Libertarians vs. Rand Paul

Thursday, July 1, AD 2010

A couple of months back Republican Senate candidate Rand Paul stirred up a hornets’ nest of controversy when he (briefly) indicated his opposition to Title II of the Civil Rights Act of 1964, which banned racial discrimination in “public accommodations” like restaurants and hotels. The controversy was notable not only for its utterly irrelevance to any current political issue, but also for the fact that even many libertarians distanced themselves from Paul’s position. I was out of the country at the time and so didn’t get a chance to comment, but libertarian think tank the Cato Institute recently published a libertarian defense of Title II and other civil rights legislation, which got me thinking about the issue again.

Defenders of Paul’s position (and there were a few) typically made one of two arguments; one based on an appeal to principle; one based on free market economics. The first argument is the straightforwardly libertarian one that individuals have the right to dispose of their property as they see fit, and while we might not like it if a business owner refuses to serve members of a particular racial group, it is still wrong to violate his property rights by telling him he can’t do so. I don’t have much to say about this argument, except to note how incongruously unpersuasive it is to most everyone today. Libertarianism is also criticized as being absolutist, but of course there are areas in which lots of people are willing to be comparably absolutist in their defense of individual freedom. Had Paul said, for example, that he supported the right of neo-Nazis to march through the streets of Jewish neighborhoods waving swastikas, his views would have been in keeping with those of most of the intelligentsia. Yet displaying a similar solicitude when the subject involves commercial activity is viewed as borderline crankish. The reasons for this discrepancy are probably worth further reflection, but I won’t dwell on them here.

Perhaps sensing that the argument from principle is a surefire loser, others have contended that laws such as Title II weren’t really necessary to end private discrimination by businesses. According to this argument, any business that turned away a substantial number of potential customers would soon find itself out of business, and absent legal mandates segregation would simply collapse under its own weight (call it the ‘everyone’s money is the same color’ argument).

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0 Responses to Libertarians vs. Rand Paul

  • A very interesting point.

  • The worst discrimination was at hotels and restaurants where white people did want to share sheets or plates with blacks or sleep or sit so close to them. I’d bet there were far fewer segregated bookstores. It’s also likely that the Civil Rights Act had a social impact beyond the four corners of the act. If you’re already eating and sleeping around blacks, walking around a bookstore with them doesn’t seem like a big deal anymore.

  • Never thought I’d support RR in most anything, but he does offer a counter-argument– one that falls right in the Libertarian blind spot. (being too rational–not a bad failing, all and all, just messes up some models)

    If the roots of segregation were irrational/emotional, then information/familiarity would be the target.

    The best way to gut-punch an emotional reaction is the social angle– so places where you go to shop and that’s all are poor choices (or good political sacrifices) to get what’s really important, the places where you go and interact.

    It’s sort of like the partial birth abortion stuff– very few pro-aborts really think it’s utterly needed, they just know they can’t give so much as an inch or folks might start to view the unborn as people.

  • I thought of RR’s counter and considered addressing it, but ultimately decided against it due to length concerns.

    With respect to RR, his explanation strikes me as being just a post hoc rationalization. Suppose you had told someone during the drafting of the Civil Rights Act, for example, that they didn’t need to include movies theaters under Title II because if you banned discrimination for restaurants and hotels it would disappear for movie theaters as well and just as quickly as if it had been included in the ban. I dare say they wouldn’t find that at all persuasive.

  • Were more transactional commercial venues like grocery stores and bookstores (of the sort not addressed in the bill) actually segregated in the first place?

  • I don’t see why it matters when debating the Civil Rights Act today, whether the breadth of the social impact was correctly assessed in 1964. My point was that the similar rates of change by businesses subject to the Act and businesses not subject to it is not a good measure of the Act’s efficacy because the nature of the businesses are different and the Act likely had a larger social impact.

  • For what it’s worth, I agree with both the principled argument and the economic one. For that reason I would not, myself, at the time, have supported the Title II of the Act.

    I don’t doubt that there is much truth to restrainedradical’s objection. But failing to torture Al Qaeda’s top guys, or failing to include improperly-gotten evidence in court trials, has possibly worse consequences for society; yet we have elected to stick to our principled “guns” on these items as well. And good for us. These are tough choices; but I think our society is better off, in the long run, for not taking sketchy shortcuts.

