Why Rand Paul is wrong about the Civil Rights Act
Given that the Civil Rights Act is in no danger of repeal and the libertarian-ish wing of the Republican Party offers some interesting opportunities for coalition building on civil liberties and foreign policy, I’m kind of surprised by the liberal reaction to Rand Paul’s nomination. That said, everyone with libertarian sympathies can acknowledge that Rand Paul is completely, utterly wrong on desegregation. I was going to write a post about this, but then I remembered that Jason wrote a great paper explaining why the Civil Rights Act was a necessary response to institutionalized discrimination:
Some skeptics of the civil rights movement have viewed racial discrimination as an essentially private matter that did not warrant the extensive state intervention. This view is untenable. Although certain measures passed in the name of black civil rights still raise serious legal issues in light of strict constitutional construction, the civil rights movement also dismantled a wide variety of even more troubling measures. Most of these can be characterized as straightforward impediments to the freedoms of movement, trade, and association. Although, if given a free market and a neutral state, economic incentives will tend to work against racial discrimination, American history has never witnessed a neutral state. Instead, and until the mid-20th century, the market incentives that might have worked against discrimination were repeatedly frustrated. Recent historical scholarship, notably from left-leaning scholars, has done much to show the depth and surprising recentness of state support for discrimination.
As a result, even those not ideologically on the left can rethink the civil rights movement as a complex set of tradeoffs that moved the United States from one type of interventionism to another, much more benign one. On the whole, state intervention into the lives of ordinary citizens shrank in this area of life, rather than grew. Although libertarian and conservative intellectuals of that era viewed certain developments, notably the Civil Rights Act of 1964, with great alarm, this alarm was badly misplaced.
I guess this raises some interesting hypotheticals: If discrimination was pervasive and a purely private affair, would libertarians still support something as intrusive as the Civil Rights Act? Regardless, the idea that institutionalized segregation justified a countervailing federal response is totally correct. Somebody should tell Rand Paul.
I’m not sure why you’d be so surprised at the reaction–the civil rights movement was one of the most important roots of the modern liberal movement, and is widely seen as a triumph of that movement. It’s an essential part of the movement’s conception of itself; moreover, minorities represent a core component of the liberal electoral coalition. I would say that civil rights VASTLY outweighs civil liberties and foreign policy as a core concern of modern liberalism, at least in the sense of having more institutional energy and cohesion.Report
@Dan Miller, I’d agree with you here, but for two things: 1. Most of the reaction to which I assume Will is referring was independent of any discussion on Paul’s view of the CRA and in fact came about before the above-referenced interview; and 2. Paul is running for Senate, not President. The likelihood of him even having the opportunity to vote on legislation that would undo the CRA, much less actually garnering a majority to support that position approaches nil. He is, however, likely to vote on things having to do with military spending, civil liberties, and the like, on some of which he could actually provide a small counterbalance to the Blue Dogs.Report
Can’t argue with you on 2, but I had assumed Will was referring to the controversy over Paul’s remarks on Rachel Maddow’s show–before that I hadn’t really noted any specific incidents about Paul’s racial views, besides the ubiquitous distrust of any Tea Party candidate on that issue.Report
@Mark Thompson, So you’re saying you think liberals should get behind Rand Paul for the sake of liberaltarianism – civil liberties, anti-interventionism, etc.? Can’t we just hold out for a bette r breed of liberaltarian?
This is what bothered me about Jason’s tripartite discussion of the topic. It was sort of a small part of the argument, so I let it pass, but what reason is there to give up on a liberal-libertarian alliance around civil liberties in the national security area and the like, merely because Barack Obama has been profoundly disappointing on that score? The basic shared concern persists. In that issue area at least, liberals and libertarians were able to rally around what candidate Obama said he valued in the campaign. Liberals are no more responsible for the disappointment than libertarians. But that aside, what good does it do to make the intervening decisions dispositive of the viability of a coalition on the issue? There is an alternative – for both camps to declare Obama the obvious disappointment he is, and maintain shared commitment to the issue.
But just as one politician shouldn’t be able to deep-six such a coalition (otherwise what kind of a coalition is it?), neither should just any politician with nominally acceptable views somehow be forced down either camp’s throat. The libertarians who got on the Obama express got on entirely of their own volition. A few liberals might have made a speculative case that Obama might be acceptable to libertarians, but no one said, ‘For the sake of the liberaltarian venture and of Constitutional integrity, you must as a libertarian vote for Barack Obama.’ As Dan says, the kind of stuff we’re hearing from Paul now should make right-thinking people, and certainly does make liberals, recoil in horror (and he’s been saying it all along). If liberaltarianism (and therefore the Constitution or my civil liberties) depends on getting in bed with Rand Paul now, well, I’m not interested. I’ll look after my liberties in my own way, I guess.
