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Rand Paul is a Rock, Rand Paul is an Island

24 May 2010

Newly-minted GOP Senate Nominee Rand Paul has managed to find himself in a spot of trouble over the past couple of days:

I’d also direct you to the full interview, which can be found embedded here, along with Ta-Nehisi Coates’s typically cogent analysis.

Though it doesn’t take a particularly keen political acumen to see why it’s seldom a talking point in the Libertarian community, Paul’s argument isn’t a novel one. Shockingly enough, my first thought upon listening to Paul’s comments was not about Strom Thurmond, but Jonathan Rauch, a left-Liberterian journalist, philosopher, and introvert. Rauch, in his exquisite book Kindly Inquisitors, attacks speech codes–and those in effect on college campuses in particular–on substantively similar grounds. His book is a thing of beauty, and I’d urge anyone and everyone to read it, but in essence Rauch suggests that we are ill-served by attempts to curb ‘harmful’ speech, since the only way for a society to pursue truth is to allow the interrogation, critique, and either the subscription to or rejection of every viewpoint.  To do otherwise is not only to infringe on the most private of realms, but also to risk suppressing a true statement, either because it contradicts the reigning orthodoxy, or to protect an individual from the harm that such speech might cause–a risk that is unnecessary anyway, as human beings are far more effective at marginalizing fringe viewpoints than any regulatory body could hope to be.

Listening to his interview with Rachel Maddow, I imagined that were Dr. Paul to read Kindly Inquisitors, he would likely fancy himself as being ideologically in sync with Rauch. So far as I can determine, his opposition to restrictions on private business discrimination under the Civil Rights Acts of 1964 is rooted in two central axioms: First, that the government cannot, for any reason, interfere in the private affairs or business decisions of an entrepreneur (this he argues explicitly on any number of occasions); and Second, that such interference–even if technically permissible under relevant law–is unnecessary, since a business that chose to discriminate on such a basis would exponentially amplify its risk of failure by simultaneously limiting its clientele and drawing the ire of the marketplace in the form of organized and individual boycotts. In other words, economic factors would force a discriminatory business out of the market so quickly that government intervention would be, at best, redundant, and introduce great potential for collateral damage.  We must tolerate private discrimination, Paul says, because it is what freedom requires; moreover, we should tolerate it because it’s more efficient than the alternative.

Being a devotee of Rauch, I’m not unsympathetic to this argument on its face. However, unlike speech or truly private discrimination (i.e., not associating socially with persons against whom one is prejudiced), when applied to Titles II and VII of the CRA, or the Fair Housing Act of 1968*, neither the privacy nor the efficiency legs of Paul’s stance hold up very well in practice.

Protections against government intervention do not encompass all that originates within that individual sphere.  Rather, they exist to protect those actions that take place and have influence primarily–if not entirely– within that arena.  Libertarian arguments critiquing, say, Federal anti-narcotics laws, work under this rubric: provided a user of marijuana does so recreationally and does not endanger or harm others rights to life and the pursuit of economic and personal success through said drug use, then the case for government intervention is a difficult one to make. The same holds true for private discrimination–a decision to not invite a person to a dinner party based on their race, gender, or sexual orientation doesn’t measurably hamper the target of such discrimination in their own enterprises and endeavors. There is no consequence that rises to a level of a crime, or that can feasibly be redressed through the coercive action of government.

If it were the case that a business’ choice to engage in discriminatory practice had likewise purely private consequences, Paul’s stance would have some legs.  The problem, of course, is that it doesn’t. Let’s imagine, for a moment, that the titles of the CRA which offend Paul’s philosophy were stripped from the bill. A small town’s realty agencies could collude to no longer serve, say, clients of Hispanic descent. Public utilities, which under Paul’s scheme ought to be exempt from government oversight, would be free to refuse to connect electricity, water, or natural gas pipelines to households outside of their preferred clientele. Doctors–those who do not receive Medicare/Medicaid funding, at any rate–have license to refuse to provide medical care. That’s an extreme example, yes, but given the prevailing attitudes towards ethnic minorities in some parts of the country, and the fact that redlining is still a widespread practice, it’s hardly an inconceivable one.  With only a few actions, groups could be for all intents and purposes barred from participating in economic activity within any community in the country.  Sure, according to Paul, public agencies should be non-discriminatory. But unless one’s house is burning down, or being robbed, or they want to vote, they’re SOL.