    But I sympathize with Paul and others who, under the current circumstances, feel unable to articulate the principled argument openly without derailing any conversation in which they are currently engaged.

    I think Blackadder (this is Blackadder’s piece, isn’t it? I hate how pieces published here have no obvious by-line!) is correct to say that the principled argument “is a surefire loser” and to note “how incongruously unpersuasive it is to most everyone today.” But I am afraid that is myopia on the part of “most everyone,” just as the notion of the moral acceptability of slavery was myopia on the part of “most everyone” in the antebellum southeast, or the acceptance of abortion or homosexual activity or artificial contraception is myopia by an awfully large number of persons today.

    So if Paul were to take the principled argument as his position, he would thereafter be able to talk about nothing else: Every conversation would be steered in that direction; every useful thing he had to say on any other subject at all would be lost in the din.

    What to do? Well, he could accept this as his lot and opt to make evangelizing the public toward accepting the principled argument his sole crusade. But who wants to waste his political life trying to convince folks that one portion of a law passed over forty years ago was morally wrong? (Talk about beating a dead horse!)

    Better to skip over the topic lightly and speak instead on topics wherein (a.) the public is more likely to listen to reason; and, (b.) the topic is of contemporary urgency, and not of merely historical interest.

  • explanation strikes me as being just a post hoc rationalization.

    Quite possible. Doesn’t mean it’s wrong, though– if we look at it with scientific terms, then the theory accurately explains the results of the experiment.

  • if we look at it with scientific terms, then the theory accurately explains the results of the experiment.

    The problem is that if there had been a difference that also could have been explained by the theory. If a theory is consistent with any result of an experiment, then the experiment cannot serve to corroborate the theory.

  • It’s possible that economic interests combined with a changing social tide would have eventually corrected the injustice but accommodating unjust discrimination by delaying justice is itself an injustice.

    As for the “principled” argument, there is no right to unjust discrimination.

  • Do we not in fact always discriminate? I am not referring to arbitrary discrimination; rather, to specific circumstances? For example, the Eucharist is reserved for baptized, confirmed Catholics and the priesthood for men only. One is a choice, the other is a physical characteristic. How is being male different than being black?

    It seems to me that the government is obliged by justice to treat all citizens equally before the law; however, it is a dangerous precedent to force private entities to do the same. Is it a moral requirement? Of course; however, when we use government to enforce that, it can become problematic.

    Based on the logic that a private restaurant MUST serve blacks, then the Catholic Church MUST ordain women if they desire to be priests, or open practitioners of Sodomy for that matter. It is a dangerous precedent and is now being used to create forced acceptance of all sorts of evils – homsexualism, cross-dressing, gender-neutrality (whatever that means), ad nauseaum.

    I was not alive when segregation was occurring and although I am not black, I suspect that the same establishments may have had some trouble serving a Levantine like myself (I do have that nappy, think black hair, after all) – nevertheless, white people I have spoken to who did reside here in Virginia back then gave it no thought. It wasn’t that they were racists (although I am sure many were, and some, sadly still are), they simply accepted the status quo. When it was brought to their attention due to the legislation and the Civil Rights struggle, they were accepting of it. It seems to be an issue of education and familiarity rather than racism. I suspect that could have been brought about without Title II.

    Furthermore, it seems that most of America was in favor of granting equal rights to blacks. It took a relatively short period from boycotts to action in the favor of justice. Then it seems the movement was stolen by lefties who found that ‘race’ was a great guilt-card to use in bringing about Communism/Marxism/Socialism. Not to mention all the money that was to be made. Notice the Tea Parties are suddenly racist and so is the entire state of Arizona – right after the country, democratically elected a half-black man as president. Come on.

    I think we can get lost in what could have happened, but we can’t fail to notice that forcing ‘justice’ on private individuals (selectivity at that – how does that even make sense?) can lead to severe problems of justice. I hope I am wrong, but it seems the sentiment of Title II and the poorly written 14th amendment can and probably will be used against the Church. Why did we open up that can of worms?

