The Constitution vs The Civil Rights Act: Is Racial Discrimination protected free speech or a violation of law?
Congressional Candidate Rand Paul recently ignited a firestorm when he suggested that while he personally opposes racism and discrimination, he believes that private clubs, restaurants, and businesses should be allowed to make their own decisions about whether or not they would discriminate [Link to Video]. He went further to suggest that outlawing discrimination restricts the freedom of speech provided by the constitution and that if we say that that private business owners must serve people of all races, then we must also require that they serve patrons who are armed as well.
*Sidenote* Candidate Paul was NOT insinuating that the black or minority patrons would be armed, rather he was making an abstract and somewhat hyperbolic argument that if minorities have the "right" to attend any facility then gun owners should as well...
As the news cycle progressed, a cry came from conservative side of the spectrum that the claim that Dr. Paul offered a tacit defense of racial discrimination was overblown and politically motivated. Rand Paul himself has described the charges as a "red herring". However, the charges are firmly supported by Dr. Paul's previous statements. For example: in 2002, Dr. Paul wrote a letter expressing his opposition to the 'Fair Housing Act' which read in part, "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." He has also come out in opposition to the Americans with Disabilities Act during an interview with NPR in which he opined that issues of discrimination should be handled "locally".
But it would be a mistake to treat these arguments as an extreme position. In fact, Rand Paul has merely demonstrated his firm commitment to the libertarian philosophy. And while Libertarianism is certainly too small of a political movement to significantly impact American Policy on its own terms, the "Freedom from Government" philosophy at its core has certainly become more mainstream with the ascendancy of the Tea-Party groups and the Republican Party's anti-establishment push to the Right. A thread of this line of thinking can even be seen in the Supreme Court where the court recently used the equal protections clause of the 4th amendment to challenge the disparate outcome protections of the Civil Rights Act in Ricci v DeStephano. Shortly after the ruling, Justice Scalia reportedly said that he wished he could review the Civil Rights Act itself. Seen through this lens, we should be clear that Rand Paul is not the issue, nor is he a monster or an anachronism, he is just someone who was willing to publicly defend and articulate the Libertarian philosophy out to its logical conclusions.
Rather than attacking him, we should challenge his argument. He has articulated the libertarian belief that the rights of private ownership should not be abridged. He has also argued that discrimination in a private business or enterprise is an act of free speech and therefore should be protected. In stating his personal disdain for racism and discrimination and his claim that he personally would not frequent a business that practiced discrimination, he alluded to the libertarian belief that the Free-Market system can and will self correct against racism and discrimination without Government intervention: That good and decent people will simply refuse to do business with people who discriminate and that combined with the cost incentive to serve minorities and others will simply 'drive the racists out of business'.
It is a sound and coherent argument, but it is simply wrong. It is perfectly logical in its abstract form. But the weakness of the argument is that it does not consider a critical and fundamental fact; Racism is irrational.
You can not craft successful social policy based solely on theoretical models because Racism is not bound by the laws of reason. Simply put, there are enough people who ARE willing to frequent those shops and businesses to provide a livable wage to the owners, and racial bias is sufficiently strong in some to lead them to forgo even the promise of higher profits through increased business. When discrimination was treated as a local issue, discrimination was commonplace. For as long as discrimination was not treated as a matter of law, discrimination flourished. The markets did NOT correct it. The markets Could not correct it. It was
If racism and discrimination are abhorrent as Dr. Paul has stated, then it's simply not enough to decry the practice when prompted. It's simply not enough to promise a symbolic solidarity that you might personally choose to avoid a business or institution that YOU had the right to frequent unfettered and without limitation, while they literally barred others from their door. If racism and discrimination are abhorrent, if you find them evil, if they are a blight on our society, then commit to stopping them. These are not theoretical issues. We can not wish them away. There is no scholarly or philosophical middle-ground. We either tolerate them or we don't.
