Recently, Rand Paul, who won the Kentucky Republican primary for Senate, has come under fire for his remarks regarding the Civil Rights Act in the 1960s. He happens to be wrong, but not for the reasons people think and certainly not because he is a racist, as some are claiming. So, I'm going to tell you what he thinks based on his recent appearance on the Rachel Maddow show and then I'll tell you why he's wrong, so you'll have to read to the bottom.
Rand Paul believes that the federal government does not have the constitutional authority to tell restaurant owners who they can and/or cannot serve. This is quite obvious from the exchange with Maddow. This does not make him a racist however, as some have claimed. In fact, he presents a pretty interesting Constitutional argument. First, private property rights are protected by the Constitution and so allows an individual who owns a business great leeway over how they run their business. In fact, the federal government can't be involved in this business at all if it is not interstate commerce, Rand would argue. Secondly, he obviously feels that the constitution protects a person's right to free association. In fact, the Constitution does protect our right to pick and choose with whom we associate, so as a private and free individual, I can choose to hang out with Rand Paul or Rachel Maddow or both, as long as they are willing to hang out with me. Putting these two rights together, Paul ends up with his opinion. That a private business owner's property rights and rights to free association allow that business owner to choose who he will and will not serve. An interesting argument with one major flaw.
What is that flaw you ask? Quite simply, he is ignoring negative rights theory, which is the backbone of our Constitution and of libertarian thought. A negative right is what our Constitution protects. They are the unalienable rights Jefferson refers to in the Declaration of Independence. They encompass a lot more than just the right to life, liberty and property however. In fact, think of each person as an individual. Now, draw a circle around them. Within that circle, each individual can act as they see fit within the bounds of their own conscience and beliefs. This includes the possession of a weapon, the freedom to say what you want, the ability to practice your religion as you see fit, and so on, including the right to free association as described above. It is only when your circle crosses over into the circle of another that rights violations occur. For instance, you have private property rights at your home and can have someone arrested if they choose to violate your property rights by getting up on your porch without your permission and start making a speech. They'll claim their right to free speech and if they are a group, they'll claim a right to peaceably assemble. Both of these are legitimate rights, but they can't interfere with your right to property. So, they are trespassing, not exercising their free rights. If that individual or group stayed in the public street to make their speech, then they are not violating your property rights and therefore have a right to speak and peaceably assemble. Got it? If not, I have a ton of examples, just ask.
The government, under the U.S. Constitution is not allowed to infringe on these rights at all, which is why Rand Paul argues that Congress overreached with a portion of the Civil Rights Act. He believes the government overreached its authority when they legislated at the federal level that a restaurant owner can't choose to not serve a black person. Not because he believes in discrimination, but because he thinks we needed to have had greater "discussion" at the time over the constitutionality of this section of the legislation. Considering how much Congress routinely ignores the Constitution, I'm not surprised there wasn't much more discussion about this, however, I am certain that Paul can be persuaded that this law is within the constitutional bounds for the U.S. Congress with a very logical argument.
You see, the difference between what the federal government can do and what the state governments can do is very important to a libertarian and this, to Paul, is outside what the federal government is allowed because it infringes on the rights of property and freedom of association. However, the federal government is also clearly mandated to protect the rights of the people. In fact, that idea is firmly entrenched in libertarian thought as well. So, while the government can't do anything to or for you, they can protect your rights from being violated by others. After all, your right to something ceases when it crosses over into the sphere of another, as I explained above. This brings us back to Mr. Paul's point. Can a business owner prohibit someone from frequenting their business? According to his statements, property rights and freedom of association would seem to dictate that a business owner can choose to discriminate based on whatever they choose. Scary as that is to think of, it isn't a bad argument, just an incomplete one. You see, we come full circle now back to negative rights theory. In a free society, a person has a right to expect service at a business that is operating anywhere where it serves the public. In other words, if you walk into a clothing store, you expect to be allowed to browse (even if there is nothing there you'd ever buy). If you walk into a shoe store, you'd expect to be serviced by buying shoes. The same is true for a restaurant. So, if a person chooses to operate a business that is publicly accessible to all, then by the very nature of a business, that person has chosen to give up a few of their property rights since a LOT of people are going to show up uninvited. In addition, the same condition applies to their freedom of association because they can't pick and choose who might walk in their doors. So, a business owner who chooses to not serve someone solely based on their race, is violating the rights of the individual who walks through the door of that business. Since the states in the south had set up laws allowing this kind of discrimination, it was incumbent on the federal government, constitutionally, to protect those rights.
Wait though, we aren't done yet. There is something else to consider here. Take this logically and one could argue that the federal government can do whatever it wants. This is actually not true. It has already been determined that the federal government can't legislate smoking in restaurants. They've prohibited it in all federal buildings and on federal property, but not restaurants. Why? Because this is outside the scope of what the federal government can do. This goes back to negative rights theory as well. The government can't do anything to you or for you, it can only protect your rights. By passing such legislation at the federal level, the government would be declaring that you don't have a right to kill yourself through smoking and that a restaurant owner does not have the right to serve you if you do. So, in this case, the federal government would be violating the rights of the patron and the business owner. Therefore, this has to be done at the state and local level. But wait, aren't rights being violated? Perhaps, but it comes back to a very subtle difference. Behavior.
You see, your unalienable rights extend in a circle from your person up to the point where they infringe on another's circle, remember? Therefore, if someone is running a business, they must cater to whomever walks in the front door, at least until that person behaves badly. If that person tries to steal, if they damage something, if they aren't dressed properly, etc., then the business owner can ask them to leave without serving them. This is not a violation of the other person's rights, but rather the other person violating the right of the business owner to run their business. You often see a sign at most business establishments saying no soliciting. This is because a person trying to sell something within a particular business is violating the business owner's rights as well as making an assumed association that may not exist between themselves and the business owner in the minds of his patrons. A person who screams and yells or commits another act of this nature can also be asked to leave because they are disrupting the ability of others to shop, eat, whatever. This is the difference. A person does not have a right to freedom of expression, speech, whatever, when that right violates the rights of others, so behavior issues allow a business owner to discriminate in order to properly do business.
So, Rand Paul is wrong, but not because he is a racist, but because he hasn't followed through with the logic of his position. Rather than calling him a racist for this, we should try to figure out what he believes and why and point out, as I've done above, the error in his thinking. He can then choose to accept it or reject it. Let's stop with the name calling though.
