The Corner

Unfair to Paul

Several readers suggest I’m being unfair to Rand Paul. I’m certainly open to  the possibility. This reader makes a strong case:

Jonah — I think your column is a bit unfair to Paul’s position, if only unintentionally.  You write:


Paul weeps for the lost right of white businessmen to refuse black customers (even though he rejects the practice himself). But he fails to appreciate the perverse irony that one of Jim Crow’s greatest evils was its intrusion on the property rights of whites. Jim Crow wasn’t merely some “Southern tradition” undone by heroic good government. Jim Crow laws were imposed by government.


To the extent that Jim Crow laws mandated private discrimination (in addition to “pure” public discrimination), I believe that Paul made his view clear that that federal legislation making such laws illegal was both justified and consistent with his philosophy — indeed, your very good point is that libertarianism requires one to support overturning a law that requires individuals to use their property in discriminatory ways.  So I don’t know that Paul has failed to appreciate that point, because he has said the provisions of the CRA outlawing government discrimination were justified — a position that, in my view, encompasses those aspects of Jim Crow that mandated private discrimination, which is really just government-enforced discrimination. 


I also don’t think it is entirely fair to say that Paul was “weeping” for the lost right of white businessmen.  Rather than “weeping” at their lost rights, I think Paul was saying that whether we should have tolerated the exercise of those rights in abhorrent ways is a legitimate question to ask.  What Paul really failed to appreciate was that it wasn’t a legitimate question to ask in 1964.  Permitting white businessmen to exercise discrimination “rights” in the historical context in play during the 1960’s was (1) impossible to distinguish from government-approved discrimination, because those “rights” had been codified as mandatory law for so long, and thus there was no real argument available at the time (unlike in our current historical context) that permitting businessman to discriminate would be nothing more than “toleration” of abhorrent behavior.  To the contrary, tolerating private discrimination directly on the heels of pervasive state-mandated private discrimination would have seemed like, well, state approval of, and even encouragement for, *wink-wink* non-mandatory private discrimination. Indeed, had private discrimination not been addressed in the CRA, there is no doubt that state and local governments would have found ways to encourage it to continue without explicitly mandating it.  (2) The system of segregation and discrimination was gravely immoral and completely unsustainable, and presented a very real risk that the south would become ungovernable.


Anyway, I otherwise enjoyed it.

As I am running to a meeting (technically, I’m about to run to a meeting), I’ll offer some thoughts later. But since so many readers have made roughly the same case, I wanted to get this up now. Back in a bit.


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