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Rand Paul is No Barry Goldwater on Civil Rights

20 May 2010
Posted by Bruce Bartlett

Rand Paul, son of legendary libertarian Congressman Ron Paul, for whom I worked in the 1970s, is now the official Republican nominee for the U.S. Senate from Kentucky. Perhaps unfortunately for him, he did not get a great deal of national press scrutiny during his primary campaign because he was an outsider that many in the national press corps thought could not win. Now that he has, they are making up for lost time. And Rand has accommodated them by repeatedly saying that he would not have voted for the Civil Rights Act of 1964 on libertarian grounds: private businesses should not be forced to serve African Americans if they so choose. Presumably, market pressure will eventually force them to be more accommodating. If it doesn't, then so be it, Rand believes.

Both Rand's supporters and critics point to Senator Barry Goldwater's principled opposition to the Civil Rights Act of 1964. However, according to Rick Perlstein's excellent book, Before the Storm: Barry Goldwater and the Unmaking of the American Consensus, Goldwater's opposition to the Civil Rights Act was based entirely on constitutional concerns. He had been told by both William Rehnquist, then a private attorney in Phoenix and later chief justice of the Supreme Court, and Robert Bork, then a professor of constitutional law at Yale, that it was unconstitutional. Bork even sent him a 75-page brief to that effect.

To be sure, the Rehnquist-Bork position was not a lame rationalization for racism. It was rooted in the fact that the Civil Rights Act of 1964 essentially replicated the Civil Rights Act of 1875, which was enacted by a Republican Congress over strenuous Democratic opposition. However, in 1883 the Supreme Court, then it its most libertarian phase, knocked down the 1875 act as well as many other Republican measures passed during Reconstruction designed to aid African Americans. The Court's philosophy in these cases led logically to Plessy v. Ferguson in 1896, which essentially gave constitutional protection to legal segregation enforced by state and local governments throughout the U.S.

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.

Sadly, it took the Supreme Court more than 50 years after Plessy before it began to undo its mistake in Brown. This led to repeated efforts by the Eisenhower administration to enact civil rights legislation, which was opposed and gutted by Senate Democrats led by Lyndon Johnson. But by 1964, it was clear to Johnson that the tide had turned. The federal courts were moving to dismantle segregation to the extent they could, and the 1963 March on Washington, the murder and beating of civil rights demonstrators in the South and growing awareness of such atrocities changed the political climate and made the Civil Rights Act of 1964 possible--despite the filibuster against it by Senator Robert C. Byrd, who still serves in the Senate today.

If Rand Paul were saying that he agrees with the Goldwater-Rehnquist-Bork view that the Civil Rights Act of 1964 was unconstitutional and that the Supreme Court was wrong to subsequently find it constitutional, that would be an eccentric but defensible position. If he were saying that the Civil Rights Act were no longer necessary because of the great strides we have made as a country in eradicating racism, that would also be defensible. But Rand's position is that it was wrong in principle in 1964. There is no other way of interpreting this except as an endorsement of all the things the Civil Rights Act was designed to prohibit, as favoring the status quo throughout the South that would have led to a continuation of segregation and discrimination against African Americans at least for many more years. Undoubtedly, changing mores would have broken down some of this over time, but there is no reason to believe that it would have been quick or that vestiges wouldn't still remain today. Indeed, vestiges remain despite the Civil Rights Act.

I don't believe Rand is a racist; I think he is a fool who is suffering from the foolish consistency syndrome that affects all libertarians. They believe that freedom consists of one thing and one thing only--freedom from governmental constraint. Therefore, it is illogical to them that any increase in government power could ever expand freedom. Yet it is clear that African Americans were far from free in 1964 and that the Civil Rights Act greatly expanded their freedom while diminishing that of racists. To defend the rights of racists to discriminate is reprehensible and especially so when it is done by a major party nominee for the U.S. Senate. I believe that Rand should admit that he was wrong as quickly as possible.

Addendum

The gist of the libertarian critique of this post, both here and on other blogs, seems to be that since segregation was enforced by the states it proves nothing about whether a libertarian society would lead to a decline in racism. Fine. But it doesn't address the original point of this post, which relates to the Civil Rights Act of 1964. Without it, what force was going to make the Southern states drop their racist laws? As I point out, we had an almost 100 year test of whether market/social forces were capable of changing the laws and customs in the Southern states and eliminate segregation. It didn't happen and there's no reason to think it was necessarily ever going to happen if the Southern states were left to their own devices. I believe that federal intervention was critical to eliminate the racist laws of the Southern states that restricted the freedom of African Americans. Restricting the freedom of racists to discriminate seems to be to be a very small price to pay and that on balance CRA greatly expanded aggregate freedom.

Links

Jacob Sullum of Reason magazine completely misunderstands me here. A. Serwer of The American Prospect  correctly responds here, saving me from having to do so. David Bernstein criticizes me here.

In short, the libertarian

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.