  • As for the “principled” argument, there is no right to unjust discrimination.

    Or, as they used to say, error has no rights.

  • American Knight, the reasons for the discrimination must be just. Racism is not a just reason.

    Why open up the can of justice? Because we’re Catholic. We force justice upon private individuals all the time. You can’t murder. That requires the government to define life which opens a can of worms but that doesn’t mean the government should be agnostic about murder.

  • RestrainedRadical, Blackadder:

    You fellows are correct to say that there is no right to unjust discrimination, that error has no rights.

    But in that case we’re talking about moral rights, not political rights. The former means things which under natural law we may do without thereby being immoral; the latter refers to things which the government may not rightfully use force to prevent us from doing.

    A thing may not be a moral right, but still be a political right, because the government lacks the just authority to enforce a prohibition against it. It’s wrong, but it’s not illegal.

    Error has no moral rights, but sometimes it has political rights. I have no moral right to argue in the public square that it should be legal to distribute hardcore pornography to six-year-olds, because because not only is the act itself egregiously evil, but so is the advocacy of it.

    However, I have a political right to make that argument in the public square because the government has no just authority to prohibit my political speech. Even when that speech is morally evil. (So long as it doesn’t include an immediate incitement to crime or endangerment of others; e.g., yelling “fire” in a crowded theater.)

    So the question is not whether discrimination against some customers, while serving others, has “moral rights.” It doesn’t; it’s evil.

    The question is whether discrimination against some customers, while serving others, has “political rights.” I think it does, because the government has no just authority thus to govern people’s use of private property, et cetera.

    Hence the “principled” Libertarian argument.

  • I guess I am not seeing the connection. It should be recalled that many of this enterprises had a connection with concepts in Common Law of welcoming all comers.

    There was no huge problem in the South of black folks buying cars from White Dealers

    There was a problem with people being able to eat at eateries and staying in hotels.

    Now of course a lot of this deters people to be in interstate commerce

    The whole system was upset to keep a particular social order intact. I might be able to buy a car from you or a TV from you but I can;t easily eat with you and discuss business or travel and have you at my hotel to discuss business.

    So no “market forces” would not have helped with this. In the background was a whole social system that would have come down on you if you opened up to these forces. That is what is missed.

    What is also missed is the law is a moral teacher. Once these laws came down it had the effect of making people realize that this system was indeed injust.

    When you buy a TV that does not threaten social stability. However when you have the right to break bread with a person regardless of race that does affect socialstability. The whole system was set up to make blacks inferior.

  • R.C., Cogent. Morally speaking, God wants us to choose justice, not be forced to be just. As for restrainedradical’s comment about murder, the government does not prevent murder (sadly it promotes it when the victim is an unborn child). Government prosecutes murderers, once the attempt or the accomplishment of the unjust act is executed. To R.C.’s point, if a court refuses to hear a case of say, a white poll inspector who was intimidated and threatened by say, a Black Panther who happens to be black simply because the Black Panther is black or a political ally, that is unjust racism! Since the court, or the department of justice, represents the government there is a duty to treat all citizens equally before the law.

    However, if a black restaurateur does not wish to serve Bobby Jindal simply because he’s ethnically Indian, then that is also racism and it is still unjust, but the government has no right to force the restaurant owner to be just toward Gov. Jindal. That would be up to us, often referred to as the ‘market’ to support the racist by patronizing his eatery, or to thwart the racist by not eating there. The ‘market’, or individual choice, mechanism is a far better tool for fraternal correction than the force of the government.

    jh, the system of segregation was horrible and it was openly codified in the South – the same system existed outside Beatnik culture in the North, it was simply more insidious because it wasn’t codified. I suspect most blacks still feel more welcome in the South than in the liberal North. Justice Thomas certainly thought so. Also, notice that laws on the books in the North during the antebellum period and for some time after the war, forbade blacks from working or residing in white towns and areas. Although, relegated to the horror of slavery in the South, many Southerners had closer interaction with negros than Northerners. They often ate together, their children played together and many were taught to read by their masters – principally to learn the Gospel of Jesus Christ. Does that mean it was OK for Africans to be enslaved by white Southerners? Of course not! It was also just as wrong to have them enslaved by freed blacks, or traded by Northern whites, Arabs, Portuguese, Muslims, etc. or sold by African chieftains. Out of all of those groups who was least evil to negros?