Yglesias shares this Brink Lindsey discussion of Paul the elder from 2008, saying Rand’s views aren’t far off. I don’t know if that’s true, but the argument in Lindsey’s piece – he says, “I am a libertarian because I am a liberal.” – is worth considering anyway.Report
@Michael Drew,
I’d hold liberals far more responsible for Obama. First, because they were far more numerous among Obama voters, and second, because the leadership of the Democratic Party might have exerted what influence it had to seek out candidates more protective of civil liberties. They must have known that Obama was making promises he didn’t intend to keep.Report
@Jason Kuznicki, I’m with Jason. Obama is our puppy and we (liberals and even us neoliberals) need to accept responsibility for him and apply the heat when he gets lazy. The last thing we need is to start trying to read him out of the left for his mistakes. What are we, conservatives?Report
@North, Amen to keeping the heat on, but the amount of heat available to bring is limited. That’s what all this coalition talk is all about. On taking responsibility, the fact is, he’s just flat reversed himself on most of this stuff. There’s no need to read anything out of anything. He’s simply not doing what he said he would.Report
@Michael Drew, I know Michael, you and I can drink and commiserate about our disappointments. I’ve said it before “Don’t blame me, I supported Hillary” but on executive power I can’t assert with a straight face that she’d have given it up either. But then again she didn’t promise to be a new wondrous kind of politician.Report
@Jason Kuznicki, They “must” have, huh? Well, okay. But as I noted, that still doesn’t mean the shared interest between committed liberals and committed libertarians on these issues evaporates. Some liberals are simply in thrall to this charismatic figure at this time. Others aren’t. Coalition politics like this need to be about long-term values, and need to be carried out among the principled. The unprincipled are really irrelevant to the question Are you saying that because Obama has been disappointing on this score, that discredits liberals as a class and makes you uninterested in engaging in coalition with them around the issue for the long term? The Obama thing will wear off, or else he will pass from the scene. Isn’t this self-defeating? This is the one area where there really is common substantive commitment. I don’t see any reason to discount it because of short-term imperfect behavior. I really don’t know what “the leadership of the Democratic Party might have exerted what influence it had to seek out candidates more protective of civil liberties” means, but let me let you in on a little secret: the leadership of the Democratic Party is interested in winning elections – like all political parties. That’s why we’re talking about a trans-partisan, tans-ideological coalition for civil liberities and Constitutional checks – because it’s more. Moreover, the Democratic Party really couldn’t have picked someone who made much better promises on these things than Obama. Who might they have picked, and how were they to know, who would have kept the promises. I think you’re imagining a frankly absurd level of responsibility for individuals of particular persuasion for decisions that are pretty much one man’s alone, or at most a few. I really don’t see what is gained for the cause by insisting the failures of Barack Obama be held against individual 2008 supporters of him who still support the things he said he would do. You seem more interested in disqualifying people from being worthy of your company than in actually building a coalition.Report
@Michael Drew, I think you misunderstand my point. It’s not that liberals should accept Rand Paul or be friendly to him or anything like that. It’s that I’m befuddled by the way in which liberals were upset that he beat Greyson. At least with Paul there’s some area of agreement, which I can’t imagine existing with Greyson. Basically, I struggle to think of a single material* area in which Greyson would be more likely to cooperate with liberals than Paul. This was a Republican primary, so it’s not as if there was even a liberal protest candidate in the race. It was Greyson, Mitch McConnell Republican v. Paul, fringey libertarian(ish) Republican. And they’re upset that Greyson lost. It’s rougly (not exactly, I confess) equivalent to anti-war libertarians in 1972 (no idea whether this actually happened, so consider this a hypo) getting upset that McGovern beat Humphrey for the Dem Prez nomination because they deemed McGovern a radical leftist.
…And that says nothing about the fact that Paul’s victory makes it significantly more likely that the Dems will actually pick up a seat in Kentucky, of all places.
Put it this way: as a liberal, would you rather see a Paul-Conway race, with roughly a 20% chance of Conway winning (according to 538), or a Grayson-Conway race, with roughly a 1% chance of Conway winning? How is that decision even close, except out of a visceral disdain for anyone that the TPers like?