I'm sorry Bruce, but you've really gone off the rails this time. What part of any of that is libertarian? None of it. You are saying black people were lynched and discriminated against because white people were too libertarian? That's ludicrous.


Missed the point

I believe the general point is that most people do not behave as libertarian theory predicts, so that a libertarian approach to government can fail to produce liberty.
And the obverse: sometimes government intervention is necessary to protect the freedom of individuals.


The civil rights act of 1964

So I suppose General DYnamics and GE have no ulterior motive to make Rand look racist while they build the bombs that kill brown people in Iraq or some other forgotten place, afterall intervention to give those people civil rights and liberties has been able to justify bombing hospitals full of sick little children, some help that intervention has done for those freedoms of those kids.

Without the civil rights act we do not become as Ralph calls it "Public Citizens", we are thus private individuals, but what the left has done maybe plain to see. By advocating no rights for all they then claim it protects rights for some. In order to make people get along the LIberal argument seems to be a gun maybe needed to force them to like each other and live with each other, in other words the Civil War solved nothing about humanity. People apparently don't hardly get along with each other as the left often implies that it maybe needed to be a fascist society in order to protect liberty the same way the right claims in order to protect us from terrorists, same theory different strategy.

Since the media works on hyperbole and sensationalism we will not get the truth of how this game works but have everyone fighting agianst "racism" rather than "statism" exactly what they want, cause they have a right to be fascist cause it in the end as Albright said about the half a million dead Iraqi children in Iraq, "it was worth it". That says it all for me, the state at any cost including your life, and if you don't like it well you must be in the KKK, when really in reality if you want to kill foreign people all you have to do maybe join the army, the greatest murdering force in history, far more capable of destroying societies in order to save them from the latest boogeyman.

The notion that "racists" are more a threat to me than a freaking nuclear weapon seems a bit overblown and sorely overstated. We are far more down the rabbit hole than some Civil Rights Act would imply, we are far from a civil people, and people learn from the state, in a sense they teach us how to hate other states far better than any racist subgroup could ever dare to compete. So long as unlimited power remains then unlimited unconstrained vision will persist and so long as easy credit exists we will continue to lose sight of the facts.

The wizard of Oz didn't save us from racism and I think it maybe silly for the Deomocrats to imply it did such a thing, since they can easily allow someone from their home to have racist parties, so the democrats support racism in your private home, just not at your private business, becasue as they say it maybe more or less public. I think it maybe nothing more than an abuse of the word, private means nothing if it can be twisted and distorted into something else such as public.Since we pay taxes and use public infrastructe such as water ,etc why then maybe it OK for Nazi's to march on public streets but not OK for a private business to have the same rights not to serve whomever they want to not serve, I find it horrible to think people can be racists, but not cause for government to take away my right to asscoiate with whomever I choose.

I'm all for the day when the government stops bombing brown people and actually cares about everyone's rights, not as they currently do, ie managing our healthcare, and forcing us to like each other at the barrel of a gun or the underside of a bomb or making it out like nobody could have ended racism but for the Government, when it was mostly individuals that came together when the government failed to do so. I think the South will continue to be the punching bag strawman for liberals in the North for as long as a federal government exists, in their minds white southerners are of course racists no matter what they may say to the contrary, as if that doesn't overgeneralize and stereotype them in the same manner as a white racist does to blacks. If Rand were able to understand it he would be able to say it, I don't know much about him, he maybe not as well read politically as his father or just not a gutsy, but to me that means he has some growing to do to get as savvy as the cuttthroats in the media mafia have become.


Rand Paul is not saying that

Rand Paul is not saying that the government should not intervene to prevent lynchings. That's an obvious function of government, as with all murders. Furthermore, there is nothing libertarian about the state mandating segregation in public facilities or forcing discrimination in the private sphere. It is in fact the direct opposite of libertarianism. Whatever is public should treat all people equally, and certainly no libertarian would support the government forcing segregation in business. I mean the very word force is in there! Isn't that exactly what we rail against? Now I understand that businesses would not have integrated voluntarily with the removal of the law forcing them to segregate. 100 years of forced segregation and 200 years of slavery would have prevented that. So I'm willing to admit that in this instance, 300 years of the exact opposite of libertarianism might need to be remedied by the government. I still retain a philosophical objection to banning discrimination in private businesses, but occasionally one may need to depart from philosophy to remedy a situation that was so dire.


Misreading

Boy are you misreading Bruce. He isn't saying Libertarians made up the KKK or were lynching blacks - he was saying that the Libertarian philosophy that the government has no right to legislate against racism led to those things - and it did. This philosophy that the free market will sort everything out is and always has been a pipe dream, because people have to die before the "market" corrects.

Government mandates fire exits, smoke detectors, sprinkler systems and doors that open outward. All these things keep millions of people safe from death in fires. Would the market have provided for these things if they weren't legislated? Perhaps, but how many thousands of people would have had to die first?

Government mandates kitchens of resturants should be clean. Would the free market correct if a restaurant caused patrons to get e-coli and die? Of course it would - after the patrons got e-coli and died.

