Private Discrimination, Rand Paul, and the Civil Rights Act of 1964

I’m no fan of electoral politics, and never did think Rand Paul was a consistent libertarian or even as libertarian as his father, Ron Paul–though his recent remarks on the Civil Rights Act of 1964 make me think he may be more libertarian than he feels he can admit publicly. I don’t agree with many of his stated positions, but of late he’s being attacked for what is most libertarian: his view that private businesses have a right to discriminate on their own property (see, e.g., attacks by the monstrous Paul Krugman and an editorial from the New York Times).

Libertarians can debate whether the portions of the CRA64 that prohibit states and municipalities from discriminating on the basis of race, gender, etc., are libertarian or constitutional. As for the latter, the Fourteenth Amendment was illegally ratified, making legislation enacted pursuant thereto, such as the CRA64, unconstitutional (for more on the ratification issue, see Gene Healy’s The Squalid 14th Amendment). As for the former: libertarian centralists naively favor the federal government having broad powers to supervise the states, while libertarian decentralists and anarchists fear the central state and favor decentralization (see my posts Libertarian Centralists; The Libertarian Case Against the Fourteenth Amendment; Healy on States’ Rights and Libertarian Centralists; The Heroic Gene Healy on the 14th Amendment: “If this be heresy—then make the most of it!”; see also the insightful comments of J.H. Huebert quoted here).

But there can be no doubt that the provisions of the law that prohibit racial and other discrimination by private businesses in employment or accommodation (such as hotels and restaurants) are manifestly unlibertarian and unjust. Sadly, however, some libertarians actually endorse the state’s infringement on property rights as embodied in this law. Most of the prominent libertarian defenders of the unlibertarian aspects of the CRA64 seem to be associated with the Cato Institute, and include Brink Lindsey (see Cato Scholar Scolds Rand Paul, Gives OK to Soup Nazi; Lindsay’s stance is perhaps not surprising given his pro-war views), David Bernstein, Richard Epstein, and Roger Pilon (see my post Libertarian Centralists–Pilon’s stance is not too surprising, given his defense of the Police America Act). (Julian Sanchez, in a somewhat maundering article, seems to weakly defend Paul, but I’m not sure.) I don’t know if such a major deviation from libertarianism arises from shaky foundations (such as utilitarianism), naivety about the ability of the central state to do justice, or fear of a politically-correct backlash, but it’s pretty sad that a leftist is better on this issue than some libertarians–I have in mind Robert Scheer, who gave a surprisingly good and quasi-libertarian defense of Rand Paul on KCRW’s Left, Right and Center last week–he tears apart the Rand-bashing of his co-hosts Ariana Huffington (who drops the PC racism junk) and Tony Blankley (who says he agrees “intellectually” with Paul but still calls him a kook); see also Scheer’s article Who’s Afraid of Rand Paul? (Even John Fund and Aayan Hirsi Ali, both who seem libertarianish, gave a decent defense of Paul on the latest Bill Maher show, if memory serves). See also the partial transcription of Scheer’s remarks here:

I am not a libertarian. I believe in a vigorous role of the state. But the idea that this guy is being smeared in this way, and totally ignoring what got him elected. He’s opposed to the bailouts, Tony. You supported the bailout. You’re one type of Republican — he’s a different type of Republican. He’s opposed to the giveaway to the banks. He has argued that it hurt poor people that were conned into homes that they couldn’t afford and lost their life savings. That includes a lot of African Americans who got conned in that way. He’s for auditing the Fed. His father, if not for Ron Paul, we would never have an audit of the Fed. At least the Congress is now supporting that. He has defined, I think accurately, the lobbyists for these banks as thieves. And he has called for a ban on lobbying by any corporation that has a million dollar business with the government. I think that’s quite far reaching. He’s also insisted that we not go to war without a constitutional mandated congressional approval. And he said he wouldn’t have voted for the Iraq war. I don’t see anything kooky about that.