*By which I mean “issue that is likely to come before the Senate.”Report
@Mark Thompson, Waaa? There’re liberals that’re angry the establishment conservative lost? They must be out on the left flank because all my centrist liberal haunts are filled with hand rubbing and cackling and thoughtful eyeing of a suddenly vulnerable seat.Report
@Mark Thompson, Also – don’t take this as a full-throated or even half-throated endorsement of Rand Paul. I’d have voted for him if I lived in Kentucky, but I wouldn’t have been vocal about it, and it would have been a “lesser of two evils” sort of vote. Indeed, as between him and Conway, I suspect the decision would be tougher than you’d think, although I don’t know enough about Conway to say for certain.Report
@Mark Thompson, Yeah. As I was writing, I started to think “I might be going way past what Mark wrote.” But I just wanted to make the point that as much as I want to defend the liberaltarian project in this one area – national-security state issues – (because I think it’s mostly not viable in more meat-and-potatoes size-and-purpose of gov’t questions), I’m not willing to pursue it just anywhere it might lead. And after watching Paul repeatedly use the phrase ‘institutional racism’ to mean ‘governmental institutional racism’ in the Maddow interview last night, I knew this guy is suffering under some seriously stinkin’ thinkin’ that I just can’t get near. Private institutional racism is institutional racism. Whether we empower the government to deal with it is something we can in theory discuss (though I am not personally willing to put it on the table, hence my flight from the guy). But to see a guy manage to convince himself that ‘private’ somehow implies ‘not institutional’ is really pretty disturbing to me at this point in the game.Report
@Michael Drew, I would, though, say I’m not so sure anyone on the left is sad Greyson lost – I do see your point that in “material” areas, there is reason to prefer Paul to Greyson, who is pretty much just a Bush clone. The complaints come more in the “…But to gain that, look what we have to take with it!”, or “They call this an improvement?” vein.Report
How many purely private affairs would you like to make punishable by law, Will?Report
@Jaybird, Not many, but pervasive private discrimination is still a scary thought.Report
@Will, I agree.
I am opposed to pervasive private discrimination… but, so long as it remains *PRIVATE*, it also remains none of my business.
If we open the door to it being acceptable for the police to be able to arrest people for purely private affairs, then we must start talking about the First Amendment, Lawrence v. Texas, and all sorts of interesting things.
(For the record, I think that the excesses of the Civil Rights Legislation weren’t as bad as the wolvishness of the racism wearing the sheep’s clothing of “liberty” and “state’s rights”… but purely private affairs are, and ought to be, purely private affairs.)Report
@Jaybird, So what you’re saying is that denial of service on account of skin color or religion or the like is a matter of taste.Report
@Michael Drew, no, I’m saying that giving the cops the power to kick down doors and meddle with private things is a matter of morality.Report
@Jaybird, Rand Paul now disagrees with you:
http://voices.washingtonpost.com/plum-line/2010/05/rand_paul_spox_fed_govt_should.htmlReport
@Michael Drew, he’s a politician.
I am not surprised that someone who wants power over others (even when it comes to private things) disagrees with me.Report
@Jaybird, Well yeah Jay but the discrimination of the pre civil rights era was nothing approaching merely private. It was a concerted effort on the part of local and state government in partnership with private enterprise and entities. The consequence was devastating oppression and also generational negative economic impact. Do you read Coates over at the Atlantic at all? He points out for example how when the white middle class was arising in this country and acquiring homes and educations the blacks were getting redlined and discriminated against by a perfect storm of private and public malevolence. The economic scars of that history reach all the way into present day. How, then, the question is can we simply embrace libertarian non-intervention and leave those groups of people bleeding on the floor? If you spend eight hours beating a man with a stick and then finally stop doing so have you fulfilled your obligation to this person by virtue of no longer hitting him? Is it surprising that this person is incapable of keeping up with you in the marathon that you both have to run?
Now this line of argument makes me plenty uneasy. It leads to things like affirmative action and other kinds of preferential treatment that leaves a vile taste in my mouth. Worse of course is that I’ve never heard a good analysis of how we would measure and determine when such corrective government aid has been sufficient to undo the harms of the government oppression of the past. But if I have qualms about those areas the glib libertarian position that the effect of past persecution is irrelevant and that these peoples should hurry up and hike themselves up by their bootstraps seems equally uncompelling.Report
@North, it absolutely was *NOT* private in the South. Here’s one of the things that I quote all the time. It’s from Leon Bazile’s ruling in Virginia v. Loving:
lmighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.
This was a judge who was, I presume, appointed by the governor who was, I presume, elected by “the people”.
The question then comes:
At what point do we agree that the government has jurisdiction over this issue? Only when they agree with us?
Plessy v. Ferguson was bad… but we all agree that it fell under the government’s jurisdiction, right?
The Jim Crow laws were downright evil, right? But we all agree that the state had the right to pass laws and enforce them, right?
This is the fundamental problem that I have: I don’t see that The State had the “right” to pass or enforce those laws. They were tyranny.
Passing new, good, laws to overcome the old, evil, laws *IS* a step in the right direction. Sure.
But there is a fundamental problem bubbling under there and it will rear its head again.Report
@Jaybird, Well I agree with what you’ve wrote Jay and appreciate it. But to be honest I think you skirted the justice question. Saying that it was tyranny then and shouldn’t have been done is well and good. But it -was- done and what is to be done about it? I mean if we had some bacon we could have bacon and eggs… if we had some eggs.
