Rand Paul and Civil Rights

Big hullaballoo about an interview today between Rachel Maddow and Rand Paul in which the newly minted Republican nominee appeared to favor discrimination by private enterprises.

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Amanda Marcotte notes: "Well, I suppose that’s the end of the friendly relationship Rachel Maddow has with the Paul family." I don't agree - if son is anything like father, he thoroughly enjoyed the opportunity to raise a controversial issue and be a general contrarian. Marcotte predictably blames libertarianism, which I find a bit odd for no other reason than that calling the anti-gay, anti-civil liberties, anti-immigrant Rand Paul a libertarian is kinda like calling a collection of Garfield comics a novel. It looks kinda like it might work as one, but in the end there's only a passing similarity. Furthermore, I think if you listen to the interview Paul makes it quite clear that he isn't a racist, and that desegregation even in private enterprise is an overall good thing. So it's a more than a little absurd to call Rand Paul a racist on the basis of this interview or the quotes Maddow cites at the beginning of the show. In fairness to Maddow, she never makes that accusation or even implies it.

Rather, I think Paul gets lost in the woods a bit. He attempts to invoke free speech when that particular Constitutional issue is at best tangential to the issue at hand. To someone who opposes federal regulations such as non-discrimination laws on a Constitutional basis, this is an issue of free association and the Commerce Clause, which was used as justification for federal regulations on privately-owned businesses (it's also used for minimum wage, ADA, OSHA requirements, and others). Paul lets himself be tarred as a racist simply because he didn't make the obvious argument that he was no doubt trying to make - in his opinion, the Constitution doesn't give the federal government the power to force non-discrimination on private business, no matter how desirable that outcome might be. He hints at this with his guns in restaurants story, but doesn't make his point (that under the liberal view of the Commerce Clause used by these regulations, the federal government could pass a law requiring all businesses to allow weapons in their businesses) clearly at all.

The Supreme Court, of course, has spent the last 50 years agreeing with the liberals on the Commerce Clause issue. Even I think the Commerce Clause goes too far at some points - for example, allowing the federal government to regulate activity that doesn't even involve interstate commerce because it looks like it might, maybe, possibly, at some point, affect a price somewhere. (Raich v. Gonzales, anyone?) But technically speaking, if a business participates in interstate commerce, it's open to federal regulation, and nowadays most businesses do. That's what the Constitution says. Paul's hypothetical on guns would, in fact, be legitimate if ill-advised. I think Paul understands this and, for the most part, accepts the Civil Rights Act as constitutional.

Which leads us to the weaker ground Paul was standing on. He effectively conceded that the government has the power under the Constitution to desegregate businesses but claims that it would have been ill-advised on small-government grounds. But that's a tough argument to make to people who have seen images of the violence and vitriol that went with segregation. If the government has the power to eliminate an injustice, most people are going to say that it should do so.

It reminds me somewhat (bear with the historical geek here) of Grover Cleveland's veto of the Texas Seed Bill in 1887. The bill was a reaction to a drought that killed massive amounts of crops in Texas; Cleveland cited Constitutional limitations in vetoing it. Texans appeared to understand - they voted for him again in 1888 - but it contributed to an unpopularity that would push him out of office (barely) that year. The Constitutional argument is unconvincing in Cleveland's case, and most people would agree that if people are suffering and the Constitution gives the government the right to do something, it probably should.

Cleveland, and now Rand Paul, ran up against the inherent limits of the small-government theory. Grave injustices don't correct themselves. Constitutional limits are there for a reason and should not be broken, but if there is no Constitutional limit on the federal government's limiting suffering or stamping out injustice, then why should it not do so?

(A final footnote. One could certainly make the argument that market-based methods for limiting suffering are more effective - indeed, I am generally sympathetic to such arguments. But suggesting that the government should do nothing when, by doing something, it would improve the situation overall isn't going to fly well with most people, myself included.)