Date: Mon, 08/02/2010
Author: Mark Grannis
Earlier this year, Kentucky Senate candidate Rand Paul drew unfavorable press attention for his remarks about the Civil Rights Act of 1964. Even though Paul is a Republican, his libertarian sympathies led some people who had never paid much attention to libertarians to ask whether we are soft on racial bigotry.
Do libertarians really believe that all civil rights legislation was wrong? Would we repeal the laws protecting voting rights and desegregating public accommodations if we could?
For “the short answer,” let me start with Section 3.5 of the Libertarian Party platform, which “condemn[s] bigotry as irrational and repugnant” and adds, “Government should not deny or abridge any individual’s rights based on sex, wealth, race, color, creed, age, national origin, personal habits, political preference or sexual orientation.” The preamble likewise states “that respect for individual rights is the essential precondition for a free and prosperous world.” Libertarians want a government that is radically neutral toward its citizens. Libertarians therefore proudly support laws like the Voting Rights Act that protect political equality, as well as those provisions of the Civil Rights Act that banned discrimination in voter registration practices and prohibited racial segregation in government agencies, public schools, and other public facilities.
But what about the part of the Civil Rights Act that banned private discrimination? That’s where Libertarians draw attention to the downsides of government intervention. Laws banning private discrimination can be justified on libertarian principles, but probably only as a response to the historically unique issue of race. To understand the pros and cons of anti-discrimination laws, let’s look a little more closely at our Constitution and our history than either Paul or his critics did.
Race in Our History
The actual history of the fight for civil rights in this country is not the good-government fairy tale in which some cable celebrities seem to believe. Their story seems to be that 1964 was the year an enlightened government finally ended 350 years of private discrimination by immoral individuals. That is wildly misleading. The truth is that during those 350 years black Americans were victimized first and foremost by governments. Governments treated African-American slaves as sub-human until 1865. Governments treated runaway slaves like lost property that had to be returned. Nearly a century after the Civil War, governments still treated black Americans like second-class citizens, and governments looked the other way and refused to protect black Americans from violent attacks on their lives, liberty, and property.
Meanwhile, classical liberals like William Lloyd Garrison—people who today would be called libertarians—agitated privately for racial justice. These proto-libertarians attacked slavery as “man-stealing,” a violation of the slave’s self-ownership. And the latter-day civil rights movement behind Martin Luther King was a model of powerful non-violent witness by individual citizens who refused to accept the injustice of their laws. Governments did not lead that movement; governments were more often aiming the firehoses and loosing the dogs.
The story of the Civil Rights Act, then, is not that pure-hearted legislators finally prevailed over wicked owners of segregated lunch counters; it is that individuals with a thirst for equal justice under the law put their very lives on the line for racial equality, and in so doing they finally shamed Congress into exercising its constitutional power to stop state governments from treating blacks as second-class citizens.
Race in Our Constitution
Sadly, most non-lawyers have never heard of Congress’s express constitutional power to secure political equality for Americans of all races, but that power was granted to Congress at the end of the Civil War, in the Fourteenth Amendment. Section 1 of that Amendment finally extended citizenship to black Americans and prohibited states from depriving freed slaves of the full equality to which they were entitled. Section 5 of that Amendment stated, with remarkable breadth, “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” That’s what the Civil Rights Act of 1964 was doing.
Unfortunately, Congress also claimed, unnecessarily, that the Act could be justified as a regulation of interstate commerce—and that’s what has raised concerns among people who favor small government. Constitutional law typically respects precedent, so each expansive interpretation of government power in one case paves the way for further expansions in other cases. An expansive use of the power to remedy racial discrimination can easily be limited to the historically unique issue of race; but an expansive use of the commerce power necessarily expands Congressional power over activities that have nothing to do with race or any kind of discrimination.
For example, if Congressional power over commerce is broad enough to justify laws that force sellers to sell to certain buyers, then it is presumably also broad enough to force buyers to buy from certain sellers. And there’s nothing hypothetical about that; just this spring, we saw Congress invoke its commerce power to require all Americans to buy compulsory health insurance. Likewise, if Congress can regulate the racial composition of a business’s employees under its commerce power, then Congress can presumably also use the commerce power to regulate what those employees are allowed to earn—another encroachment on economic liberty that is unfortunately no longer hypothetical. Other bills in recent years have relied on the commerce power in order to place federal limits on how much carbon we can emit, or how fast we can drive. Thus, Congress’s invocation of its commerce power to pass the Civil Rights Act was pregnant with the possibility of even more intrusion on private action in the years ahead. That would not have been true if Congress had relied only on its power to implement the Fourteenth Amendment.
The Price of Purging Prejudice
With that historical and constitutional context, we can finally get to the heart of the controversy over Rand Paul’s remarks. No true libertarian can be soft on racial bigotry; we are zealous in our defense of each individual’s right to equal justice under law. But we pay dearly with our liberty if we cede to Congress the power to compel economic transactions between unwilling participants. Many libertarians believe that the Civil Rights Act’s prohibition on government-sponsored segregation would have been sufficient to end private discrimination throughout the south. We can’t know for sure, but if so then it was unwise to expand federal power that way. And in any event it was unwise to expand the federal commerce power when a more specific power to combat racial discrimination was already in the Constitution. Our historical experience of how power corrupts tells us that the individual liberties of all Americans would be safer today if we all recognized that the Civil Rights Act was entirely about racial equality, and was in no way typical of the kind of power Congress should exercise over private businesses.
Racial discrimination is our nation’s original sin; the greatest stain on our founding and the cause of our bloodiest war. We are a better society because of civil rights legislation—not as good a society as if racial discrimination had never existed, but that option was not on the menu for anyone alive today. The libertarian insight is that our willingness to let government depart from strict neutrality—to let government be non-neutral toward bigots—set a precedent that made government more powerful and our liberty less secure. Acknowledging that, and showing an appropriate wariness about government power, is the least we owe the memory of those who suffered so long under government-sponsored racial aggression.
