Memo To Rand Paul On The Civil Rights Act: The Issue Is Not Segregation—It's Anti-White Quotas

Latest polls show Rand Paul ahead in the Kentucky Senate race, despite continued hysteria about the Republican nominee's mild criticism of parts of the 1964 Civil Rights Act [CRA]. But the whole episode tells us a great deal about the liberal mindset—and about the limits and shortcomings of the Ron Paul and tea party movements.

Rand Paul is the son of Ron Paul and espouses many of the libertarian views of his father. With the backing of his father's supporters along with the more mainstream Tea Party movement embodied in Sarah Palin, Rand Paul won in a landslide victory in the Republican Primary over establishment favorite and Kentucky Attorney Secretary of State Trey Grayson.

As a libertarian, Paul opposes compulsory anti-discrimination laws, specifically aspects of the 1964 Civil Rights Act that applied to private institutions. This should not have been the surprise it obviously was to the political class—it's simply a matter of freedom of association and is axiomatic for libertarians, as even the fashionable television libertarian John Stossel has bravely said.

The hysteria began when, in an interview with the Louisville Courier Journal, Paul stated that a private institution with no government funding should be allowed to discriminate because, "In a free society, we will tolerate boorish people who have abhorrent behavior." [Rand Paul embroiled in Civil Rights controversy over remarks made on Courier-Journal video interview, by Joseph Gerth, Louisville Courier Journal, May 20, 2010]

For some reason, Paul then decided it was a good idea to show up on the Rachel Maddow Show to defend his statements. In her typically self righteous manner, Maddow grilled him and asked him flat out, "Do you think that a private business has the right to say we don't serve black people?"

Paul responded frankly, "yes" and then qualified,

 "I would never belong to any club that excluded anybody for race. We still do have private clubs in America that can discriminate based on race. But I think what's important about this debate is not written into any specific 'gotcha' on this, but asking the question: what about freedom of speech? Should we limit speech from people we find abhorrent? Should we limit racists from speaking?" [Paul: No repeal of civil rights law, by Manu Raju and Jonathan Allen and Jonathan Martin, Politico, May 20, 2010]

Of course, limiting speech is exactly what Rachel Maddow and co. want to do.  

Paul then backtracked in a press release:

"Let me be clear: I support the Civil Rights Act because I overwhelmingly agree with the intent of the legislation, which was to stop discrimination in the public sphere and halt the abhorrent practice of segregation and Jim Crow laws. As I have said in previous statements, sections of the Civil Rights Act were debated on Constitutional grounds when the legislation was passed. Those issues have been settled by federal courts in the intervening years" [Rand Paul Sets the Record Straight, Rand Paul for US Senate, May 20, 2010]

(Paul's position here is weak. There are plenty of other issues that have been "settled by federal courts" that Paul wants to overturn, such as Roe vs. Wade. But I digress.)

Paul then backtracked even further on the Wolf Blitzer show. He was asked: "Did Woolworth -- Woolworth, the department store, have a right, at their lunch counters, to segregate blacks and whites?" He responded:

"I think that there was an overriding problem in the South so big that it did require federal intervention in the '60s. And it stems from things that I said, you know, had been going on, really, 120 years too long. And the Southern states weren't correcting it. And I think there was a need for federal intervention." [Paul to Blitzer: "I Would Have Voted Yes" on Civil Rights Act, by Tom Bevan, Real Clear Politics, May 20, 2010]

Needless to say, Paul's backtracking did him no favor with the Democrats. DNC Chairman Tim Kaine huffed:

"Rand Paul's endorsement of policies that would result in a segregated America is indefensible. ... He thinks our civil rights laws represent 'government overreach,' and he would tolerate a country which allowed separate lunch counters and discrimination in housing and employment based on the color of someone's skin." [Rand Paul embroiled in Civil Rights controversy over remarks, by Joseph Gerth, Cincinnati Enquirer, May 20, 2010]

Obama Press Secretary Robert Gibbs puffed:

"I think the issues that, that many fought for in the '50s and the '60s were settled a long time ago in landmark legislation and the discussion about whether or not to support those, I don't think, shouldn't have a place in our political dialogue in 2010." [White House Says Rand Paul's Civil Rights Talk 'Shouldn't Have a Place in Our Political Dialogue in 2010', ABC News, May 20, 2010]

