I like James Taranto’s take on Rand Paul’s view of the 1964 Civil Rights Act:
Far from being evasive, Paul has shown himself to be both candid and principled to a fault.
We do mean to a fault. In this matter, Paul seems to us to be overly ideological and insufficiently mindful of the contingencies of history. Although we are in accord with his general view that government involvement in private business should be kept to a minimum, in our view the Civil Rights Act’s restrictions on private discrimination were necessary in order to break down a culture of inequality that was only partly a matter of oppressive state laws. On the other hand, he seeks merely to be one vote of 100 in the Senate. An ideologically hardheaded libertarian in the Senate surely would do the country more good than harm.
As a matter of pure theory, it is wrong to use violence to force anyone to associate with anyone else. But in the context of U.S. history, it seems to me that a forceful, governmental response to ingrained discrimination was necessary.
10 thoughts on “Taranto on Paul on Civil Rights”
Jason, this history and your case seem to me precipitous. When discrimination at all levels of government had barely ceased, if it had begun to cease at all, there was little opportunity for the discovery of the costs of unwarranted discrimination. Moreover, the principle that the Bill enshrines is that not just what you do, but your reasons for what you do, are subject to coercive sanction, never mind the fact that (as Kant observed) reasons cannot be coerced. Since they are not, we have a system of proxies that, I think it’s pretty clear, are subject to gaming in all sorts of ways. We now have a bad precedent and bad legal policy, all because it was “necessary” to solve a problem that government itself was as deeply implicated in as any private ventures or associations. And we have a hodgepodge of regulations extending the reach of the governance of reasons, many of which level flatly incompatible demands on citizens. Unlike the decline of private unwarranted discrimination, that legacy is clearly and certainly the legacy of the Civil Rights Act.
It’s true that capitalism had already broken down segregation in certain parts of the South. Many businesses didn’t want to discriminate – especially in employment. It hurt their bottom line.
But there were also parts of the South where whites were killing blacks and civil rights workers and being acquitted by all-white juries. I think those are places where white racism was so entrenched that many retail businesses would have continued segregation because of consumer demand, and that this would have prolonged the suffering of the black population.
Now, a better solution might have been reparations – forcing discriminatory state governments to make restitution to their black residents. If comprehensive enough, such a program could have raised black purchasing power, breaking white consumers’ stranglehold over retail businesses.
It’s true that the CRA has encouraged racial quotas by creating a category of thought crime, and that’s a real cost of the path that Congress chose.
Jason, my concern is not (just) racial quotas. It’s that it enshrined in law that we owe others not just not to do certain things to them, but that we have a coercible duty to them not to think certain things about them. That’s both false, morally, and corrupt and corrupting, legally.
I don’t disagree that racism was so entrenched in many places that it might have taken a long time to be undermined by reason. But racism is with us anyway, although arguably not to the degree it would have been without the Act (how can we assess that counterfactual?). And the principle that some people owe opportunities to others, of the sort that businesses offer in trade, I think there is simply no plausible defense for. And the argument that private discrimination needed to be outlawed because government was so shot through with it that it was ineffectual seems to me really to be a non-sequitur. Then again, you could make the case that when things get sufficiently screwed up morally in some place and time, there really is no fully acceptable way to proceed. That seems to me perhaps the best defense, but to succeed it must take into account the really serious pernicious effects that the Act had in law.
But does the CRA really criminalize thoughts or actions? I think more the latter. If a business refuses all black customers or puts up signs reading “whites only” on their restrooms or water fountains, aren’t these obviously discriminatory acts? In these cases, you don’t, in the ordinary course of events, need to investigate people’s reasons for doing what they are doing, because they are prima facie discriminatory.
Now what has come out of that is that if you don’t hire “enough” people of certain ethnic, linguistic, age, race, gender, or whatever identities, you can be subject to legal penalties. That’s a gross flaw in the application of the law, but it still seems to me that one can denounce that flaw while still maintaining that at a particular time & place passing the law was justified.
Jason, does the Act criminalize putting up the sign? Or the discrimination? At any rate what is morally objectionable isn’t discrimination (since discrimination is what learning consists in), but unwarranted discrimination. There’s no wrong in prima facie discrimination per se; it’s only when it’s unwarranted and and expression of disrespect for others that there’s a moral problem with it at all. Meanwhile the law assumes that all instances of certain kinds of discrimination not only are wrongful, but are wrongs others have coercible rights to resist.