Government mandates that real estate agents can't discriminate against minorities in buying houses. In 2010 if we found out that a major realty firm was discriminating against blacks or hispanics would the market correct? Yes, would it have corrected in 1950, or 1960, or 1970? No - in fact Bill Russell who was then the star of the Boston Celtics bought a house in a middle class neighborhood outside Boston in the mid-60's and some neighbors broke into his house and deficated on his bed - that's the world we lived in.

I'm not a huge fan of regulations and government goes overboard many times. But tainted food, fire traps, institutional racism, lead paint, the list goes on and on of the things government "had" to regulate because the free market was only going to correct after unnecessary sickness and death. In many cases the govenment only regulated after unnecessary sickness and death and private industry still fought them tooth and nail.


Disagree

I disagree with you that under Libertarian rules that those institutions would have self corrected, even if it took a tragedy first. In the example of the restaurant with e-Coli: I believe they still would not enact safeguards, not if they thought it would cost more money than it would save. Or if they did enact the safeguards, it would only be for a short while.

Corporations and businesses, if left to their own devices, would destroy this planet, ever more comprehensively than they are now.


You realize that Jack In the

You realize that Jack In the Box lost A TON of business and had to change their cooking practices in order to regain customers. Other fast food restaurants followed suit. The reality is, if you are a business you are a slave to the consumer, unless the government grants you a monopoly.


I'm sorry Bruce, but you've

I'm sorry Bruce, but you've really gone off the rails this time. What part of any of that is libertarian? None of it. You are saying black people were lynched and discriminated against because white people were too libertarian? That's ludicrous.

Libertarianism ultimately leads to Hobbesian insanity when there is no power to stop what the majority wants to do. This is the fallacy of libertarian magical thinking premised on "enlightened self interest".


Hobbes? Really?

I assume by Hobbesian insanity you mean a situation where it is every individual against every other individual? Where is that ever found in the world? In history? History is full of people with similar interests banding together to make living and leisure easier. Libertarianism merely recognizes that everyone is voluntarily doing so - no external human group forcing them.

The power to stop the majority is as simple as deciding not to associate with them. Check your premises at the door.


no, not at all

He's not arguing that libertarianism DICTATED the violent, racist actions of the era -- he's arguing that the libertarian APPROACH to government, i.e., allowing people to essentially do what they wanted without government intervention, resulted in these things occurring, and that they didn't stop until the government got involved and eliminated the freedom to discriminate this way.

An absence of leadership may not cause something terrible all by itself, but it certainly can (and historically, did) result in an environment where these things are more likely to happen.


Agreed. A liberterian

Agreed. A liberterian position in the Ron/Rand Paul mode allows one group to oppress another. The whole point of RIGHTS is that they supercede the majority rule and RIGHTS must be enforced by a Government, even if it means altering the behavior of certain of its citizens.

I would also like to know Dr. Paul's position on gay marriage. I would hope that he would recognize the Government has no business forbidding marriage between consenting adults.


Gay marriage

I believe I remember Rand saying he recognizes that the Government has no business in marriage at all. Forgot where I heard him say that though.

Also, he and Ron have stated that they believe that you should be able to do what you want as long as it doesn't infringe on the rights of others.

The only thing that could make Rand inconsistent to my knowledge* would be if forcing a trade having only one willing participant was considered a right.

*(admittedly most of that is limited to the news of the past several days)


Bruce conflates Paul's

Bruce conflates Paul's position on the CRA's regulation of "public" accomodations (what he's against) and institutional discrimination in voting, schooling, etc. (what he's for). So its not fair to say Paul's opposition to parts of the CRA is discredited by the fact that "African Americans were far from free in 1964 and that the Civil Rights Act greatly expanded their freedom..." He approves of the CRA's expanding their freedom by restricting government discrimination. But, because of his "foolish consistency syndrome" (and 1st amendment freedom of speech and association) he is against government telling private businesses they cannot discriminate. That does not mean he condones private discrimination; he just disapproves of governmental coercion in private transactions. Maybe this position is wrong on policy grounds (as Bruce says, the market may not punish the racists), but on legal grounds, it is very defensible.


The Libertarian idea that the government should be impotent

dmitchell, I think Mr. Bartlett has hit the nail on the head. Like old-style Communists most Libertarians these days will dismiss as "not really Libertarian" any real-world cases cases where their "limited" government ideals are put into actual practice. (Somalia has about as limited a government as it possible, yet it's hardly touted as a Libertarian paradise).
The fact is, however, that the Supreme Court of the late 19th Century was closer to Libertarian than any other label current today. It definitely wasn't "statist." Indeed, Plessy v. Ferguson was a very Libertarian decision. In what ways was it NOT a LIbertarian decision?
Libertarians are largely members of the most privileged portions of U.S. society, white males. It is, frankly, a luxury they have to embrace that philosophy. When it's a philosophy that begins to make sense to people heretofore disadvantaged by society maybe it will be deserving of serious consideration.