    Perhaps the Civil Rights movement would have been wholly unnecessary had we allowed the evil of slavery to be expunged from our lands by means other than war, military occupation, expanding government and dominance by an increasingly secularized WASP culture. Over 300,000 murdered black babies a year would agree if we’d let them be born. What’s worse slavery or murder? Or, segregation with traditional morals, or desegregation by decimating the black family? How does that affect social stability?

  • R.C., I’d argue that government has a moral obligation to correct injustice if it is able to do so. It may be the case that it is unable to do so. So we allow indecent speech even though the government is under no moral obligation to allow it. Arguably, employment and housing discrimination bans are too difficult to enforce but I don’t believe that was the case with restaurant and hotel discrimination in the 1960’s.

  • RestrainedRadical:

    You say: “I’d argue that government has a moral obligation to correct injustice if it is able to do so” …and then go on to consider whether, in particular instances, it is able to do so.

    But don’t you think you’ve missed a step? Or, rather, isn’t your original premise incomplete?

    Shouldn’t it be: “I’d argue that government has a moral obligation to correct injustice if it is able to do so…and if the only available means of correcting that injustice aren’t, themselves, unjust.

    For that, of course, is the source of the principled Libertarian argument in this matter.

    No Libertarian is arguing that discrimination isn’t unjust. And no Libertarian is arguing that Title II wasn’t a quick, easy (and thus “seductive” …pardon the nerdiness of the reference, but I have in mind Yoda’s homily answering Luke Skywalker’s question about whether the Dark Side of the Force was “stronger”) way to “nip discrimination in the bud.”

    The question is, “MAY we, justly, use such methods to solve our problems? Or would that constitute doing evil that good may come of it?

    The Principled Libertarian view here is that, no, despite its advantages, one may not temporarily abrogate the property rights of the citizenry in order to stop them discriminating.

    We would very much like a solution to prevent them from discriminating; however, that particular solution falls outside the set of permissible solutions; and thus, we must (with regret) reject it in favor of what may (sadly) be slower and clumsier solutions, such as encouraging markets to reward those who do business with and hire persons of all ethnicities through higher profits.

    So the point of debate is about whether Title II is whether it does, or doesn’t, cross the boundaries of what is permitted by justice. I hold that it does; but perhaps that’s something you’d dispute?

  • Yes, I dispute the idea that the state may not ban unjust discrimination. You have the right to private property but you do not have the right to do whatever you please on it. We ban murder even if it’s on your private property. Likewise, the state can ban unjust discrimination on your property. Libertarians may also point to the right to associate. But even there, you have no right to use unjust means to associate. You cannot keep individuals out through the use of murder. Likewise, you cannot keep them out through the use of unjust discrimination.

  • RestrainedRadical:

    “You have the right to private property but you do not have the right to do whatever you please on it.”

    What does it mean for something to be “my” property, exactly?

    Distinguishing again between moral rights and political rights, we know that if a particular tree is my property, I have no moral right to chop it down and carve it into an Asherah pole for pagan worship. One cannot have a moral right to do a wrong thing. But one may have a political right inasmuch as it may be a graver injustice for We The People to send our employees (the police power of the government) to imprison or kill a person for making their own tree into an Asherah pole.

    So, do political property rights permit a person to use their own property for pagan worship? I think they do.

    But notice that this does not directly injure my neighbor. (I think it does so indirectly, of course.) I therefore cannot conceive that it is just to directly use armed force against a person to compel them not to do something which directly harms no one. It is a disproportionate use of force, akin to nuking another country because one of their citizens published an anti-American op-ad. It is a violation, on a smaller and intra-national level, of the same moral obligations which, on a larger and inter-national level, are described in the Just War Doctrine.

    I can more easily conceive of something less direct; e.g., tax incentives or disincentives, or public funding for one of those treacly public awareness campaigns on television, to be used against pagan uses of property. This is a less disproportionate use of force, you see.