What is at stake is not, not serving blacks (say); nobody is required to serve anybody else if your restaurant is full, or is closing, or your power is out, or … What is wrongful isn’t not serving blacks, but not doing so for some particular reason, viz. that they are black. It’s the thought that makes the moral wrong; without it there’s nothing to object to. The sign is wrong because it is an expression of an attitude towards (some) other people that is morally reprehensible. But the law simply cannot get at thoughts — all it can do is get at proxies. So the law is one step removed from getting at the moral problem in the first place. And then it opens the door to legal interventions (of the sort you consider and others) that aren’t even hooked up with real moral wrongs at all. Once you start policing people’s reasons for acting, you’ve lost something really important, I think, about the boundaries between persons that make civil society possible.
I see your point, Mark, but I think the acts in question can go beyond simply thought crime because of the ways that acts can communicate thoughts. Actions that are intrinsically innocuous (turning away a customer) can in context communicate thoughts in ways that are invidious & harmful. For instance, burning a cross – stripping away the context – is an inherently meaningless act that would, without further context, lie in the realm of the morally permissible. However, put the cross-burning in the South circa 1965, and it’s quite clear what it means. You don’t really have to read minds – and the point of the cross-burning is not to express an opinion, but to intimidate. In the same way, I think to have a policy of turning black customers away, to put up discriminatory signs, etc. all point to a kind of invidious discrimination that’s wrong &, furthermore, coercibly wrong within the context of a society that is founded on racist violence. But I see how reasonable people can disagree on that last point & acknowledge the costs to deliberative rationality & long-term justice that you point out.
Jason, first, I have to agree that thought and action are in one sense inseparable. You’re right that the wrong goes beyond the thought to the expression of it in action, and that does indeed make the action wrong.
What I would do better to emphasize is that it is the thought that makes it wrong. I think we agree that some sort of conduct that is innocuous in one circumstance is morally impermissible in others. The difference-maker is the nature of the thought and intention behind it. What the law has to do, then, since it can see only conduct, is test for the moral impermissibility of that conduct by assessing the thought behind it. You’re right that in some cases that’s an easy call. The problem is that the law cannot include any criteria for what counts as an easy call and what doesn’t. The coercive apparatus put in place to handle the easy and obvious cases has to work on hard and non-obvious cases as well. That means it must be in the business of testing and assessing reasons for action and thoughts. That, I think, is a serious problem, both immediately and by making reasons and thoughts subjects for coercive control. Beyond that, when the law does that it invites the kind of exploitation and gaming that we’ve seen anti-discrimination law invite.
I’d say the racist violence itself is a problem; we certainly agree on that. Where we disagree, I think, is in the suitability of measures such as the CRA to treat the underlying problem. I take it that’s more or less Paul’s view as well, to return to where you began.
I’m happy that Jason has diverged from absolute libertarian principles to accept the justice of the Civil Rights Act. Obviously not all libertarians are willing do so. I’d like to associate myself with these comments of Bruce Bartlett:
“I don’t believe Rand is a racist; I think he is a fool who is suffering from the foolish consistency syndrome that affects all libertarians. They believe that freedom consists of one thing and one thing only–freedom from governmental constraint. Therefore, it is illogical to them that any increase in government power could ever expand freedom. Yet it is clear that African Americans were far from free in 1964 and that the Civil Rights Act greatly expanded their freedom while diminishing that of racists. To defend the rights of racists to discriminate is reprehensible and especially so when it is done by a major party nominee for the U.S. Senate. I believe that Rand should admit that he was wrong as quickly as possible.”
But Bartlett here seems to be accepting that forced association is justified in principle, and that’s the point where I would diverge from him. After all, how far is it from denouncing “defending the rights of racists to discriminate” to denouncing defending the right of Nazis to march in Skokie? Ultimately, isn’t a lot of the core of liberalism (broadly understood) the willingness to defend the rights of sometimes-nasty people? I don’t think this issue should be demagogued.
But a forceful government response was only necessitated by a long history of laws and court decisions that enforced discrimination. Ultimately the CRA only returned rights to people that the government previously took away and I rarely find that solutions to government created problems are best solved by more government.