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I’ve been waiting for a few days to comment on Rand Paul’s controversial belief that private businesses should be allowed to discriminate against people of various protected groups.

A reader at the Daily Dish wrote something that basically characterizes my thoughts on the subject:

Here’s the problem with Rand Paul’s statements over the Civil Rights Act. If he were truly a pure libertarian, they’d be defensible theoretical views, as you point out. But, as Time magazine notes:
Paul has lately said he would not leave abortion to the states, he doesn’t believe in legalizing drugs like marijuana and cocaine, he’d support federal drug laws, he’d vote to support Kentucky’s coal interests and he’d be tough on national security.

Paul is willing to bend the issue of pure personal freedom for drug laws, abortion, and even coal subsidies … but he thinks telling a restaurant it cannot discriminate is a bridge too far? I still don’t think he’s racist, but what he chooses to be ideologically pure about certainly raises my eyebrow.

As I said a while back (can’t find link), the litmus test for anyone attempting to cloak themselves in libertarianism must be whether the person supports ending Drug Prohibition. Other issues like federalizing abortion prohibitions are important but the Drug Prohibition question really gets to the heart of an issue that can only have one answer for a true libertarian (i.e., full legalization).

Color me surprised that yet another supposed libertarian has decided to throw away some of his alleged libertarian cred at the slightest inkling that he might actually have to get elected.

Update: In an interesting twist, Rand Paul actually said recently that he doesn’t consider himself a libertarian:

“They thought all along that they could call me a libertarian and hang that label around my neck like an albatross, but I’m not a libertarian,” Paul says.

“Foolish consistency syndrome” — I like it!!

  1. Gherald says:

    Yup, I agree it's hypocritical--like many things in politics. I posted my thoughts on the matter here:

    I submit that this is what a pragmatic politician needs to do to be elected in Kentucky.

    If he were able to hold more pure views, unbeholden to his constituency, I'm sure he would jump at the chance.

    Opposition to this part of the 1964 Civil Rights Act is a good lesson in the real meaning of freedom. In the same fashion that free speech means defending people who choose to say vile things, free association means defending people who choose to discriminate. Both are First Amendment 101, and hopefully a useful illustration of Rand's ideology that will be less politically perilous (in Kentucky) than it would be to instead stake out an unpopular position against all federal drug laws, abortion laws, or coal subsidies.

    • Metavirus says:

      Ah, my beloved Gherald the Apologist is back for more! :)

    • Metavirus says:

      by the way, you're wrong as to your quote on "First Amendment 101".

      It's actually Commerce Clause 101. In a unanimous ruling, the Supreme Court upheld the constitutionality of the Civil Rights Act in Heart of Atlanta Motel, Inc. v. United States:

      "The Supreme Court ruled that Congress had the power under the Commerce Clause to enact the prohibitions on discrimination contained in the public accommodations section of the Civil Rights Act of 1964. Justice Thomas Clark wrote the opinion for a unanimous Court. He reviewed testimony presented at congressional hearings showing that Americans had become increasingly mobile, but that African Americans were discriminated against by hotels and motels, and often had to travel longer distances to get lodging or had to call on friends to put them up overnight.

      Justice Clark noted that under the Interstate Commerce Act, “…the power of Congress to promote interstate commerce also includes the power to regulate the local incidents thereof, including local activities in both the States of origin and destination, which might have a substantial and harmful effect upon that commerce. One need only examine the evidence which we have discussed above to see that Congress may—as it has—prohibit racial discrimination by motels serving travelers, however 'local' their operations may appear.”

      Justice Clark also found that the Act did not deprive the motel owner of liberty or property under the Fifth Amendment. Because Congress has the right to prohibit discrimination in accommodations under the Interstate Commerce Act, the motel “has no 'right' to select its guests as it sees fit, free from governmental regulation.”

      • Gherald says:

        We libertarians have this weird idea that the First Amendment to the Constitution enshrines a an unalienable right to Free Association, and that both of these trump the Interstate Commerce Act.

        I know, we're strange like that.

        • Metavirus says:

          well, it's nice to be constitutional dilettantes and disregard a unanimous decision by the highest legal body in the land, which happens to be tasked with being the final arbiter of constitutional interpretation.

          And just to give you a shaving off the body of legal education I've accumulated, I do hope you'll realize -- going forward -- that the First Amendment (e.g., freedom of speech, freedom of association) is anything but inviolate. When government makes a law that potentially impacts the first amendment, the Supreme Court evaluates the law based on what is called the standard of "strict scrutiny":

          The court will apply the strictest scrutiny to the state or federal action when it impacts or targets a specially protected class (e.g., a racial or ethnic group) or when a fundamental and Constitutionally protected right is involved (e.g. freedom of speech or the right to vote). [Such] government action or statute subject to strict scrutiny must be done in furtherance of a compelling state interest, and must be narrowly tailored to achieve that interest.

          Armchair constitutional lawyering by non-lawyers doesn't interest me very much when it is not actually based on the interpretive jurisprudence that undergirds all constitutional law.