Ah, those racistly Hayekian suth'n gentlemen

I zeroed in on the same passage as Dmitchell. Saying "The libertarian philosophy of Rand Paul gave us segregation, lynchings etc." makes about as much sense as saying the Electronic Freedom Foundation gave us the War of 1812. You can make a modest case that there was a kind of libertarian outlook at work in the late 19th century South, but only by ignoring the signs of oligarchy and control by the elites, of local government being run for the benefit of the company that owned everything, of racist demagoguery being used to thwart any other form of social change. In short, I could make at least as good a case for modern day uberliberal California resembling the old South in its minute governmental obsession with racial politics and spoils division as you could for the South having an excess of Friedmanite free market thinking and social laissez-faire attitudes. If anything, to the extent libertarianism has flourished in America, it's been in the parts of the country where black-white relations have been closest to nonexistent as an issue-- Wyoming, Idaho, Oregon; even Texas or Kansas are hardly Mississippi. Libertarianism is less on either side of race issues than on another planet from them.


Congratulations Quintus

Congratulations Quintus Arrius, you just provided us a better description of the natural and logical consequences of libertarianism than I have ever seen anywhere else.


Texas may not be Mississippi,

Texas may not be Mississippi, but racial relations there are hardly a non-issue. Go to east Texas (ever hear of Vidor?) and see if you can still make that assertion.


Ok, let's get pedantic

Much as it pains me to quarrel with someone naming himself for a great American novel, I must. Well, I guess at least I must say that we're looking at this glass half full or half empty, respectively. Texas is more libertarian than Mississippi; Texas is generally better in those other departments as well, as screwed up as you could undoubtedly paint it. Ergo, libertarianism has at minimum not made Texas worse than Mississippi, and may be part of why it's better. Again, the point is not that libertarianism has created perfection anywhere, but that Bartlett is claiming that the problems of the least libertarian part of the US are mainly due to one judicial fit of libertarianism (alleged) 140 years ago.

Damn good biscuits at Blue & White on Highway 61, though, I'll give Mississippi that.


Thank You

Mr. Bartlett,

Bravo.

Thank you.


That's not what Bruce is saying, dmitchell

Bruce is not saying that all those terrible things are libertarian ideals, dmitchell. He's saying that they were the inevitable outcome of a libertarian worldview that elevated racial hatred and exclusion to the status of a protected liberty interest. Dr. Paul would like to revive that worldview, but has managed to persuade himself that this time around the magic of the free market will somehow prevent what it has consistently failed to prevent in the past. Ideas have consequences.


History

I am making a simple historical argument that cannot be denied. A number of laws were passed during Reconstruction to protect the former slaves from those who enslaved them and wanted nothing more than to return them to their former condition. The Supreme Court, then operating under a libertarian philosophy, found almost all these laws to be unconstitutional. The result was that once African Americans lost federal protection their condition became worse by every measure one can think of. Discrimination increased dramatically, rather than falling as libertarian theory predicted. This is undeniable fact. It's also undeniable that the condition of African Americans did not improve significantly until passage of the Civil Rights Act of 1964. Now, perhaps it is just a coincidence; maybe African Americans would be just as well off today if, as Rand Paul would like, the Civil Rights Act of 1964 were never enacted. I can't prove that, but I don't believe it. Nor do I think the Civil Rights Act imposed any real burden on anyone except racists. I think those who argue against the Civil Rights Act on libertarian grounds are fools and idiots.


Real burdens

"The Supreme Court, then operating under a libertarian philosophy (sic), found almost all these laws to be unconstitutional"

Instead of condemning the Supreme Court for following the Constitution you should condemn the Constitution itself.

"This is undeniable fact. It's also undeniable that the condition of African Americans did not improve significantly until passage of the Civil Rights Act of 1964"

Thomas Sowell denies it. He has claimed, for example, "More blacks rose into professional ranks in the five years preceding passage of the Civil Rights Act of 1964 than in the five years after its passage."

"Nor do I think the Civil Rights Act imposed any real burden on anyone except racists."

Forced busing, disparate impact lawsuits, and racial mandates in hiring, bank lending, and college admissions burdened and continue to burden non-racists.


Jim Crow Laws

From 1876 to 1965, there were thousands of Jim Crow laws that MANDATED by law de jure racial segregation. While I'm sure the reasonable Democrats and Republicans of the time were debating the merits of these laws and coming to compromises on how far they'd go in oppressing black people for practical reasons, I can guarantee you that every single Libertarian would have opposed them on principle.

What everyone seems to be missing was that the discrimination that happened in the past was perfectly legal. Not because there weren't laws that said private businesses couldn't discriminate, but because the laws said that they MUST discriminate!

Again, Jim Crow laws were...wait for it...LAWS. That means they were passed by governments with full backing of police force.

Blaming any of the racial discrimination laws on libertarianism is just plain ignorant. Or worse, dishonest.


