On the Rand Paul-Civil Rights Act Controversy

David Bernstein comments on the recent Rand Paul-Civil Rights Act controversy at Cato Unbound, and Sheldon Richman responds.

In May, Kentucky U.S. Senate candidate Rand Paul (and son of Congressman Ron Paul) made remarks regarding the 1964 Civil Rights Act that were actually too mealy-mouthed for even me to understand, but, essentially he was trying to say that the federal government perhaps went too far with that Act, but he really wouldn’t elaborate directly (because of being a mealy-mouthed politician) by stating (what I think he probably believes, and that I believe) that the Civil Rights Act should only apply to public property and government-run facilities and services, and should NOT apply to private property nor any privately owned businesses. However, this year’s campaign notwithstanding, according to David Weigel of the Washington Post, in 2002 Rand Paul wrote that

a free society will abide unofficial, private discrimination, even when that means allowing hate-filled groups to exclude people based on the color of their skin … (It is) unwise to forget the distinction between public (taxpayer-financed) and private entities…

Certainly much less mealy-mouthed and more direct (because he wasn’t running for any public office at that time).

Bernstein explains some of the context of the 1960s:

… the issue that got Rand Paul into hot water: Title II of the 1964 Civil Rights Act, which prohibited discrimination in public accommodations…

… From a philosophical perspective, libertarianism and Jim Crow laws are completely at odds. Consistent with their classical liberal heritage, libertarians believe that the government must treat all its citizens as individuals with equal rights, and therefore may not discriminate on arbitrary grounds, like race.  The government must also apply its laws fairly and impartially, including by protecting members of unpopular minority groups from private violence.  A penumbra of this opposition to government discrimination is that the right to vote must not be denied for arbitrary reasons.  Finally, the government may not require private parties to discriminate.

Historically, many of the leading advocates of civil rights for African Americans in the late 19th and early 20th century—for example, Moorfield Storey, the first president of the NAACP—were, if not hardcore libertarians, at least classical liberal fellow travelers.  In more modern times, the few prominent libertarian commentators of the early 1960s, such as Ayn Rand and Milton Friedman, supported the provisions of the 1964 Civil Rights Act that banned discrimination by state and local government officials.   Conservatives, by contrast, typically bought into the notion of “States’ Rights.”…

…segregation and exclusion of African Americans in public places in the South wasn’t entirely a voluntary choice of business owners.  Jim Crow segregation involved the equivalent of a white supremacist cartel.  The cartel was enforced not just by overt government regulation like segregation laws, but also by the implicit threat of private violence and extra-legal harassment of anyone who challenged the racist status quo.  This violence and extra-legal harassment was often undertaken with the approval of local officials; the latter, in fact, were often the perpetrators….

And Bernstein continues to describe how libertarians can be supportive of anti-discrimination laws including covering private sector interests.

And Sheldon Richman makes these points, among others:

Standard libertarian criticism of Title II, which prohibits racial discrimination in public accommodations, appears to treat the targeted restaurants and hotels as purely private businesses that, however odious their racial policies, were unjustifiably imposed on by government policies that violated private property rights. But this account misses something crucial. Outwardly those businesses looked like private enterprises, but the substance was different. As Bernstein points out, the social-legal environment in the pre-1964 South, when Jim Crow reigned, was hardly what any libertarian would envision as a laissez-faire environment. Rather, the region was in the grip of a pervasive social system based on white supremacy—one enforced by formal government rules, discretionary official decision-making, and extralegal measures, ranging from social pressure all the way to violence that was countenanced and even participated in by government officials.

A racially liberal entrepreneur who sought to compete next door to a segregated restaurant in the downtown of a Southern city would have been in for a difficult time. How would the city’s zoning, licensing, and building-code authorities have reacted?…

…Professor Bernstein seems to reluctantly accept Title II only because a “massive federal takeover of local government to prevent violence and threats against, and extralegal harassment of, those who chose to integrate” would have been “completely impractical.” Undoubtedly so.

But why does that exhaust the options? Why assume government is the only salvation? That’s an odd position, indeed, for a libertarian. Professor Bernstein does not so much as mention another strategy for ending racial discrimination in public accommodations: direct nonviolent social action by the people affected and those in sympathy with them.

