May 20, 2010

Rand Paul's Dilemma

As soon as he won the Republican primary in Kentucky, Rand Paul was accused of being a racist by those on the political left. Ben Smith got his digs in at Politico, and of course, Think Progress ratcheted up their outrageously outrageous outrage up to "11," and their usual talking points-following crowd immediately followed suit.

Paul has trapped himself in an untenable position thanks to being a fairly rigid libertarian, and James Joyner does an excellent job of explaining how a non-racist libertarian such as Paul can paint himself into such a corner.

Paulís views are identical to those I held when studying Constitutional Law as an undergrad and not all that far removed from my current position. There's no question in my mind that private individuals have a right to freely associate, that telling owners of private businesses whom they must serve amounts to an unconstitutional taking, and that it's none of the Federal government's business, anyway. Further, in the context of 2010 America, I absolutely think that business owners ought to be able to serve whomever they damned well please ó whether it's a bar owner wishing to cater to smokers, a racist wanting to exclude blacks, or a member of a subculture wishing to carve out a place for members of said subculture to freely associate with only their kind out of purely benign purposes.

The problem, circa 1964, was that there really was not right to freely associate in this manner in much of the country. Even once state-mandated segregation was ended, the community put enormous pressure on business owners to maintain the policy. That meant that, say, a hotel owner who wished to rent rooms without regard to color really weren't free to do so. More importantly, it meant that, say, a black traveling salesman couldn't easily conduct his business without an in-depth knowledge of which hotels, restaurants, and other establishments catered to blacks. Otherwise, his life would be inordinately frustrating and, quite possibly, dangerous.

In such an environment, the discrimination is institutionalized and directly affecting interstate commerce. It was therefore not unreasonable for the Federal government to step in using their broad powers under the 14th Amendment. I'm still not sure parts of the Civil Rights Act of 1964 (especially the issue in question here) or the Voting Rights Act of 1965 (especially treating individual states differently from others) are strictly Constitutional. But they were necessary and proper in the context of the times.

Paul's position may very well be accurate, but as Joyner points out, the probable unconstitutionality of portions of the law had to be weighed against standards of reasonableness in the context of the times in which the law was passed. The strict view Paul has taken is probably a constitutionally correct libertarian interpretation, but that is utterly irrelevant to the rhetorical campaign being waged against him.

In short, these stories do not seem to show that Rand Paul harbors racist sentiments or sympathies, but that his libertarian values are being used against him. I suspect that Democrats may try to keep pushing this issue or raise it again in the fall. Paul is going to have to come up with a less wonky response to this emotion-driven issue.

Right now, he doesn't seem to have one.

Posted by Confederate Yankee at May 20, 2010 10:37 AM

It is sad commentary on the state of our republic than Dr. Paul's attempt consequences of the Civil Rights Act of 1964 are demonized by Morons.

For her part, Rachel Maddow demonstrated nothing beyond the idea that the state has the power to prohibit of what she does not approve.

Only the world of the liberal is not selling lunch to Dr. King a moral outrage of the highest order, but killing your unborn baby is a precious constitutional right. Lucky for her, Maddow's mother did not exercise her rights.

Posted by: DavidL at May 20, 2010 11:03 AM

Yeah Lucky for her and unlucky for us.

Posted by: Oldcrow at May 20, 2010 12:29 PM

How old was Rand in 1964?

For that matter I think that the CRA was one of the absolutely worse bills ever passed. It robbed States of their rights and distoryed the concept of private property. Attitudes toward blacks were changing at the time and the bill was not needed.

The result, we are all in prison as a result of this bill. We can not board a plane without exceptional hassel (useless). We have exceptionally ignorant voters as a result and many are voting several times on the back of this bill. The situation in Arizona is a result of this bill. The list could go on and on.

Posted by: David at May 20, 2010 01:05 PM

as Joyner points out, the probable unconstitutionality of portions of the law had to be weighed against standards of reasonableness in the context of the times in which the law was passed.

That makes no sense. Would you say that the Second Amendment could be scapped based on "standards of reasonableness in the context of the times in which the law was passed"? The entire point of having a constitution is that it makes it difficult for Congress to pass laws eliminating certain rights.

If we're going to let Congress and the courts ignore the constitution, than lets tear up that old piece of paper and be done with it.

Posted by: flenser at May 20, 2010 05:02 PM