With Paul the nominee, most Republicans are standing by him as a candidate. But they are also going out of their way to proclaim their support of the Civil Rights Act

Senate Minority Leader Mitch McConnell's (R-KY) press secretary released a statement,

"Among Sen. McConnell's most vivid memories and most formative events in his career was watching his boss Sen. John Sherman Cooper help pull together the votes to break the filibuster and pass the Civil Rights Act of 1964. He has always considered the law a monumental achievement for the country and is glad to hear Dr. Paul supports it as well."

Even Jeff Sessions (R-AL,) perhaps the strongest immigration patriot in the Senate called his statements "wrong" and that "I think that was settled a long time ago, and the country is better off."

Sen. John Kyl (R-AZ) described Rand Paul's exchange with Rachel Maddow as "engaging in a theoretical debate… like you had at 2 a.m. in the morning when you're going to college, but it doesn't have a lot to do with anything." [Ron Paul Finds Few Defenders in Senate, by John Stanton, Roll Call, May 20, 2010]

My position: Bunk!

Contra Kyl, the negative consequences of the Civil Rights Act do in fact "have a lot to do" with a lot of our problems today!

Contra Sessions, the country is much worse off because of the Civil Rights Act!

Freedom of association is one of the most fundamental liberties derived from Anglo-Saxon common law. Dismissing these concerns as mere "theoretical debate" shows a complete disrespect for our Constitution and founding principles.

Moreover, there are not just theoretical reasons of principle, but very many reasons in practice why the Civil Rights Act is a complete disaster for this country.

Most vitally: The Civil Rights Act was almost immediately applied to enforce ant-white quotas. In 1971, the Supreme Court in Griggs v. Duke Power Co. decision interpreted the bill to bar anything that had a "disparate impact" on minorities, including requiring a high school diploma.  

Amendments to Title IX of the Act in 1972 also led to absurd feminist positions such as banning Father Son Baseball games.  

In the 1980s, the courts reversed some of the most egregious interpretations of the Act in Wards Cove Packing Co. v. Atonio and Price Waterhouse v. Hopkins. But these changes were effectively nullified by the Democratic-controlled Congress in the 1991 Civil Rights Act. (So much for issues being "settled" by the courts). Bush I's signing this Democratic legislation was the final straw that led to Pat Buchanan's fatally damaging primary challenge to him in 1992.

Moreover, beyond issues of race, the Civil Rights Act and the subsequent court decisions to justify it set precedent to allow to give the federal government virtually unlimited power to interfere in the private sector. Thus the feds justified their right to interfere with private businesses through a fantastic interpretation of the Interstate Commerce Clause of the Constitution. For example, in Katzenbach v. McClung, the courts forcibly integrated Ollie's Barbecue. This family-owned restaurant was right in the center of Alabama—but because some of its ingredients were produced out of state, they ruled that it was engaging in "interstate commerce", with, for example, Kelloggs of Battle Creek, Michigan.

Even if someone believes that the Federal Government has the right to ban racial segregation, the fact that this particular Act led to legalized anti-white discrimination and dramatically increased the power of the federal government should be more than reason enough for any conservative or libertarian to oppose it.

But Republicans are so afraid of being seen as critical of the Civil Rights Act that they can be scared into supporting the inevitable anti-white consequences.

Thus in 2004, on the 40th Anniversary of the 1964 Civil Rights Act, Delegate Eleanor Holmes Norton (D-DC) introduced H Res 676 to commemorate the Act. Holmes Norton's resolution not only celebrated the initial Act—it also celebrated the Amendments added in 1972 and 1991. Every single congressman but one voted for the resolution—including otherwise Politically Incorrect leaders such as Steve King, Charlie Norwood, and Tom Tancredo.

The single exception: Ron Paul.

Randolph Bourne famously said that "War is the health of the state."  In the last fifty years, racial egalitarianism has been the health of the state. Failure to oppose state enforced racial integration and egalitarianism undermines to oppose big government in all spheres. The Left understands this, but most conservatives and libertarians do not—or are too cowardly to admit it.

