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Why Libertarians (and Rand Paul) are wrong about The Civil Rights Act

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By Steve Menendian

Following his tea-party insurgent Senate primary victory over the establishment Republican candidate in Kentucky, Rand Paul created waves when Rachel Maddow forced him, uncomfortably, to admit his opposition to parts of the Civil Rights Act.   To many in the civil rights community, and to the political center, this comes as a shock.

It shouldn’t be.

For years, libertarians opposed government interference with private business, whether that means opposition to environmental regulation, labor laws, or anti-discrimination laws.  The son of libertarian presidential candidate, Ron Paul, it’s not surprising that Rand Paul also believes those things.    Rand Paul has made it clear that he’s not in favor of a repeal of the Civil Rights Act of 1964, and that he supports the vast majority of it.    What’s the problem then?   He specifically opposes the provisions that prohibit discrimination in what are known as ‘public accommodations,’ which are really private businesses such as hotels, movie theaters, or lunch counters.

His view is that, while private racial discrimination is anathema and despicable, it’s not something that the government should regulate.    His argument, a libertarian argument, is that regulating private discrimination goes beyond the sphere of government authority.   In addition, he argues, private discrimination is better regulated by market forces.   In his view, and in the view of many libertarians, the private market would regulate and weed out businesses that discriminate, since business with what economists call a ‘taste for discrimination’ would lose patrons.

They are wrong.

They are wrong, first and foremost, because they miss the point.   Discrimination isn’t about economic efficiency; it’s about morality, fairness, and a basic conception of equality; it’s about justice.

There is a broad literature in economics about the efficiency of slavery, and whether, in time, the institution of slavery would have withered and died, as it did in many northern states.   This literature, while fascinating, is beside the point.   The abolition of slavery was a moral imperative, not an economic one.   The abolitionist movement emphasized the contradiction between the values of the young nation and the institution of slavery, a contradiction which the founding fathers struggled with.

Similarly, the prohibition of private discrimination in ‘public accommodations’ is a moral issue, as are a host of regulations we impose on business.    For example, we prohibit businesses from exploiting child labor based on a moral judgment which says that it is wrong.    At the turn of the 20 th Century, growing opposition to child labor in the North caused many factories to move to the South, until national child labor laws were passed.

Rand Paul’s viewpoint, that private discrimination on the basis of race should not be illegal, would seem to suggest that he opposes the 1968 Civil Rights Act (aka  the Fair Housing Act) in its entirety, since, unlike the Voting Rights Act, the Fair Housing Act targeted private individuals, not states.   And, his position would also seem to permit discrimination not just on the basis of race, but on the basis of sex, religion, familial status, and disability.    Someone should ask him if he would repeal the Fair Housing Act, since that is the logical consequence of his position.   Then, he wouldn’t be able to hide behind state-targeted provisions.

But there are also other reasons which make it wrong.   Rand Paul claims that “intent of the legislation… was to stop discrimination in the public sphere and halt the abhorrent practice of segregation and Jim Crow laws.”   He’s wrong.   The Civil Rights Act was not simply targeted at state sponsored behavior.  After all, the Jim Crow laws and the public segregation and discrimination embodied in them were a manifestation of the values of the society, and the individuals within it.

In the South, segregation and Jim Crow were an expression of the values of the society, of the extant social norms and mores.   Those values were also present in the north, except that segregation was more a matter of practice and custom than legislation.   The Civil Rights Act targeted those laws, without question, but it also targeted the practices, values, norms, and prejudices from which those institutional forms of discrimination were an expression.   It targeted the North, not simply the South.   Rand Paul and other libertarians are attempting to rewrite history by suggesting that the Civil Rights Acts were merely targeting the institutionalized expression of these values.   The Fair Housing Act (aka Title VIII of the Civil Rights Act), which targeted private housing discrimination, belies this point.

But even more deeply, the private/public distinction at the heart of the libertarian argument is flawed.    As Justice Kennedy put it in his concurrence in Parents Involved: “The distinction between government and private action, furthermore, can be amorphous both as a historical matter and as a matter of present-day finding of fact.   Laws arise from a culture and vice versa. Neither can assign to the other all responsibility for persisting injustices” (emphasis added).

He’s absolutely right.

