Rand Paul’s apparent opposition to a key provision of the Civil Rights Act places him well within the mainstream of libertarian thought, according to several leading libertarians.
The GOP Senate candidate told MSNBC’s Rachel Maddow last night that he would have tried to “modify” the law’s ban on racial discrimination by private businesses. That was an expansion of comments he made last month to a Louisville newspaper, in which he said that opposing the ban was “the hard part about believing in freedom.”
Paul’s stance is “very reasonable, and quite close to the Libertarian position,” a spokesman for the Libertarian Party told TPMmuckraker.
“If some private business discriminates we think that’s unfortunate, but we don’t think the government should get involved in banning it,” said the spokesman, Wes Benedict. “That’s just a negative that we have to tolerate in a free society.”
Walter Block, a libertarian professor of economics at Loyola University, and a senior fellow with the libertarian Ludwig Von Mises Institute, went further. “I think anyone who doesn’t believe that isn’t a libertarian,” he said, calling Paul’s comment “a very mainstream libertarianism.”
“I’m delighted that Rand Paul said that,” an enthusiastic Block added. “I think it’s magnificent. I didn’t realize that he was that good.”
“The spirit of non-discrimination,” said Block “ends you right up in compulsory bisexuality.”
Harry Browne, the late libertarian activist and presidential candidate, appears to have taken the same view. “Neither before nor after the Civil Rights Act were people free to make their own decisions about whom they would associate with,” he wrote in 2003. “The civil rights movement wasn’t opposed to using government to coerce people. It merely wanted the government to aim its force in a new direction. Although the activists believed coercion served the noble objective of bringing the races closer together, it was coercion nonetheless.”
David Bernstein, a libertarian law professor at George Mason University and the author of the 2003 book You Can’t Say That! The Growing Threat To Civil Liberties From Anti-Discrimination Laws, confirmed that opposition to the ban on racial discrimination by private businesses was a mainstream position in libertarian circles both at the time of the Civil Rights Act and today. “The foundation of libertarian thinking is private property as a limit on state action,” he said. “So if a private business chooses to discriminate, a typical libertarian would say that’s a business owner’s right to do so.”
Bernstein cited a 1963 article in The New Republic written by Robert Bork — at the time a libertarian Yale Law professor. In reference to the Interstate Accommodations Act, an earlier piece of civil rights legislation, Bork wrote:
The principle of such legislation is that if I find your behavior ugly by my standards, moral or aesthetic, and if you prove stubborn about adopting my view of the situation, I am justified in having the state coerce you into more righteous paths. That is itself a principle of unsurpassed ugliness.
Indeed, Bernstein said there were prominent liberals who took the same view — a view that was not seen as incompatible with their liberalism. His book mentions a 1945 letter to the editor of the New York Times, which denounced fair employment laws as unjust intrusions on freedom. The letter was signed by Oswald Garrison Villard, the owner of The Nation, as well as other liberals. Bernstein’s book also notes that Hannah Arendt objected to fair housing laws on same grounds, writing that “discrimination is as indispensable a social right as equality is a political right.” (As we reported this afternoon, Paul has expressed his own opposition to the Fair Housing Act in similar terms.)
It’s not as simple as this though. Bernstein himself said he doesn’t see things quite the same way as fellow libertarians like Block and Browne do. In a 2004 op-ed — subsequently posted on the Cato Institute website — he argued that “the civil-rights laws of the 1960s were generally sensitive to civil libertarian concerns,” since they “prohibited discrimination only in public facilities such as restaurants, hotels and theaters.” He warned that newer laws go too far by prohibiting discrimination “in the membership policies of private organizations … like the Boy Scouts of America.”
Richard Epstein, perhaps the country’s leading scholar of libertarian legal thought, told TPMmuckraker in a brief interview before boarding a plane that he believes anti-discrimination laws can be justified only as a counter-weight to monopoly power — but suggested that such monopoly power did exist in the Jim Crow south, when almost no retail businesses would serve blacks.
And in section of a 2009 book published by the Cato Institute, John Samples, a scholar at Cato attempted to reconcile libertarian thought with the Civil Rights Act. He wrote (pdf):
Johnson’s major civil rights achievements —the Voting Rights Act
of 1965 and the Civil Rights Act of 1964—are in part compatible with the limited government philosophy. Both could be seen as constraints on governments, especially in the South….The [Civil Rights Act] forced some to engage in exchanges they wished to avoid. On the other hand, the law opened the possibility for an individual to stay at a motel or eat at a lunch counter. That possibility conveyed a power (not a liberty) to African Americans, and it did so by increasing the ambit of the state. The Civil Rights Act appeared constrained in aspiration. [Unlike later laws] It did not require that 12 percent of customers at the restaurant in a month be African-American. Indeed the Civil Rights Act prohibited the use of racial quotas.
In other words, it’s possible to be a libertarian without opposing the Civil Rights Act’s ban on discrimination by private businesses — a stance Paul now may be belatedly trying to feel his way towards. But at the same time, opposition to the ban is the mainstream position in libertarian circles. The controversy about Paul’s comments, then, is as much about libertarianism itself as about the GOP’s new nominee for the U.S. Senate from Kentucky.