Jonah Goldberg noted the reason why liberals obsess over Rand Paul's remarks is that they

"won that argument, politically and morally. This is a fact liberals never stop reminding us, and themselves, about… How many activist groups insist that their plight is sublimely analogous to the civil-rights struggle? How many times did the Democrats try to make health-care reform a continuation of civil rights? 'When this body was on the verge of guaranteeing equal civil rights to everyone regardless of the color of their skin,' Senate Majority Leader Harry Reid (D., Nev.) intoned as he tried to ram health-care reform through, 'some senators resorted to the same filibuster threats that we hear today.'" [Rand Paul's Civil Rights Act Comments Revisited, by Jonah Goldberg, National Review, May 26, 2010]

This is true—but only because conservatives such as Bill Buckley, who once opposed the Civil Rights Act, made complete 180s in search of social approval from the Left.

What Goldberg apparently does not recognize is that if liberals were both "morally and politically correct" in supporting the Civil Rights Movement, then the government has the moral and political right to interfere in our private affairs.

The New York Times' Sam Tanehaus bemoaned the Tea Parties implicit "repudiation of politics [Read: Federal government] and its capacity to effect meaningful change." He goes on,

"However attractive it may be just now to depict all political conflict as a neatly bifurcated either/or, with the heroic individual pitted against the faceless federal Leviathan, the truth is that legislative battles over civil rights laws were waged within government, and between competing incarnations of it, federal vs. state." [Rand Paul and the Perils of Textbook Libertarianism, by Sam Tanehaus, New York Times, May 21, 2010]

Unless Rand Paul and the Tea Party Movement addresses the issues of race, there is absolutely nothing you can say to counter Tanehaus' argument.

With the passage of more than forty years, other problems with the CRA are becoming plain. All ethnicities are not equal in abilities and tend to prefer their own company. Forcing integrated equality is impossible, and refusing to recognize this fact will allow the government to continue to come up with new ways to intervene.

Moreover, blacks and Hispanics are much more likely to be employed by the government, on welfare, or not paying taxes. These groups have absolutely no reason to support limited government. The more we import and politically empower them, the less libertarian our society will become.

Rand Paul is in a perfect position to take a stand. Kentucky is 88% white and only 7% African American. The marginal black population will vote Democrat regardless, and the majority white Democrats and Independents are blue collar folks who are not going to be morally outraged over this issue like Rachel Maddow or the New Republic.

As the Atlantic's Marc Ambinder noted,

"Older, whiter people turn out in midterm years. I was impressed with Democratic turnout for the primary, but I really don't know whether it will be sufficient to produce a swing' vote that would be, or could be, offended by Paul's self-conscious identification with the Tea Party or with extreme libertarianism. Also, Kentucky is not like Georgia or Alabama -- states where African Americans would mobilize against a white politician perceived to be racist. Also, the more the media focuses on Paul, the larger the counter-reaction from his supporters will be." [Rand Paul's Views Aren't a Problem for Him in the Short Term, by Marc Ambinder, Atlantic, May 24, 2010]

Opposing the Civil Rights Act is not necessarily a winning issue. Most whites are distressed by discrimination against qualified blacks. And thanks to forty years of GOP pandering on Martin Luther King and race, Republican voters have been sufficiently brainwashed that they simply don't realize that King and the Civil Rights Act resulted in Affirmative Action.  

But most whites do also strongly support meritocracy and oppose racial preferences.

Rand Paul could have used furor as an opportunity to oppose affirmative action, and to explain that the Civil Rights Act was more than just ending state enforced segregation.

Of course, if Rand Paul is anything like his father, he is not just interested in doing what is politically expedient. No one would have thought that going back to the Gold Standard would have political resonance before Ron Paul's presidential campaign. But now his Audit the Fed bill has 319 co-sponsors.

But the paradoxical truth is that a politician who would articulately stand by these positions could both change the pathetic political discourse in this country and also win votes.

It remains to be seen if Rand Paul is willing to fill this role.

All other Republican politicians and "conservative movement" mouthpieces are not.

Ellison Lodge (email him) works on Capitol Hill.