Thank you! Well put. Jim

Thank you! Well put. Jim Crow laws were LAWS and therefore had to be overturned. Laws don't just disappear from the books because they go out of style; they have to be repealed (or overturned) the same way they were passed. Blaming libertarian philosophy-- which places liberty over all else-- for the persistence of Jim Crow laws-- which were anti-liberty mandates-- makes zero sense from any angle.


Bruce -- There are several

Bruce --

There are several problems with your argument. The first is that the idea that the Supreme Court was particularly "libertarian" or solicitous of economic liberty at the time the Civil Rights Cases were decided is ludicrous. This is the era from which the Slaughterhouse cases came.

Second, there was nothing "libertarian" about Plessy v. Ferguson, and the law in question in that case was not supported by the private sector. To the contrary, the railroads collaborated with Homer Plessy to have his challenge brought because they opposed the separate but equal requirement.

Third, once the Supreme Court started to become more "libertarian," and began protecting economic liberty more aggressively, it invalidated some racist laws (see, e.g. Buchanan v. Warley). Indeed, as David Bernstein showed in his book, Only One Place of Redress, the Supreme Court's earlier reluctance to protect economic liberty facilitated Jim Crow.

As for the Civil Rights Act of 1964, one can believe that the law was, on net, an advance for liberty without believing that the prohibitions on private discrimination were worth enacting, or even responsible for the subsequent gains made by African Americans. The 1964 Act did much more than prohibit private discrimination in public accommodations and employment. It struck down state enforced segregation, authorized the Justice Department to enforce the 14th Amendment against state and local governments, and used the power of the purse to force school districts and other entities to cooperate more fully with desegregation efforts. We don't know whether enacting these provisions, by themselves, would have produced similar gains for African Americans -- though we do know it would not have raised the same constitutional concerns. And there is certainly an argument that the federal government should have tried eradicating state sanctioned discrimination before going after private actors.

I'm not suggesting Rand Paul's views are this nuanced, but those of many libertarians are.

JHA

JHA


SCOTUS

It doesn't matter whether the court was motivated by libertarian theory or something else. The fact is that it struck down almost all of the Reconstruction era laws to protect and aid African Americans. (The rest were repealed when Democrats got control of the Congress and the White House for the first time after the war in 1893.) The 1875 law in particular was virtually identical to the Civil Rights Act of 1964. Thus the federal government intervened heavily to enforce the rights of African Americans for about 20 years after the war, during which time their condition improved greatly, and then it stopped. Libertarian theory says that market forces should have forced private businesses to accommodate African Americans. Clearly, they did not, at least in the South. And while state governments enforced a lot of discrimination, the vast bulk of discrimination resulted from the actions of private individuals and businesses that was enforced by intense social pressure. And this went on for almost 100 years. What evidence is there other than wishful thinking to show that discrimination would have been reduced to its present small but not nonexistent level absent federal intervention in the form of the Civil Rights Act, Voting Rights Act and other such laws? I don't see any. As we know, the sort of racial discrimination that was commonplace in the pre-1964 South lasted until the 1990s in South Africa and only ended because of external pressure.

I think it would be a good idea to have a debate about the future of the civil rights laws. Many have outlived their usefulness. For example, the Voting Rights Act essentially mandates congressional districts that are overwhelmingly populated with minorities. I think this has perverse effects and ought to be reexamined. But the historical argument that Rand Paul makes that we should never have passed the Civil Rights Act in 1964 is seriously wrong-headed and deserving of intense criticism.


"the sort of racial

"the sort of racial discrimination that was commonplace in the pre-1964 South lasted until the 1990s in South Africa and only ended because of external pressure"

How are South Africans doing these days? You might want to look into it. External pressure was also brought to bear against Rhodesia. For some reason that victory for racial equality rarely gets mentioned.


How are South Africans doing

How are South Africans doing today? A hell of a lot better than when they were still under the heel of Apartheid! Or were you only thinking about whether white South Africans have as much money as they used to?


Still Misrepresenting History

Bruce --

First, you're the one who said the Supreme Court of 1883 was in its "most libertarian phase" and that "the Court's philosophy in these cases led logically to Plessy v. Ferguson in 1896, which essentially gave constitutional protection to legal segregation enforced by state and local governments throughout the U.S." This is false on multiple levels. There was nothing libertarian about Plessy, and the 1883 Court was not particularly libertarian. This was the Slaughterhouse court, not the Lochner court.

Second, the 1875 Civil Rights Act was definitely not "virtually identical to the Civil Rights Act of 1964." The 1875 law was similar to Title II of the 1964 Act, but less expansive. The 1875 law only prohibited discrimination in "public accommodations" -- defined to cover inns (but not all hotels or rooming houses), public conveyances, theaters, and places of public amusement -- it did not cover all businesses engaged in interstate commerce (as did the 1964 law). The 1875 law also did not cover employment. Nor did it prohibit state discrimination or state-enforced segregation, nor did it authorize federal action to combat school segregation, nor did it deny federal funding to discriminatory institutions. In other words, even those who thought the 1883 Civil Rights cases were correctly decided could have found much to support in the 1964 act.