    I raise this principle in order to answer your objection that…

    “We ban murder even if it’s on your private property. Likewise, the state can ban unjust discrimination on your property.”

    Now, I think it’s a pretty well known principle that for something to be my property, as a political right, it means that I may do as I please with it without fear that my fellow citizens (themselves), or my fellow citizens (in the person of their employees, the government), or citizens of a foreign power (invaders) will kill me or imprison me or take my stuff over it.

    (As a moral right, property means something more; i.e., that I have been made a steward of it by God who rightfully owns everything on the grounds that He made everything, and as a steward I am obligated to use my property as He sees fit.)

    So something is not my property unless I am free to do with it what I will. But there are limitations to that, of course, and you raise one of them: Murder.

    But notice that Murder initiates violence (that is, it uses force) to take from someone something to which they already have a right (their life); and, not just a moral right, but a political right. It violates their political rights; it may therefore be criminalized through the political process. What we have here is yet another example of “my rights end where they begin to violate yours.”

    However Discrimination is in an entirely different category of act. It involves me not doing business with you, or not associating with you. But nobody has a political right to my business or my friendship. They may have a moral right, inasmuch as God wants us to love everyone. But in every case we see that in the matter of my neighbor I am more heavily obligated under the moral law than the political. (I have no moral right to gossip, but I do have a political right. I have no moral right to lust after my neighbor’s wife, but I do have a political right.)

    So then the Libertarian argument, with which I agree, is that discrimination is not a moral right, but it a political right; whereas murder is neither a moral right nor a political right.

    Moreover, in either the moral or political sphere, one may use one’s property in whatever way one sees fit (indeed, that is what is meant by calling it “one’s property,” provided one’s usage does not exceed one’s just authority by violating the rights of another.

    In the moral sphere, that means I may not use my property in a fashion that exceeds my just moral authority by violating the moral rights of another. If I do, I may be subjected to just punishment by the enforcer of the Moral Law (God).

    In the political sphere, it means that I may not use my property in a fashion that exceeds my just political authority by violating the political rights of another. If I do, I may be subjected to just punishment by the enforcer of the Political Law (the police power of the state).

    Now I said earlier that discrimination is a political right, tho’ not a moral one, whereas murder is neither. My entire argument hinges on this. If, in fact, discrimination is also not a political right, then my argument fails and yours wins.

    So the crux of the issue is this: By what principle may we distinguish between political and moral rights; and, once we have determined that principle, on which side of the line does discrimination fall?

    Once again, I think Libertarians have the correct answer here, and it stems from their observation that political rights are all about a code which is constructed and enforced by government. But what is “government?”

    Well, government is that organization in society to which we (uniquely) grant authority to use force to achieve its ends. Honda Motors may not compel me at gunpoint to buy their cars; the Lions’ Club or Rotary Club may not compel me at gunpoint to perform community charitable works; but government can compel me at gunpoint to obey its laws. The “force-wielding organization”: That is what government is.

    Because government’s identity is bound up with the use of force, it follows naturally that the rights and obligations within its sphere of just authority are also those of force. The government may criminalize murder because in murder, the attacker initiates unjust force against another. That the government replies to this use of force is obviously fitting, just as a nation’s armed response to an armed invasion is fitting.

    Government may also criminalize fraud, which is trickier, but not overly so, because fraud is intellectual force. If I buy your product because you put a gun to my head, I have done something I would not otherwise have done: You forced me. Likewise, if I buy your product because you have lied to me about what it is and does, I have done something I would not otherwise have done: You forced me.

    But you’ll notice that the forcing is slightly less direct with respect to fraud, than with respect to holding a gun on me. Therefore, the jail times associated with fraud are less than those associated with threatening my life.

    Now the Libertarian observation about Discrimination as opposed to Murder is this: Discrimination withholds activity whereas Murder acts forcibly, violently.

    It is therefore within the political competence of government, the organization which uses force to achieve its ends, to prevent and/or prosecute murder. But no use of force exists in the matter of withheld business or withheld friendship motivated by discrimination. Therefore this immoral act falls outside the competence and authority of government. A person has a moral right not to be discriminated against, but not a political right.

