I find this debate over what Rand Paul told NPR about the Civil Rights Act, and what it means about his position on race, absolutely fascinating. I think Paul's statements are entirely defensible, but are extremely difficult to explain. Not surprisingly, I think Althouse's analysis is pretty good:
He likens private property rights to free speech rights. If you care about free speech rights, you defend even the people who say horrible things — Nazis, the KKK, etc. That's standard constitutional law doctrine. In Rand's view — and in the view of many libertarians — property rights work the same way. So you could have this horrible racist restauranteur who excluded black people, and the government would have to leave him alone, just as the government couldn't do anything about it if a white person had a dinner party at his house and only invited his white friends.One can certainly disagree with Paul and many people do, but what fascinates me about this debate is the connection that Althouse makes. Most of us will vigorously defend the right of individuals and groups to say idiotic, hateful and twisted things. We may use our own speech to denounce those people, but we will not try to silence them through government action. However, how many of us would go that far in terms of private property rights?
Those rights are also protected by the Constitution and just because it isn't the "First" amendment does not make it any less important to defend - though at times you get the impression from the legal treatment of the 10th Amendment, but I digress. We here at LiB have been fairly consistent in defending the rights of property owners when it comes to smoking bans and other government regulations. Brad's work on development at Inside the Footprint is excellent and makes private property rights the centerpiece of his mission. I have even defended Augusta National for their membership policies, which are facially neutral.
But would any of us stand up and defend the right of a business owner to refuse to serve Blacks or Hispanics? Gays or Lesbians? Jews or Muslims? To be honest, I don't know the answer.
I've grown up in an era where the Civil Rights Act is settled law and Affirmative Action is an accepted fact. When others make a big deal about the "first-minority-this" or "first-minority-that" I am often left wondering two things: 1) Really, it took this long? and 2) That's nice, but is it that big of a deal?
This is not to say that I do not feel some pride when we pass some of these barriers, but I have a difficult time seeing things in that way. I don't see President Obama as a Black man, I see him as a President. Same goes for Colin Powell or Clarence Thomas, I see them as a great general and a Supreme Court Justice. I know it sounds like I'm bragging or compensating or whatever, but it really is the truth.
So back to the issue raised by Rand Paul and Althouse. I can't imagine any business owner barring a specific group of people from their business, but I can't really imagine saying the things that Neo-Nazis and KKK members say and think either. If it is a private business, does the owner have that right?
It is a painfully difficult issue when you think about it. Speech is easy to defend in this context. The property rights issue involves someone taking action to exclude and discriminate against a specific group which makes it more tangible and more painful. It's harder to ignore. It also reminds us of one of the worst eras of our nation's history and the one sin for which our nation paid with a bloody Civil War and a bloody Civil Rights Movement that secured equal rights for all Americans. After all that how could anyone defend someone who would still discriminate like that?
Unfortunately, as Rand Paul points out, Freedom is a tricky thing. It's tough and it will test your patience and commitment every single day. If Liberty and Freedom are worth fighting and dying for - as I believe they are - then do we have to protect the right of others to abuse them? That's a tough question and I'm not sure I have the right answer. Is Rand Paul a case of courageous adherence to principle, or is he a "closet" racist?