Monday, June 14, 2010

More on Rand Paul


One might think we'd be done with Rand Paul and his support for discriminatory practices, but, sadly, he won't let it go. So I think it's worthwhile to look at the issues a little more closely.

First, a lot of the commentary from the Right has been to claim that in the current day and age, with discrimination a thing of the past, businesses wouldn't return to the use of discrimination even if the civil rights legislation we now have were repealed. They're overlooking, conveniently, perhaps, one crucial fact: discrimination never went away. We still have civil rights legislation, fair housing legislation, equal employment opportunity because we still need them. Take a look at the Justice Department's web page: they're still litigating claims in every area on behalf of the victims of discrimination. The laws didn't make the discrimination go away. What the law does is provide a remedy when discrimination does occur; it's not a magic wand that made discrimination disappear.

Second, Paul and his friends have argued that federal civil rights laws are unconstitutional because they are not among the powers enumerated to the federal government. What this overlooks is that the Supreme Court has held that the Thirteenth Amendment gives Congress the power to legislate to eliminate the badges and incidents of slavery, not just the legal form of slavery as it existed before the Civil War. ''Surely Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation. Nor can we say that the determination Congress has made is an irrational one. . . . Just as the Black Codes, enacted after the Civil War to restrict the free exercise of those rights, were substitutes for the slave system, so the exclusion of Negroes from white communities became a substitute for the Black Codes. And when racial discrimination herds men into ghettos and makes their ability to buy property turn on the color of their skin, then it too is a relic of slavery. . . . At the very least, the freedom that Congress is empowered to secure under the Thirteenth Amendment includes the freedom to buy whatever a white man can buy, the right to live wherever a white man can live. "

Denying the government the power to eradicate discrimination, the residue of the system of slavery carried forward into the Twentieth Century and beyond, is an endorsement of the continuation of the very practices devised to maintain the oppression of black people in the South and across the country.

Third, Paul and his supporters make a big deal of the distinction between private and public institutions. What they overlook is that every business in the country is imbued with state action. For instance, they would like to have the owners of every business permitted to exclude anyone they want, even based on race. If a black person were to somehow get into a whites-only establishment, who would enforce the prohibition? The police, right? If a white person wanted to prevent a black person from taking title to his property, where would that prohibition be memorialized? In the public, government-run, land records. If a customer of a whites-only establishment fell behind on his bills, how would that establishment collect its debts? By access to the government's court system. This is to say nothing of the public roads, public education system, police, and all the other aspects of government activities that make it possible for every business, large or small, to stay in business.

Finally, this latest kerfuffle seems to put to rest any thought that the Left and the Right could merge in some sort of grand coalition of liberaltarians. If you're not familiar with it, it’s a term meant to describe freedom-lovers who share common purpose with the left on social issues and have therefore made a couple of steps leftward, politically—perhaps even far enough to give hope and change a chance in the voting booth.

About those social issues: do you really think American liberals are going to line up with a movement that officially stands for the proposition that racial discrimination should be legal? Don't hold your breath.

Rand Paul claims he doesn't support racial discrimination, and that may be true. Still, it's hard not to be impressed with the patience and fortitude with which he endures the suffering of others.

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2 Comments:

Blogger Carson said...

"Finally, this latest kerfuffle seems to put to rest any thought that the Left and the Right could merge in some sort of grand coalition of liberaltarians."

Plenty of libertarians have come out against Paul's stance on the civil rights act:

http://www.newsweek.com/2010/05/21/why-rand-paul-is-right-and-wrong.html

http://www.aolnews.com/nation/article/rand-pauls-position-on-civil-rights-too-hot-even-for-liberatarian-stalwarts/19485872

http://www.cato-unbound.org/2010/06/16/david-bernstein/context-matters-a-better-libertarian-approach-to-antidiscrimination-law/

As a self-identifying "liberaltarian" myself, I don't think the short-term political potential of liberal-libertarian fusionism is all that great. But I think it remains a good idea overall, and the Rand Paul fiasco doesn't change that. Paleoconservative, Tea Partier, Rand Paul-type libertarians were never going to be a viable part of this project. It's much more aimed at citizens who have cosmopolitan liberal sensibilities along with a suspicion of command and control regulation. So to the extent that a liberaltarian coalition was ever a viable hope, I don't see this changing anything.

June 18, 2010 11:32 PM  
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