In fact, the relationship between individual racist attitudes and law is at the heart of Chief Justice Taney infamous Dred Scot opinion.   Chief Justice Taney held that persons of African descent were not – and could never be – citizens of the United States because white folks, not simply white governments, regarded them as inferior.  It was the way in which white people in their private pursuits regarded black folk, not simply how states and white governments regarded them that was decisive:

“[Persons of African descent] had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion.”

Because blacks were regarded as inferior, both in ‘morals as well as in politics,’ Chief Justice Taney reasoned that they could not possibly have been part of the political community that formed the nation, and therefore could not be full and equal citizens of that nation.    It was the prejudices of white people, not the discrimination and prejudices of the states, that ultimately led the Chief Justice to inscribe a race line into the heart of American citizenship.    The Fourteenth Amendment, the Reconstruction Amendment that underpins the Civil Rights Acts, was passed specifically for the purpose of overturning Chief Justice Taney’s legal holding.  It did precisely that, first and foremost, by extending the status of national citizenship to all persons born or naturalized here, not simply white persons.    And it was passed over the objection of President Johnson, who vetoed the precursor Civil Rights Act of 1866 precisely because he believed it went too far, reaching beyond state action and into private conduct, and was therefore unconstitutional.   In fact, the Fourteenth Amendment was passed to override such objections, and put them to rest forever.

The distinction that Rand Paul is making between private and public discrimination, between state sponsored segregation and Jim Crow and private discrimination, is a false one.    Not only are laws a product of private values, but laws also drive and influence private attitudes.   A history of race in North America makes clear that racial attitudes and racial prejudices were, in large measure, a product of colonial laws, such as colonial anti-miscegenation statutes, which accelerated the understanding of racial difference.   In fact, colonial elites (the colonies were not democracies) passed the first anti-miscegenation law in 1662, and did so specifically to keep the races apart as a way of color-coding labor, a process instrumental to the development and promotion of racial prejudice that would accompany and come to justify full blown racial slavery.   As Steve Martinot points out, if there had been general antipathy to mixed marriages, its occurrence would have been minimal or required no law to prevent.   As a result, these colonial statutes, and others serving similar ends, were a precondition to the full development of a racial worldview, and the racial prejudice that it engendered.

Private attitudes and private market decisions are often a product of or influenced by state action, and state action is often a product of or influenced by private attitudes and private conduct.  Libertarians elide this reality.   Yet, no one can deny that the market demand for automobiles is preconditioned by the state created network of highways and roads that make automobile travel both convenient and possible.   The private market and state action are not as neatly divisible as libertarians assert, and this is no less true in the race context, where state action and private attitudes and market behavior are deeply intertwined.

The Civil Rights Acts and the Reconstruction Amendments whose values they carry were targeted at racial discrimination in its entirety, both its expression in law, but also at the social norms and private customs that those laws embodied.   The Radical Republicans – not Rand Paul and his fellow tea partiers – but the Reconstruction era Republicans, sought not just to free slaves and make citizens of them, but to remake society and to purge our nation from the racial prejudice that was used to justify racial slavery and that survived its aftermath.   After all, if Chief Justice Taney denied black’s citizenship because of social relations and private attitudes, then reversing that decision, and granting full citizenship to blacks, not just as a legal technicality, but as a matter of social reality, required that those amendments reach into the sphere of private conduct.   The Civil Rights Acts of the 1960s were an attempt to see that promise fulfilled.

The Civil Rights Acts were targeted at racial discrimination broadly, both at the racist attitudes and private conduct that continues to negatively affect so many in our society, and at the legislation that embodied those racist attitudes.   What Rand Paul sees as government overreach and interference in private markets is nothing less than a moral imperative to ensure a fair and just society, to guarantee that no one is denied a job, a promotion or other opportunities to succeed in life because of their race, sex, religion, familial status, or disability.   Hiding behind the claim that the purpose of the Civil Rights Act was simply an attempt to redress institutionalized discrimination both misses the point and is entirely wrong.    If someone asks Rand Paul specifically about the Fair Housing Act, which targets private housing discrimination, he won’t be able to hide for very long.

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Stephen Menendian is the senior legal research associate at the Kirwan Institute for the Study of Race and Ethnicity at the Ohio State University.   Stephen directs and supervises the Institute’s legal advocacy, analysis and research, and manages many of the Institute’s most important projects.  His principal areas of advocacy and scholarship include education, civil rights and human rights, Constitutional law, the racialization of opportunity structures, talking about race, systems thinking and implicit bias.

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