As for evidence of what would have happened without state sanctioned and enforced discrimination -- we have relatively little, as there were few labor and other markets in the south that were not heavily affected by state mandated discrimination -- such as requirements for separate facilities for black and white employees in the textile industry -- and private pressure was reinforced by state action. One reason social sanctions were so powerful was because they were so often backed by the power of the state, including police forces who would look the other way at private violence against blacks and those who didn't toe the racist line.

We also know that throughout the 20th century, governments used all manner of regulatory power, including facially neutral regulations, to oppress blacks and disrupt the natural functioning of markets. And we also know that a Supreme Court that had taken libertarian principles more seriously would have struck many of these laws down. Again, David Bernstein's work in this area is quite instructive.

Again, my point is not to defend Rand Paul, and my claim is not that we didn't need the 1964 Act. But if one is going to engage in "intense criticism," it's important to get one's facts right.

JHA


Law

I bow to your superior knowledge of the law. However, you haven't really said anything to contradict my basic conclusion. The part of the 1875 law that is most like the 1964 law is precisely the part that Rand Paul objects to. And while it may or may not be true that segregation in the South would not have survived without state support, it is a fact that much discrimination was state sanctioned and enforced. I still do not know what the libertarian response to this is. If not the federal government then what else was going to force the states to change their laws? As a matter of historical fact it was only when the Supreme Court in Brown and the Congress in the Civil Rights Act of 1964 forced the South to abandon segregation that it did. The only possible alternative explanation would be to argue that it was entirely coincidental that segregation ended simultaneously with federal demands that schools be integrated, blacks be allowed to vote and so on. That's absurdly implausible. The only other possible avenue for a libertarian to argue is that somehow or other it was inevitable that segregation would come to an end because of market forces, changing societal mores or whatever. If blacks had to suffer a few more years of discrimination until that golden day arrived, that was the price that had to be paid for protecting the property rights of racists who would not serve or sell to black people solely because of their race. I think such a view is cruel and indefensible.


Bruce -- Actually the

Bruce --

Actually the argument is rather simple: Federal action to end state sponsored and supported discrimination would have sufficiently freed up market forces to do the rest. Without state laws mandating discrimination and separate facilities, segregated schools, racially discriminatory voting registration, etc. -- and without facially neutral economic regulations that disempowered blacks (such as anti-recruiting laws in the south, Davis-Bacon, etc.), private discrimination would have diminished rapidly.

That's the argument. Is it correct? I don't know, but it's plausible, and it's perfectly libertarian. The libertarian objection is to federal intervention to punish private decisions, not federal intervention to stop state-sponsored discrimination. Does Rand Paul object to both? I don't know. Some conservatives did and still do. I do not, nor do many other libertarians. This is, for instance, a distinction Richard Epstein draws in Forbidden Grounds.

Again, I think the 1964 Act, as a whole, was a good deal. What i object to is the suggestion that opposition to federal intervention into private economic decisions is tantamount to endorsing or tolerating Jim Crow.

JHA


The overwhelming majority of

The overwhelming majority of economic activity in the USA is in private hands (despite what some may think).

Allowing a private citizent to have 'no blacks' on the door of his house party is one thing. Allowing an employer or retailer to have 'no blacks' on the door is to deny an entire group the chance to participate in America's collective wealth.

Dr. Paul failed to distinguish in his logic between a TRULY private citizen (that is, doing private things) and a private citizen doing PUBLIC things (hiring, selling, etc.)


Jonathan Adler repeats an

Jonathan Adler repeats an argument that has received quite a bit of play by conservative bloggers since Rand Paul's statement: that "federal action to end state sponsored and supported discrimination would have sufficiently freed up market forces to do the rest. Without state laws mandating discrimination and separate facilities, segregated schools, racially discriminatory voting registration, etc. -- and without facially neutral economic regulations that disempowered blacks (such as anti-recruiting laws in the south, Davis-Bacon, etc.), private discrimination would have diminished rapidly."

This argument, which Adler calls "plausible," rests on a misunderstanding about the state of the law in 1964. By the time the Civil Rights Act was passed, the Supreme Court had long since made clear that state-mandated racial discrimination did violate the Fourteenth Amendment. Even before Brown in 1954, the Court had held that the state couldn't enforce private discriminatory covenants (Shelley v Kraemer, 1948), and that nominally "separate but equal" facilities were unconstitutional because they weren't really equal (Sweatt v Painter, 1950). And, as Adler surely knows, Brown made it crystal clear that the state couldn't "mandate discrimination and separate facilities."

So the libertarian market had a chance to work. And guess what? White-only restaurants, gas stations, hotels, etc. continued to exist. Racial discrimination didn't melt away under the influence of free markets, perhaps because racism isn't arrived at through rational cost-benefit analysis. The same white voters who had supported Jim Crow laws continued to engage in Jim Crow behavior. And they would have continued to do so without the Civil Rights Act.


States

It sounds to me as if Jonathan would have supported some sweeping federal law that would have negated all state laws mandating segregation. If so, that's a pretty profound attack on the idea of federalism. 


