political position any more to argue that there should be no laws preventing discrimination. We needed those laws at one time and maybe we still need them, and repealing those laws would be seen as a step backward.

    Paul doesn't seek to repeal these laws. And even if they were repealed (in some alternate universe because it will never happen), we both agree that we would not have an entire society revert to Jim Crow days. There may be that one business that does as you suggest (in some alternate universe) and put up a discriminatory sign and that does demand police protection but is it any different than the police protection provided to the KKK or any similar group during a rally? As disgusting as this may be, the racists would have their little hang out in the open for all to boycott and ridicule. I don't think a business that would do this would survive for long or even prosper much.

    I agree with you that it is not a valid political position and that Paul made a mistake by even exploring the implications of the Civil Rights act. Most of the public chooses to remain "rationally ignorant" and he jumped into a briar patch that doesn't have a sound-bite defense for his position---that's anathema to today's political reality.

  5. I'm glad we mostly agree on the political realities, and you are also right that Rand Paul is not advocating the repeal of the Civil Rights Act, so maybe this is a somewhat hypothetical or academic discussion. But I think politician's positions on historical issues are still important. We are still debating whether Vietnam was justified or whether we were right to drop the bomb on Hiroshima or the causes of the Civil War, and you can tell a lot about a political candidate by the arguments they make on those historical issues. At least I find those arguments really interesting.

    So I don't think you can gloss over what Rand Paul said by just saying he made a tactical mistake or by saying it is just a hypothetical question. I think his remarks reveal something important about his thinking. And while he did not say he would repeal civil rights, what he actually said was that if he had been in Congress in 1964 he would have wanted to modify the public accommodations title of the Civil Rights Act. That is a can of worms that you really don't want to open up. It's not just that you can't explain your position in a soundbite. It is that your position is simply indefensible. What you should say about Title II if you are a libertarian is that even if philosophically you might be uncomfortable with restricting the rights of business owners, in this case those restrictions were necessary and justified, and they have worked out very well for our society and are no longer controversial.

    Interestingly Paul did not mention Title VII, which also deals with purely private conduct, but which is still relevant today. If you compare the annotated code sections for Title II vs. Title VII, you would find that there have been hardly any cases at all raising issues about public accommodations, but many thousands of cases dealing with employment discrimination. So why would you want to stir up a dead issue? It is a sign that his philosophical positions are clouding his view of reality, and that he might not have that much of practical value to contribute to the debate.

  6. Well, I'll just leave this one final point: If Paul would have explained how government power was used to knuckle private businesses to implement a racist law they did not want and that federal power (with the private association of the Civil Rights Movement)was needed to then later buttress the unconstitutional law, then Rand Paul would have successfully articulated libertarian principles.

  7. That's a good point, and Paul actually did try to make that argument. He said he was firmly against government-sponsored segregation and he pointed out that segregation in the South was enforced by the government, and that it was right to overturn those segregation laws. But the point that he seems to forget is that abolishing legal segregation is not enough. You also need a law preventing private businesses from discriminating, otherwise people who engage in discrimination are entitled to call on the government to enforce their private discriminatory acts. In the example I gave of a restaurant that wants to serve whites only, if that were permitted by law, then the restaurant owner would have the right to call on the police to evict black people from his restaurant for trespassing. And that is where the distinction between public and private that Rand Paul wants to make really breaks down.

    Do you remember when restrictive covenants in deeds used to be really common? Those were purely private restrictions on property rights that prohibited owners of private property from selling to black people. The Supreme Court struck them down even though they appeared to be purely private transactions, because the courts are needed to enforce those restrictions. We forget sometimes that we rely on the government to enforce lots of private transactions. If someone breaches a contract, we count on the fact that we can sue, and we don't have to employ our own private enforcers to make others pay their private debts.