Thanks to Rand Paul, the Republican candidate for the U.S. Senate from Kentucky and son of maverick libertarian Republican Ron Paul, we find ourselves in an unlikely debate about the Civil Rights Act of 1964 and the legal permissibility of race discrimination in the private sector. Late last month on the Rachel Maddow MSNBC show, Paul opined that privately owned establishments should be able to decide whom to serve without government interference.
A firestorm ensued. While Paul quickly clarified that he would neither advocate nor support a repeal of the Civil Rights Act clause banning discrimination by private businesses, libertarian TV journalist John Stossel fanned the flames on Fox News by not only defending Paul's initial remarks but explicitly suggesting that that portion of the law should be repealed.
Some on the left, including the Media Matters watchdog group, have demanded Stossel be fired for his heresy. In fact, his view is neither inherently racist (he has stressed that he would never patronize a restaurant that excluded blacks) nor "repugnant," as Media Matters claims. It is an intellectually consistent and legitimate, if moot, argument.
Yet this controversy also illustrates a certain myopia that often plagues discussions of race among supporters of small government, and plays into knee-jerk charges of right-wing racism.
Predictably, many on the left are convinced that the free-market arguments are just a veneer for racism. Miami Herald columnist Leonard Pitts mocks Paul's assertion that he would have marched for civil rights with Martin Luther King, Jr.: as proof of perennial conservative hostility to blacks, he notes that Paul's argument for business owners' freedom of association echoes the language of segregationists in the 1960s.
Yet at least one noted libertarian-leaning conservative who made such an argument at the time was a staunch foe of segregation in public institutions and a promoter of voluntary integration in private ones. That was Barry Goldwater, the U.S. Senator from Arizona and 1964 presidential candidate. Goldwater, who opposed the Civil Rights Act, had pushed to desegregate the Arizona National Guard and the Senate cafeteria, and had ended segregation in the Phoenix department store owned by his family.
But while the libertarian argument against anti-discrimination laws is certainly not racist, it sometimes seems uncomfortably naive (in 1964 or today) about the social realities of Jim Crow. As some strong champions of free markets, such as legal scholar Richard Epstein, have pointed out, racial segregation and discrimination by private businesses in the South was not simply the result of owners' personal choices but of powerful societal pressure as well as coercion by state governments. Businesses that refused to discriminate were targeted for officially sanctioned or condoned harassment and intimidation.
Would "whites only" business practices have crumbled fast, as some libertarians believe, if the federal government had limited itself to dismantling the public foundations of segregation? Or was bigotry too pervasive, too deeply entrenched in minds and morals? The latter seems more likely. Moreover, for generations this private bigotry had been not only enabled but fostered by public policy, from slavery onward. Writing in The New Republic, John McWhorter, an insightful, iconoclastic black commentator, defends Paul's and Stossel's right to express their unorthodox views but also asserts that "the social rejection of racism was driven in large part by the head start, authority, finality, and even the drama of the legal banning of segregation."
Most likely, over the long haul, overt discrimination against blacks in the private sector would have become socially unacceptable and mostly extinct. But could American society have afforded to wait? To answer "yes" is to underestimate the urgency of the issue, the evil of Jim Crow. Segregation was not merely an inconvenience or a violation of abstract principle but the systematic degradation of American citizens who were black. When African-American singer Dorothy Dandridge sang in all-white nightclubs, she often had to urinate into a cup because she wasn't allowed to use the bathroom.
It's fine to discuss the intellectual merits of free-market and free-association arguments against the ban on private discrimination. But the reminder that 50 years ago, such obscene practices were not only condoned but socially approved in large parts of this country should shock our conscience as Americans. A dispassionate or glib attitude on the subject is not a good way to win people over. One cannot talk about anti-discrimination law as an infringement on liberty and forget that for the first two centuries of America's existence, its treatment of blacks was a grotesque stain on its libertarian ideals.
Yes, post-1964 civil rights law has generated real problems. Legally mandated colorblindness has evolved into legally mandated race preferences to remedy discrimination. Anti-discrimination law has expanded to more and more protected categories, to the point where a gym can be held liable for dismissing a fat fitness trainer.
Curbing these excesses is a worthy goal. But calling for a repeal of the ban on discrimination in the private sector is both utopian and reckless, and Paul’s unequivocal rejection of such a position was a laudable move. Opponents of intrusive government, including journalists of Stossel’s stature, should know how to pick their battles.
Cathy Young writes a weekly column for RealClearPolitics and is also a contributing editor at Reason magazine. This article originally appeared at RealClearPolitics. This column first appeared at Reason.com.