As far as his attitude toward the civil rights bill, he said he would have voted for it. What he is asserting is a position that the Jonathan Club, the California Club in Los Angeles, quite close to where this station is, took a case all the way to the Supreme Court arguing that it had the right to have this kind of discrimination. The Boy Scouts have taken this case all the way. So what he is arguing is — yes he is a libertarian — that the government should not discriminate, but he does believe these other matters are settled in the private sector.

This gotcha journalism that was launched against him says to me that the man has something important to say and the establishment is freaked out by him. So why aren’t we debating the banking melt down? Why aren’t we debating this giveaway to Wall Street? Why aren’t we debating being in Afghanistan and Iraq without Congress having declared war? These are the real issues that he has raised. And I think it’s a great thing that he is running. I wish him well. I was happy that he won. And frankly I am not so thrilled with his Democratic opponent who on in a very opportunistic way — this great Democrat — advocated an expansion of the death penalty before the courts could even decide on it. That kind of triangulation of Democratic hacks that hardly augers well for his integrity.

Libertarian Jacob “Bumper” Hornberger, in Rand Paul, Civil Rights, and More Liberal Hypocrisy on Race, sets out the principled libertarian case against laws banning private discrimination, as do others such as Tom Woods and John Stossel.

Update: See also Sheldon Richman’s excellent Christian Science Monitor piece Rand Paul and the Civil Rights Act: Was he right? (not that I care for the forced use of the left-libertarian “mutual aid” buzzword).

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  • Yes, I was surprised that there weren’t more libertarians out there defending Rand Paul. My first daily dose of libertarianism was Cato’s blog, which I still enjoy. However, I do find myself agreeing more with the LRC-Mises-type libertarians. What do you call yourselves? Anarcho-libertarians? Very unimpressed with Cato’s treatment of the issue. How can you, as a libertarian, disagree with Rand on this? If anything, Rand should be more vocal about his support of property rights and our protection from an ever-growing state.

  • Rand Paul is no libertarian

    Rand Paul’s own statements and positions indicate he views a strong, primary role of the State as a means to enforce cultural normality.

    Concerning Title II of the civil rights act, it should be noted that the left libertarians, whom you often criticize, mostly dissented from supporting it in the commentary that followed the Maddow v Paul debacle. I agree for the most part that “beltway libertarians” rushed to defend Title II because of political correctness.

    There is a legitimate, radical libertarian dissent from Title II, but it does necessitate accepting certain violations of the property rights of those who relied on Jim Crow laws for their enforcement. In other words, you would have to recognize a case for trespass disobedience in civil protest over illegitimately enforced property rights. You can’t take an atomistic view of property rights here because these rights are a function of zoning, regulations, etc.

    I discuss this here:

    Frankly, from a libertarian standpoint, if you are going to invoke the Feds as an enforcer of justice, it would make more sense, and be more just, to enforce reparations and redistribution of property in this historical context, rather than to constrain freedom of association under the auspices of the commerce clause to enforce public accommodation access to illegitimately held property that, frankly, was preserved. In many respects, the Civil Rights Act was a triumph of the Status Quo, in that it was direct social action by the african american community which had desegregated many of the lunch counters in the South(sans, no doubt, however, in certain places in the deep south such as Mississippi) , and it was this movement which resulted in political legislation. But the political legislation also seemed to neuter the direct social action of the african community, and the community settled into a sort of communitarian, group identity politics. So when you had the US Federal Government embark on instituting the New Jim Crow, built on the back of the Drug War, a war legally sanctified by a broad interpretation of the commerce clause, 45 years later, the United States now has the largest prison population in the world, half it comprised by african americans, and no one says a word. And that’s the problem with communitarian, group identity politics, the “leaders” end up getting bought off.

    Last note; the Paul v Maddow debate was a pretty sorry facsimile of the libertarian vs social democracy debate. We’ve has more intellectually compelling debates in the past, as I note here:

  • Most people unwittingly consider laws against private discrimination one of the greatest social achievements of the modern times. In my new article in support of abolition of anti-discrimination laws, I explain how these laws are nothing more than a tool of everyone’s enslavement.

    Read it at