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Friday, May 21, 2010

Rand Paul - A Utopian Ideology of Libertarianism

Yesterday, as you know, US Senate candidate Rand Paul stated that under his brand of libertarian conservatism he can’t support the 1964 Civil Rights Act or other non-discrimination legislation as applied to private businesses. He goes out of his way to explain that he doesn’t actually favor segregated lunch counters, he just thinks it would be wrong to do anything about them.

I myself am more a libertarian than many I know. I agree that the government should not overly intrude upon our private lives. However, I also am a pragmatist and realist. Taken to the extreme (as suggested by Rand Paul), the libertarian position which Rand Paul proposes is simply unworkable.

His position (which I liken to a healthy College level debate about a Utopian ideology of libertarianism) has been proven to produce horrific results. Under his view, an owner – even if he is open to the public – can decide who to serve, who to have as customers. And he doesn't see what the fuss is all about, blaming the media attention of “the loony left”. You know, all those blacks and gays and women - Americans.

And I am not alone in my view that his position is sophomoric and unworkable.

In an article on AOL (, AOL News contacted several prominent libertarian scholars Tuesday and rather than come to Paul's defense, the three who were willing to be quoted came down as supporters of the law.

  • "I think Rand Paul is wrong about the Civil Rights Act," libertarian Cato Institute scholar Brink Lindsey wrote in an e-mail. "As a general matter, people should be free to deal or not deal with others as they choose. And that means we discriminate against those we choose not to deal with. In marrying one person, we discriminate against all others. Businesses can discriminate against potential employees who don't meet hiring qualifications, and they can discriminate against potential customers who don't observe a dress code (no shirt, no shoes, no service). Rand Paul is appealing to the general principle of freedom of association, and that general principle is a good one.
"But it has exceptions. In particular, after three-plus centuries of slavery and another century of institutionalized, state-sponsored racism (which included state toleration of private racist violence), the exclusion of blacks from public accommodations wasn't just a series of uncoordinated private decisions by individuals exercising their freedom of association. It was part and parcel of an overall social system of racial oppression," Lindsey said.
"Paul's grievous error is to ignore the larger context in which individual private decisions to exclude blacks were made. In my view, at least, truly individual, idiosyncratic discrimination ought to be legally permitted; for example, the "Soup Nazi" from Seinfeld ought to be free to deny soup to anybody no matter how crazy his reasons (they didn't ask nicely, they mispronounced the soup, etc.). But the exclusion of blacks from public accommodations wasn't like that -- not even close."
  • "To be against Title II in 1964 would be to be brain-dead to the underlying realities of how this world works," said professor Richard Epstein of the University of Chicago. "In 1964, every major public accommodation that operated a nationwide business was in favor of being forced to admit minorities." National chains, he explained, feared desegregating in the South without the backing of the federal government because they feared boycotts, retribution and outright violence.
  • "We have to start with some historical context," e-mailed George Mason Law professor David Bernstein, who is also a blogger at The Volokh Conspiracy. "If segregation and discrimination in the Jim Crow South was simply a matter of law, federal legislation that would have overturned Jim Crow laws would have sufficed. But, in fact, it involved the equivalent of a white supremacist cartel, enforced not just by overt government regulation like segregation laws, but also by the implicit threat of private violence and harassment of anyone who challenged the racist status quo."
"Therefore, to break the Jim Crow cartel, there were only two options: (1) a federal law invalidating Jim Crow laws, along with a massive federal takeover of local government by the federal government to prevent violence and extralegal harassment of those who chose to integrate; or (2) a federal law banning discrimination by private parties, so that violence and harassment would generally be pointless. If, like me, you believe that it was morally essential to break the Jim Crow cartel, option 2 was the lesser of two evils. I therefore would have voted for the 1964 Civil Rights Act," Bernstein concluded.
For me, one of the fundamental principals of our American-society is the concept (expressed by Thomas Jefferson in the Declaration of Independence) that all men are created equal - that they are endowed with certain unalienable Rights- that among these are Life, Liberty, and the Pursuit of Happiness.

Essential to that theory in American law is also the concept of protection from the tyranny of the majority.  This concept, used in discussing systems of democracy and majority rule, is a criticism of the scenario in which decisions made by a majority under that system would place that majority's interests so far above a dissenting individual's interest that the individual would be actively oppressed, just like the oppression by tyrants and despots.

Ayn Rand, Objectivist philosopher and novelist, wrote against such tyranny, saying that individual rights are not subject to a public vote, and that the political function of rights is precisely to protect minorities from oppression by majorities. Similar arguments are made by a number of other philosophies that support individualism, including the Austrian movement, and libertarianism in general.

It is because I believe that our American society may only flourish so long those who are disadvantaged or disenfranchised are afforded the same rights and privileges as the majority, that I cannot accept Rand Paul's Utopian ideology of Libertarianism.  We as a society are better off when we protect those who need our protection the most.

Would it not be better to debate the extent of the American's With Disabilities Act and the Civil Rights Act rather than seek to overturn them as an unwarranted intrusion by government?

1 comment:

  1. This is such a thoughtful review of the issue. I don't think Paul has thought his stance all the way through. He's been doing a lot of re-stating of what he meant by saying he's opposed to Title II of the Civil Rights Act, but he still seems to be missing the point.