The Wall Street Journal on Rand Paul

Jake F. writes:

I’d be interested in your thoughts on this WSJ article about Rand Paul:

It says that he has his history wrong, and maintains that the Civil Rights Act was not overstepping states’ rights at all. Given your understanding of the 14th Amendment, I presume you disagree; but I thought it would be worth asking the question anyway.

Here is the unsigned WSJ editorial column that Jake sent:

Rand Paul’s Constitution
The Kentucky candidate’s bad history.

A Senate campaign is not a libertarian seminar, a lesson that Kentucky Republican Rand Paul has learned the hard way since his primary victory on Tuesday. He has now renounced the doubts he expressed last week about some parts of the Civil Rights Act of 1964 and has declared the matter closed. But before we move on, it’s important to understand why Mr. Paul was wrong even on his own libertarian terms.

In his acceptance remarks on Tuesday night, Mr. Paul sounded mainstream conservative themes on spending, taxes and the reckless expansion of state power. But in his first brush with national scrutiny, the eye doctor let himself be drawn into a debate over the landmark 46-year-old law. Some conservatives want to blame liberal journalists for asking the questions, but Mr. Paul agreed to appear on MSNBC, and such queries were predictable given the liberal stereotype that all conservatives are secretly racists.

Mr. Paul then handed his opponents a sword by saying that while he favored the civil rights statute’s ban on public discrimination, he thought it was mistaken to prohibit private bias. Asked if a restaurant should be able to refuse service to blacks, Mr. Paul was at first evasive but eventually replied, “Yes.”

Even if Mr. Paul was speaking out of a principled belief in the rights of voluntary association, he was wrong on the Constitutional and historic merits. The Civil Rights Act of 1964—and its companion laws, such as the Voting Rights Act of 1965—were designed to address abuses of state and local government power. The Jim Crow laws that sprang up in the South after Reconstruction and prevailed for nearly a century were not merely the result of voluntary association. Discrimination—public and private—was enforced by police power and often by violence.

In parts of the mid-20th-century South, black men were lynched, fire hoses and vicious dogs were turned on children, and churches were bombed with worshippers inside. By some accounts, two-thirds of the Birmingham, Alabama, police force in the early 1960s belonged to the Ku Klux Klan. State and local government officials simply refused to acknowledge the civil rights of blacks and had no intention of doing so unless outside power was brought to bear.

The federal laws of that era were necessary and legal interventions to remedy the unconstitutional infringement on individual rights by state and local governments. On Thursday Mr. Paul finally acknowledged this point when he told CNN, “I think there was an overriding problem in the South so big that it did require federal intervention.”

One tragedy of that era is that the frequent use of “states rights” arguments to defend Jim Crow discredited those arguments for decades and eased the way for federal intrusions on state power that really are unconstitutional. ObamaCare would be exhibit A. By giving his opponents an opening to portray him and his tea party supporters as racial revanchists, Mr. Paul has let them change the campaign subject from the Obama Administration’s willy-nilly expansion of the corporate state. He owes his supporters, and his own libertarian principles, better than that.

[end of WSJ article]

LA replies:

I’m amazed at how badly argued and ignorant this article is. It’s like something by a liberal propagandist or some ignorant commenter at a blog, not by the Wall Street Journal. The unnamed editorial writer simply speaks of general injustices against blacks, and leaps to the conclusion that everything in the 1964 Act was a justified response to that. He doesn’t even touch the specific issue of Title VII, which outlawed discrimination in private employment, and which was the part of the law Paul said he thought was unconstitutional. Unfortunately Paul messed up the Title VII issue by defending discrimination in a restaurant. A restaurant is a public accommodation. If, as he says he does, he supports the part of the law outlawing discrimination in public accommodations, then restaurants are a part of that. Discrimination in private employment is distinct from discrimination in public accommodations, from governmental discrimination, and from Jim Crow laws which require discrimination against blacks. The writer doesn’t present any constitutional justification for the federal government’s intrusion into the private decisions by employers as to whom they hire. In my view, outlawing Jim Crow and outlawing the exclusion of blacks from public accommodations were both arguably justified under the original 14th amendment, the purpose of which was to assure the fundamental rights of the freed blacks without which they could not carry on the normal activities of life. By contrast, there is no constitutional justification for Title VII—it is a revolutionary, lawless expansion of federal power. It is the fountainhead of the anti-discrimination tyranny under which we now live.

On another issue not mentioned so far, I would say that there is no justification under the 14th Amendment for outlawing school segregation, which the 1964 Act does or at least enforces. The 1892 Plessy v. Ferguson decision upholding separate but equal facilities in railroad cars and by extension in schools was a sound decision and had never been successfully challenged. Prior to 1954, federal courts had consistently upheld school segregation as outside the reach of the 14th Amendment. This was not a difficult call, since the legislators who passed the 14th Amendment stated explicitly that the Amendment did not apply to racially separate schools. That was why the Supreme Court in order to overthrow the separate but equal doctrine in the 1954 Brown decision simply went outside the Constitution and didn’t even deal with the precedents in this area. If school segregation and discrimination in private employment were absolutely unacceptable to the conscience of the country, the only constitutional way to eliminate those practices would have been by constitutional amendment.

Posted by Lawrence Auster at May 24, 2010 12:42 PM | Send