If we had liberty we could have liberty and historic justice for all… if we had historic justice.Report
@North, what is to be done about it?
Well, let’s just have a whole bunch of elected representatives nominate a bunch of judges who will rule on laws passed and signed by the former group of elected representatives.
What could possibly go wrong?Report
@Jaybird, Well I guess. Goodness knows I’m far to cold hearted a neolib to be able to actually champion the idea of historic social justice. But it nags at me.Report
@North, dude, I sympathize.
I’m pretty sure that, 200 years ago, folks saw themselves as Children of the Enlightenment bravely looking the future in the face and, oh, so much better off than their ancestors who were, let’s face it, a mere half-step away from howling barbarism or squalid peasantry. Today? We snicker at them for being backwards slave owners who didn’t have much of a grasp of much of anything.
And they’re going to say similar about you and me in 200 years. If we’re lucky, they’ll add a preface about how much better we were than the rest of the howling barbarians and squalid peasants we were surrounded by.Report
@Jaybird, No doubt.Report
@North, “Today? We snicker at them for being backwards slave owners who didn’t have much of a grasp of much of anything.”
Huh? I thought we revered them as a blessed generation of gods who could do no wrong and gave us the word from on high, the sacred Constitution.Report
@North, Gus; I’d hazard to guess that we revere roughly a dozen of them as individual examples as such. The rest of their generation has no such reverence directed at them.Report
Somebody should tell Rand Paul.
http://www.politico.com/news/stories/0510/37548.html
Apparently, someone did.Report
I don’t buy it. Paul’s point is a valid one: the right to refuse to do business with someone is important, fundamental, needs no exceptions, and — most importantly — is a more constructive way of resolving social disagreements than it is to hand the federal government another arbitrary, unconstitutional power to misuse and abuse. Which they are doing, regularly and in spades.Report
When I’m asked this question, I often point to the discrimination suffered by gays and lesbians. Yes, there are official components to this discrimination, but they are nowhere near as rigorous as Jim Crow formerly was. There aren’t segregated schools, lunch counters, buses, and places of employment for gays and lesbians, and we’re not denied the right to vote, sit on a jury, or have any chance at a fair trial.
Interestingly, private businesses have been the leaders in rolling back anti-gay discrimination. They want to be able to compete for gay and lesbian employees, and they don’t care whether this makes certain bigots unhappy. In politics, where bigoted votes count as much as any other votes, things lag behind.Report
@Jason Kuznicki, Yeah, honestly the parallels between GLBT’s and African Americans strain badly in those areas. Homosexuals had what amounted to a personal cloaking device. They could circumvent and dodge the stones and arrows of thepr persecutors. African Americans never had the benefit of that dubious protection.Report
@North, I tend not to compare African-Americans and GLTBs but to compare anti-African-American bigots to anti-GLTB bigots.
That comparison can withstand scrutiny pretty well.Report
@Jaybird, Probably Jay, but the biblical injunctions supporting the former are (happily) pretty much extinct while those upholding the latter are quite healthy.Report
@North,
I didn’t mean a comparison either, but a contrast. There were many differences in state action toward the two groups, stemming above all (as you noted) from their differing legibility. That corporations have led the way in gay and lesbian equality is remarkable, and I think it comes in part from the fact that gays and lesbians are less legible to the state. Anti-gay discrimination is certainly not a purely private affair, but I think the contrast is instructive anyway.Report
@Jason Kuznicki, Well it’s lucrative for some reason. Probably connected to the fact that it requires a lot of concerted effort for gays to acquire one of those adorable lovable little financial black holes called children. Hetersexuals pretty much have to expend concerted effort not to have kids.Report
If discrimination were truly pervasive, then it wouldn’t be private. Cities and states have broad police (as in polis — city) powers.
If discrimination is pervasive, that means that local government officials, including police chiefs, mayors, councilmen and the members of the chamber of commerce, all buy into the idea. At that point, discrimination is de facto law of the land. What happens in a town with pervasive discrimination when a white restaurant owner opens his lunch counter to the oppressed minority? He gets beaten and the restaurant burned; nobody gets caught.
The failure of a government to prevent the consequences of pervasive discrimination, when the government has the power to do so, is public, not private, discrimination.Report
@Francis, Why do we have to pick just one? Obviously, government discriminated in the Jim Crow South, but private businesses and individuals did so as well. Quite frankly, I’m not sure you can disentangle the two quite that easily.Report
Just to repeat, he’s now reversed himself on the question: http://voices.washingtonpost.com/plum-line/2010/05/rand_paul_spox_fed_govt_should.htmlReport