So-called “private” discrimination does not yield only hurt feelings. Far from having only private effects, it actively hampers the private enterprises of others, depriving them of economic and personal opportunity. It can just as destructive to a farmer to have no company willing to transport their crops, or sell them the necessary equipment, as it would be for another person to set fire to their fields. Sometimes, of course, a victim of discrimination can work around such prejudice and succeed anyway–indeed, the fundamental tenet of Libertarianism can be summarized as “Got Problems? Work harder”–but quite often that’s not the case. There’s a difference between being unlucky, which is an individual problem, and having one’s pursuits deliberately curtailed, which is not. And if such interference isn’t consequential enough for business to allow government intervention under the Interstate Commerce Clause, I have difficulty imagining what is.

An opponent of these sorts of civil rights laws might also argue that even if such intervention is arguably permissible under the ICC, it would remain ill-conceived and inefficient policy. The Paleoconservative solution to discrimination hinges on the premise that most people will make the right decision, and oppose such evil. Forgive me if I lack faith in the public at large to actively combat discrimination with their feet. We live, increasingly, in a self-segregated world, and actively seek out like-minded communities. Instinctively, we desire neighbors who share our own convictions, values, and yes, our prejudices. There are many communities in which those who perpetuate discrimination are not an easily marginalized minority, but rather the group that controls all relevant institutions. And those who are not actively entrenching discriminatory barriers have a remarkable track record of minding their own business when push comes to shove. Absent a direct personal incentive to involve one’s self as an ally in the struggle for equality, the pull of one’s own conscience hasn’t historically been enough to compel members of the majority to do the right thing. And in the right kind of environment, those incentives can be very small indeed.

In taking Paul’s brand of Libertarian thought to its logical, if seldom-mentioned conclusion, Paul has ably demonstrated the ways that this sort of anti-Government rhetoric collapses in on itself.  Paul takes great pains to insist that government should be non-discriminatory, presumably to suggest that the public would suffer little from tolerance of discrimination in the private sector.  But I’m moved to ask: if all government ought to do is build roads and prisons, enforce contracts, and hold elections, what practical good does that do? As the public sector delegates most essential functions to its private counterpart, then the equality of public institutions is of increasingly minimal consequence. The right to vote matters very little if one does not have the right to buy–or fairly seek a job in order to buy–bread. People like Rand Paul and his father Ron have spent their careers so obsessed with the potential tyranny of government that they have completely neglected to fight the potential tyranny of the majority. If the history of equality in America reveals anything, it is that we ignore such forces at our own peril.

Paul’s remarks, then, don’t strike me as malicious or bigoted. Rather, they’re staggeringly naive. We do not have the luxury of pretending that discrimination has only abstract consequences, and it is Paul’s seemingly unbridled faith in people to follow their better angels rather than their lesser demons, not his lack of reverence for the CRA (which Paul, to be clear, supports despite his misgivings), that ought to give the Kentucky electorate pause between now and November. And for everyone else, it will hopefully serve as a good excuse to have more serious, thoughtful discussions about the basis of an equal society. Between Maddow’s even-handedness and Paul’s continual willingness to appear on her program, I like our chances of the latter, at least.

* Far more than the CRA, this is the section of Federal Law I’d really like to hear Maddow discuss with Paul.
2 Comments leave one →
  1. Jacob C. permalink
    24 May 2010 12:41 pm

    You are a fantastic writer, Hal. Great analysis; I enjoyed reading it.

  2. 1 July 2010 4:54 am

    Yeah, I agree with this a lot, and I think this is a pretty solid unpacking of the logic of right-libertarianism. Of course, it’s not only cases like the school’s or the parents’ handling of that prom in Mississippi that show what can happen when people with power discriminate; institutions of racism, homophobia, patriarchy, and racism are all sources of discrimination and disempowerment, and the problem is much of that is unrecognized by the people with the power and privilege in the first place. That’s what the Civil Rights Act and similar legislation are about.

    I haven’t read Rauch, and it sounds like I should. My problem with issues like this, though, is that while in a lot of key ways I’m nothing like Rand Paul (or his namesake Ayn Rand, shudder), in one or two key ways I am. I’m a left-libertarian/anarchist, and I want to believe that we don’t *need* state institutions to mobilize forces of non-discrimination, that state institutions are in fact part of the problem and that they perpetuate hierarchy and separate us from a real sense of healthy, organic community. However, I don’t think we have that kind of community right now, and I think the way to approach it is through mobilizing as much as possible in the social — not public/legislative and not private/business — sector, and through creating effective and organic dialogue wherever possible.

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