We can’t dismiss that as impractical because it had been working several years before Title II was enacted. Beginning in 1960 sit-ins and other Gandhi-style confrontations were desegregating department-store lunch counters throughout the South. No laws had to be passed or repealed. Social pressure—the public shaming of bigots—was working…

…Title II, in other words, was unnecessary. But worse, it was detrimental…

…The social campaign for equality that was desegregating the South was transmogrified when it was diverted to Washington. Focus then shifted from the grassroots to a patronizing white political elite in Washington that had scurried to the front of the march and claimed leadership…

…Libertarians need not shy away from the question, “Do you mean that whites should have been allowed to exclude blacks from their lunch counters?” Libertarians can answer proudly, “No. They should not have been allowed to do that. They should have been stopped—not by the State, which can’t be trusted, but by nonviolent social action on behalf of equality.”

So in other words, going beyond social pressure (and boycotts, etc.) to change business owners’ treatment of others based on race, and using the armed power of the federal government to force private businesses to change was the beginning of an ever-increasing mountain of laws and regulations and further anti-discrimination laws that have actually caused our society to go the other way, as far as actually causing regressive attitudes and intrusions. For example, anti-discrimination has become “affirmative action,” in which people who are not qualified for a job or for admissions to college nevertheless get hired or admitted (because of their race, etc.) over others who are more qualified (which in itself is discrimination, racial, ethnic or otherwise, and violates the 1964 Civil Rights Act!). And I’m sure there have been plenty of restaurant or hotel owners or managers who have felt compelled to allow someone on their premises that they might otherwise not have wanted to allow, not based on race or ethnicity, but based on the patrons’ behaviors, lack or sobriety or their appearance, but didn’t reject such patrons out of fear of accusations of discrimination or fear of lawsuits.

People who own a business, whether it be a “public accommodations” business or not, have a right to be free from the aggression and coercion of others. The law against theft and trespass really is absolute — or ought to be — and can’t be compromised for any reason including well-meaning social good or “social justice.” People have a right to their private property and that their voluntary associations and voluntary contracts not be violated by anyone.

The real civil rights are with the individual, who has a right to be free from the aggression or coercion of others, whether it be one’s own person or one’s private property, home or business. Unfortunately, that right to be free from the aggression of others has turned into, via “civil rights” the right (or more accurately, power) of people to force themselves into someone else’s private property. That’s trespassing. I know that I’m in the minority who believe that laws against theft and trespassing must be absolute. You can’t say that only some trespassing is forbidden in society, but other trespassing — forcing oneself onto someone else’s private property or into someone’s private business against his will, without consent — is acceptable. I don’t think so.

Jacob Hornberger pointed out regarding the Rand Paul-Civil rights Act controversy that the people on the left would say that private homeowners have a right to decide who can go into their private home based on any reason, but not private business owners, because of the left’s problem with free enterprise and profit.

The left also have a problem with the idea of someone having complete control over one’s own property, as well as one’s own business, even one’s own life as an individual. That is why most of the left are collectivists and not individualists.

The anti-discrimination laws and “civil rights” laws, like zoning and other State intrusions into private property, are of a fascist system. While socialism is public ownership of property and the means of production, fascism is State control over privately owned property and the means of production. Those systems which violate private property rights contrast with capitalism, which is private ownership and control over property and the means of production. Capitalism, free markets, voluntary exchange, whatever you want to call it, is the only system that protects liberty, the rights of the individual, the right to one’s own person and to one’s own justly acquired property, the right of freedom of association and freedom of contract, the right to be free from the aggression of your neighbors, from criminals, from all others, especially the right to be free from the aggression of the State. Fascism, communism, and socialism are all systems in which the aggressions and intrusions by others are institutionalized.

But in the end, private property is private property, and we need to get rid of all the intrusions that federal, state and local governments impose on individuals and private property owners. And that includes the fascist zoning laws, which, as Sheldon Richman made reference to, might have been used in the 1960s South by local government officials to threaten non-biased private businesses to force them to discriminate against Blacks. That would be where the private business owners’ right to bear arms comes in — to protect them and their Black customers from the violence of local officials.