Rand Paul and the Civil Rights Act of 1964

Rand Paul just won the Republican nomination for the U.S. Senate in Kentucky. He’s the son of Texas Congressman Ron Paul. Both are libertarians. Other than being Ron Paul’s son and a libertarian I don’t know much about Rand Paul, although I heard him recently trying to sum up the Tea Party movement and thought that he was considerably off target. I can’t recall, though, exactly what he was saying that made me think that.

After he won the Senate nomination last week he was immediately thrown into a controversy about something he had said about the Civil Rights Act of ’64. The gist of it is that while Rand Paul was clear that he abhorred racism and segregation and believed that the legal segregation of state government institutions needed to be ended (back in those days “states rights” meant that the states were entitled to their official policies of segregation and it was none of the federal government’s business) that he was uneasy with the idea that the feds would also order private businesses how and with whom to conduct their affairs.

In theory, Rand Paul has a point, but there is something more here than theory, and there are also principles in conflict.

I’ve often written that I believed that the most disappointing element of American history was Jim Crow, which was the creation through law of a segregated society, largely in the American South. Slavery was an ancient institution that the South clung to until the Civil War ended it. It was a beastly practice ended by a beastly war, and that should have been the starting point of something better for both blacks and whites in the South.

Instead, Jim Crow was instituted. It was a system of legal segregation based, one supposes, in nothing but racism. I can’t pretend to read hearts and minds from the 19th Century, but this was something that I believe dishonored the dead from both sides of the Civil War. It was a deeply tragic development because it really was at odds with the founding ideals of America and a profound betrayal of the opportunity provided by the War and the people who had given their lives fighting in it.

So, Rand Paul’s notion that private businesses should not be told how and with whom to do business has to sit in the context of a culture that was created in large part by politics acting through government.

This is something that is very powerful in America: the cultural power of politics working through government. In some of its elements, going back to the American Revolution and its fundamental principles, this cultural power of politics shaped the American character, which in turn shaped the government. It’s a hard thing to untangle. Perhaps Tocqueville did it best in his Democracy in America, but it’s clear to me that Jim Crow was not America at its best. My larger point is that the politics took the sourest notes of the post-War South and then drove the culture into segregation and left it there.

So the point of contention here is not whether the state government practices needed to be desegregated — they did and it should have happened decades earlier — but whether the culture that was driven by the politics through the state governments had to be addressed as well. The Civil Rights Act of ’64 essentially said to businesses that if you serve the public then you must serve all of the public. Everybody’s money is green. You can no longer refuse to take it from blacks.

The Act took aim at the culture, which the state governments own segregationist practices had helped form, reinforce, and keep in place.

Was it wrong to force private businesses to behave in a certain way and call it a means of enforcing Constitutional rights? Well, it’s not that easy a call. On one hand the CRA makes a business open to the public open to all the public. It does this to end a segregated culture that government itself essentially created and reinforced. On the other hand it tells private businesses how and with whom they must do business, taking away the right to freedom of association.

The CRA gives a new opening to people who were excluded, but it also takes a lot back for government power, and government is always a harsh mistress, even when it acts for the good. Where government is mindful at first, it routinely slips later into mindlessness. And there are people who specialize in working the government boot during that mindlessness. That always happens.

So, the question is has America grown up enough on the race question to now see the CRA of ’64 as a government (federal) remediation of a cultural curse created and reinforced by government (state) itself?

And if it can be seen as a successful remediation, is it now time to get out of the adolescent phase and let people act on their private interests without further government interference?

In ending the culture of segregation, has government created a new culture of grievance? I would argue that it has and that the new culture is as deleterious in its way as the old one.

There’s no doubt that some businesses might try to resegregate and serve only whites or only blacks. But does anyone believe that most businesses would do that? That any more than a small percentage would devolve back to that state? I have a feeling that it wouldn’t go that way principally on the basis of the opprobrium that would result and the way that it would damage a business’s reputation and therefore its revenue. In general, what I’m saying is that practicing racism would be bad for business, and that the social pressure would be that it’s not acceptable.

Another argument might be that if having or not having the law enforcing this status quo makes no difference, why not just leave the law in place? That’s where the culture of grievance comes in, and the idea that the government is an instrument through which to practice a variety of extortion.

I don’t think that anything is going to change for perhaps another generation, but Rand Paul was not being frivolous by raising this issue about freedom. If the government’s remediation of a government created culture of bias has been successful, and it largely has, then the situation is far enough along to raise the question of whether enough has become too much.

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