Too many posters are letting

Too many posters are letting their cognitive bias' cloud their judgment by focusing on "The libertarian philosophy of Rand Paul gave us segregation, lynchings etc." and overlooking the simple fact that "Any store owner in the South who chose to serve blacks would certainly have lost far more business among whites than he gained" and "because it was enforced by law but because it was mandated by self-reinforcing societal pressure". The market didn't just breakdown. It was never functioning properly, and never could.

Thanks for another well thought out article. The positive I see to Rand Paul getting elected is the true colors of the libertarians and the Tea Party will be on display, and we can see just how serious this 'movement' really is.


Quintus -- I would posit that

Quintus -- I would posit that reason why "black-white relations have been closest to nonexistent" in Wyoming, Idaho, and Oregon would be the complete lack of any sizable non-white population in any of these areas (save Portland). Your argument is ridiculous.


Uh, yeah, that was the point.

Libertarianism and racial problems are largely separate. The libertarian parts of the country were not made to be so by some underlying racial issue (and the least libertarian parts of the country are probably so in part because of racial issues).

That was pretty much my point, that Bruce's linking of the two is pretty ridiculous-- that he focuses on one small episode in the lengthy history of racial discrimination, declares some (partly cynical) legal reasoning to be libertarian (vaguely true), and thus all of Jim Crow to be the natural and inevitable result of an overwhelmingly libertarian society. Which it is simply madness to view the 19th century, rigidly stratified, aristocrat-dominated South as being.


Reality

Thank you Bruce. Unfortunately, this entire discussion reveals the limits of any pure ideology/philosophy -- that ideology's confrontation with the real world.

Soviet-style Communism didnt work in practice because it did not take into account the reality that personal gain is a basic human motivation. Libertarianism can't (and won't) work in practice because it fails to take into account the basic need for operational fairness and equality in a modern civil society. That is where Paul and his ideological colleagues lose touch with reality. Racial/sexual/gender discrimination is fundamentally irrational and cannot be fixed by a "rational" marketplace -- government is the mechanism that must be used to addresse such issues.

Of course, this is all besides the point. No one seems to ever acknowledge that the United States Constitution clearly is not a libertarian document. The overarching philosophy of the document, outlined in its Preamble, makes clear that the government has a role beyond just defense and roads -- establishing justice, ensuring domestic tranquility, promoting the general welfare, and securing the blessings of liberty. How is it possible that the founders wanted such a broad mandate while at the same time neutering the very institution that was intended to bring that to pass? If not, how does one account for the "necessary and proper clause" or the "general welfare" clause? The answer is that they didn't -- and that is why libertarianism (including the libertarianism expressed by Mr. Paul with respect to the Civil Rights Act) cannot peacefully coexist in a world of irrational reality or in an America with the Constitution as its governing document.


Segregation was enforced

Thank you, Mr. Bartlett.

Thank you for recognizing a critical point:

"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."

That societal pressure destroyed much, even in the North. It barred millions from education and productive enterprise, and prevented white folks (like me) from associating freely.

And it was enforced viciously. After all, being a "n-word" was no crime, as long as you kept your place. But being a "n-word-lover" got you instantly ostracized, ridiculed, or worse. Much worse.


Note to Democrats:

This incident has just given you the playbook for how to win big in November (or at least sustain very minor losses).

The GOP primary voters and their candidates have been living in an echo chamber of Rush Limbaugh and Glenn Beck. In their world, Rand Paul's position on Civil Rights is perfectly acceptable. I'm fairly certain that 70% of Americans don't agree.

Find the wedge issues that reveal these people to be batshit crazy and exploit them.


Libertarianism

Unless they are anarchists, ALL libertarians accept that government increases freedom up to a point. It is necessary, they concede, to protect property rights, enforce contracts, protect us from foreign enemies and from bodily harm. Yet when they argue against things like the Civil Rights Act they implicitly assume that anarchy is the only state of nature that is consistent with freedom. This is, of course, a contradiction. The issue is not whether government should exist to enforce rights, it's about defining those rights and about finding the line between government's ability to increase freedom by preventing murder, theft and so on, and the point at which government becomes totalitarian and reduces freedom and well-being. The Civil Rights Act did, of course, restrict the freedom of racists to discriminate. But it also expanded the freedom of African Americans to live their lives free of coercion, much of it enforced by state and local governments. This points to another libertarian myopia: the tendency to criticize ONLY federal limitations on freedom and give a pass to state and local governments. Indeed, many libertarians of the states' rights variety--the sort who think the Civil War was a war of northern aggression and that the war had nothing to do with slavery--often champion state government power as a check on federal power. So how do they then refuse to see that federal power may also restrict state power so as to increase freedom? Basically, I think libertarianism as exists in practice is a jumble of inconsistent and incoherent views shaped largely by peoples' views of what is good for them personally and to hell with everyone else.


"Basically, I think

"Basically, I think libertarianism as exists in practice is a jumble of inconsistent and incoherent views shaped largely by peoples' views of what is good for them personally and to hell with everyone else."