    Put another way: If Tom, Dick, and Harry live near one another and Tom observes Dick in the act of robbing Harry at gunpoint, Tom may morally intervene with force to stop this immoral act (indeed, if he knows his intervention is very likely to safely succeed, his intervention becomes morally obligatory). But if Tom observes Dick shunning Harry and knows that Dick is doing so because Harry is black (it’s apparently not for nothing the offender is named “Dick”), does Tom then have just moral authority to whip out a gun, point it at Dick, and say, “Go be friends with Harry?”

    I don’t think so. It’s disproportionate. It’s an Unjust War writ small. Tom has no just authority to do any such thing.

    But, if Tom has no such just authority, then he can’t delegate that authority to any of his employees…which includes the government.

    How, then, could the government be delegated such authority justly, if their employers (who’re doing the delegating) never had that just authority to begin with? Answer: They couldn’t.

    Thus discrimination in the form of withheld business or friendship is outside the political sphere of authority, whereas murder and other forms of force and fraud fall well within it.

  • In addition to RC’s excellent points, I would add that what counts as “unjust discrimination” is whatever progressives say.

    Churches in Europe and North America face constant threats and lawsuits from homosexual groups for not indulging their requests to use their property, or for even preaching that homosexual behavior is a sin. This is regard as “hate”, when of course, in reality, no one has more hatred in their hearts than radical homosexual activists do for the Church.

    It may even be “unjust discrimination” not to provide transgendered bathrooms in the future, or to make all sorts of additional accommodations to body-mutilators, transvestites, etc. Where does this madness end?

  • R.C., you have the moral right to worship according to your conscience, even if it is ill-formed, so long as it does not violate the rights of others. So you have the moral right (and therefore, necessarily, the political right) to create idols for pagan worship if your conscience allows it and the law allows individuals to chop down trees.

    Government can choose to allow unjust discrimination or prostitution or indecency but it does so out of concern for the common good not because there’s some political right archetype that must be obeyed even when contrary to the common good.

    Even if we accept the normative libertarian premise that government should not penalize victimless wrongs, unjust discrimination is hardly victimless. It does violence to the dignity of man as surely as defamation, assault, or murder.

    In your “Tom, Dick, and Harry” hypo, if Dick robs Harry, you don’t have the authority to lock Dick in your basement for five years. Governments have legitimate powers that individuals do not. Separate from that is the issue of proportionality. Government may not justly execute you for discriminating unjustly but it can prevent you from operating a restaurant.

Robert Byrd, Requiescat In Pace

Monday, June 28, AD 2010

Kristina Peterson of the Dow Jones Newswires writes for the Wall Street Journal this synopsis of Robert Byrd’s life:

Robert Byrd, the 92-year-old West Virginia Democrat who served in the U.S. Senate for 51 years, died Monday.

A spokesman for the family, Jesse Jacobs, said Mr. Byrd died peacefully at about 3 a.m. at Inova Hospital in Fairfax, Va. His health had been failing for several years.

A master of Senate procedures and orator whose Stentorian tones aimed to evoke the roots of the republic (if not Rome), Mr. Byrd served longer, voted more frequently, and probably used the arcane Senate rules to more effect any previous denizen of the nation’s senior legislative house.

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4 Responses to Robert Byrd, Requiescat In Pace

  • Mortuis nil nisi bonum, for today at any rate.

  • I pray that he’s in the company of the angels and the saints rejoicing in the eternal peace of God — the end that I a poor sinner hope to share in as well.

    I’m glad this post is not what I saw on LifeNews (i.e. “Pro-Abortion Senator Robert Byrd Dies”); I couldn’t fathom how there is absolutely no condolences, no mention of prayer or best wishes to his family or loved ones. The entire piece focuses on how pro-abortion he was, how many seats the Democrats now have, and how the Governor of West Virginia doesn’t know yet (the man died this morning, sheesh) who is going to replace Byrd with.

    I’m obviously pro-life, but respect and prayer for the dead should be embraced.

  • Eric,

    I agree.

    Hence why I chose the WSJ article instead of some others.

  • Prayer for the dead, yes. Silence in the presence of those who loved him, yes. Respect for a man like Byrd, too much to demand…