          • Gherald says:

            So libertarians who don't think regulating private discrimination is a compelling state interest, and who object to a ruling by 1964's radical Warren Court, are constitutional dilettantes? Hmph.

            Moreover, if you look closer you might notice I said "both of these"--an unalienable right being the other thing. If a law and associated interpretation of the Constitution violate such a right, then they are illiberal by my definition, and we should work to overturn them.

            Or at least, that's what I shall endeavor to do. You can go on quoting Warren Court rulings like gospel…

            • Metavirus says:

              there is a big difference between being philosophically illiberal and being unconstitutional.

              and your dismissal of a unanimous supreme court decision by spittle-flecking it with "warren court" derision doesn't really do much for your argument.

              • Gherald says:

                I didn't say there wasn't a difference, I said both apply here. And my individualist liberalism certainly informs my interpretation of the Constitution.

                I'm sorry the court disagreed with me here and that you think it's so awfully dilettante for people like Rand Paul and me to have a different opinions about the first amendment and commerce clauses, but c'est la vie.

                • Metavirus says:

                  oh, you're certainly welcome to have opinions about it but your perspective is necessarily limited by your lack of knowledge about, or apparent disregard for, how the constitution has been interpreted over time by our highest legal body.

                  • Gherald says:

                    Well of course we disregard how it has been interpreted--we think it should be interpreted differently.

                    It's not like there's no rational basis for our interpretive ideas. I'm just not a lawyer--you can go talk to a libertarian or conservative one if you're interested in more informed legal arguments.

  2. Gherald says:

    Reading your second update, are you truly endorsing a critique of Rand for being hypocritical AND foolishly consistent, in the same post? Gotta love the "heads I win, tails you lose!".

    In any event, Bruce Bartlett is wrong: libertarian property rights are in opposition to segregation laws, as Andrew posted recently.

    • Metavirus says:

      well, it's really hard to tell. rand used to be a pretty reliable libertarian like his dad. NOW, he says he's NOT a libertarian. not to mention the fact that he said BEFORE that he does not support the title of the civil rights act that prohibits discrimination in private business, and NOW he's backtracked and says he DOES fully support it.

      what is one to believe? If he's twisted up in knots over this, i don't feel bad about doing the same :)

      • Gherald says:

        Area man runs for office, develops convenient positions on local issues and eschews a stringent, nonpartisan ideological label….film not at 11, not ever, because it's fucking obvious.

    • Metavirus says:

      P.S. you're misreading the bartlett quote. that snippet is talking about the fact that the market did not in fact lead to desegregation — over a significant period of time. (i.e., "the free market did not lead to a breakdown of segregation… Thus we have a perfect test of the libertarian philosophy and an indisputable conclusion: it didn't work.")

      • Gherald says:

        Uhm, that's because there were laws enforcing segregation on the market?

        Libertarian philosophy doesn't work out so hot when there's laws against it, so you and Bartlett would be correct to note this…. but it's a banal fact.

      • Gherald says:

        Here's a more representative quote from Bartlett. You left out some key stuff:

        As we know from history, the free market did not lead to a breakdown of segregation. Indeed, it got much worse, not just because it was enforced by law but because it was mandated by self-reinforcing societal pressure. Any store owner in the South who chose to serve blacks would certainly have lost far more business among whites than he gained. There is no reason to believe that this system wouldn't have perpetuated itself absent outside pressure for change.

        This is correct as far as it goes. But there's no reason to believe that such pressure could not have itself been societal, combined with the pressures of a free market. But it was never given a chance, because we transitioned directly from Jim Crowe illiberalism to the illiberalism of banning private discrimination.

  3. Metavirus says:

    The apology tour will be stopping next in tuscaloosa. Pick up yourtickets today!

    • Gherald says:

      Here's what I'm certainly not apologizing for: Rand Paul may well become one of the most libertarian Senators in recent history…similar to his father, who was most libertarian Representative currently serving.

      That's a good thing.

      Rand Paul won't vote the libertarian line on everything. He's not perfect. He's just likely to be better than anyone else.

      So if you object to Rand Paul on libertarian grounds, you'll be objecting to all his peers even more so.

      Personally, I'm more interested in getting all those other more statist people out of office than in focusing on how Rand Paul is not the second coming of Thomas Jefferson.

  4. Gherald says:

    Your conclusion does not follow from your premise. Relatedly, to the extent that it's valid your premise doesn't mean what you think it means.

    I do hope Rand's appeal to the tea party helps get him elected, and from what I know of him personally there are reasons to believe he will toe the Republican line less than all the other senators matters of personal freedom…which will make him the most libertarian.

    • Metavirus says:

      well, you can take it on faith. i, however, do not see evidence for such faith.

      • Gherald says:

        Not taking it on faith, taking it on an active assessment of the man and his positions. And it's funny how many progressives agree with me on this, too…I'll quote some of Ygelsias's commenters for you later when I find the the time.

  5. You guys like arguing on blog comments.

  6. Metavirus says:

    And it's been platonic rhetorical love ever since :)

  7. Metavirus says:

    Ps. I REALLY miss Culture11!!

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