Bingo.


You support the use of force to solve social problems

I just want to point out that you are philosophically supporting violence as a solution to social problems in this article. Just want to make sure you all understand that before you continue to prop up violence as a solution to racism.

Not that Rand Paul is the solution of course, he's just another symptom of the bigger problem. Please stop supporting false concepts unless you want the blood of another generation on your hands.


I am making a simple historical argument that cannot be denied.

Silly Bruce Bartlett, anything can be denied if you put your blinders on. I was on a blog thread where a gentleman denied the simple point that both Democrats drew more primary votes than Dr. Paul. It's a simple mathematical fact, easily verified, but no, this guy had worked at the polls, so he didn't need a simple statistical fact to know that there weren't more Democratic votes.


Bruce says the

Bruce says the following,

"It's also undeniable that the condition of African Americans did not improve significantly until passage of the Civil Rights Act of 1964."

This is patently false. How exactly does he explain that the black poverty rate dropped in half from 1945 to 1965, long before the Civil Rights Act. Or, of the income gains that blacks made from migrating to the northern factories during and after WWI. Blacks made enormous gains before the civil rights act.

I'm a libertarian and I agree with Paul. The feds should and can step into states when they create law discriminating against blacks, which was the source of black poverty in the south. Goldwater himself proposed legislation in 1957 and 1960 for the feds to block discriminatory laws.

When you say, "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."

This is one of those things that sounds nice in theory, but in practice, thats now have the free competitive market works. Someone who hires very cheap black labor, would offer white customers very cheap products, which they would gladly take. They're rather have the money and than discrmination if offered such. Read Walter William's "State against the blacks," where he details quite carefully how even in the SOUTH, that in practice, in free competitive markets even in the south where blacks were hired, they had great success. He details how in practice your theory just doesn't work. Anti is laws that always prevented black success. In the south it was jim crow, in the north it was unions.

The fact is, you've got your economics off. Economically speaking, blacks in the south (and north thanks to unions) did not do as well as they would have thanks to jim crow laws that prevented blacks from competing with whites. Blacks, who could have commanded lower wages than whites in the south, would have made enormous gains. One of the reasons jim crow was created in the first place was because white elites saw how even white racists were hiring cheap black labor.

Libertarian theory is quite correct on this one. If jim crow laws had never existed, even in the face of cultural discrimination, blacks would have made enormous gains due to out competing white labor. Read Thomas Sowell and Walter Williams. They show how its quite clear, that in a competitive market desire for profit overcomes racism. Blacks were not poorer because of discrimination per say, but because of laws that prevented them from having economic freedoms. How do you explain jews, asians, free blacks and their economic success in history?

Racism and bigotry are the greatest evils known to man, but liberty means that the government cannot legislate morals.


. . . really? That's your

. . . really? That's your argument? Everything would have worked out in the free market because black labor would be "very cheap" compared to white labor? That's not a problem for you?

And that's leaving aside that you've deliberately avoided Bruce's point by switching from receiving services to producing goods, where there was a much weaker societal taboo. No one really cared if their cotton was picked by a white or black man, but it was culture that demanded that blacks never get out of the kitchen while whites could wait tables, and that blacks pick up their food at the back while whites ate inside. That wasn't the law, that was culture.


Perfect Example of Libertarian Blindness & Naivete

As a southerner of a certain age, I can tell you that your comments are completely divorced from reality. My father owned and operated a small business (20-25 blue-collar and clerical employees) in a relatively cosmopolitan small town in North Carolina from 1956 to 1970. He was from New York State, a BA from the U of Michigan, and his views on race relations ran pretty much along the libertarian line that you are preaching. But among his 20+ employees, he never hired a single black person for any job higher than janitor. Why not? Several reasons, but it's certain that if he had hired even a single black person for a skilled position most of his other employees would have revolted. They would have strongly objected to sharing bathrooms, lunch rooms, or truck cabs with black people.

Because of free labor market forces (which must take the racial preferences of workers into consideration), to retain his highly skilled but racist blue-collar employees (who were really nice people, BTW) my father COULD NOT hire black people. It didn't really matter whether or not the black people were willing to work for low wages.

Let me add that my father's business, a private telephone company, was a regulated monopoly and (unlike a restaurant, say) he would have had roughly the same customer base even if he had employed lots of black workers.

So the problem is that market forces reflect people's preferences, and sometimes free people have odious preferences that lead to odious emergent behavior of the market. Paul's (and your) libertarian line on the Civil Rights Act is dangerous nonsense.


Long time reader, first time commenter

I disagree with a lot of your views Mr. Bartlett, but thank you for eloquently exposing the blind ideology and lack of real world experience that drives politicians like Paul.
If there is one point moderate conservatives and us lefties can agree on, it's that the negative views of the Civil Rights Act on the far right is counterproductive and dangerous to personal liberty (a former boss of yours comes to mind).
In the ever changing cultural and racial makeup of our country, it probably won't win many votes either.




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