Opposing the Civil Rights Act Means Opposing Civil Rights?
Just after winning his Republican primary in May, Rand Paul got himself into a political pickle over his views on property rights and the 1964 Civil Rights Act. Having reluctantly discussed concerns about antidiscrimination laws with the Louisville Courier-Journal and NPR, Paul made his now-notorious appearance on the Rachel Maddow Show, where Maddow grilled him for 15 minutes on whether he opposed government intervention to stop racial discrimination. After saying he favored overturning government-mandated discrimination, Paul finally admitted that he opposes Title II, which forbids private owners from discriminating in their own businesses.
As he told the Courier-Journal: “I don’t like the idea of telling private business owners—I abhor racism; I think it’s a bad business decision to ever exclude anybody from your restaurant; but at the same time, I do believe in private ownership. . . .”
Maddow responded: “I think wanting to allow private businesses to discriminate on the basis of race, because of property rights, is an extreme view.” Within a day Progressives were touting the interview as proof of a deep conflict between libertarian defenses of private property and struggles for racial equality. Meanwhile, compromising libertarians like Brink Lindsey reacted by discovering exceptions to libertarian principles—to make room, again, for federal antidiscrimination laws. The entire debate has played out as an argument over libertarianism and “extremism,” with Progressives and many nominal libertarians both condemning Rand Paul’s simplistic “extremism” about private property and libertarian rights.
I have little interest in defending Paul but it’s strange to treat him like some case study in the dangers of libertarian extremism. Rand Paul is a conservative, not a libertarian—let alone an “extreme” one. He’s said as much, in so many words, in repeated interviews. Now, you could simply say, “He may be no libertarian, but never mind Rand Paul—what about the issue?” Libertarianism opposes government control of private business decisions; taken to extremes, doesn’t that include laws against racist business practices—the civil rights movement’s crowning achievement?
Well, I do have something to say on behalf of “extremism.” Not on behalf of sacrificing the civil rights movement’s achievements to “extreme” stands on antistatist principle. Rather, “extreme” stands on antistatist principle show what the civil rights movement did right, and what it really achieved, without the aid of federal laws.
To be sure, uncompromising libertarianism does mean uncompromised property rights. That includes, if we’re to be “extremists,” a conscientious defense of businesspeople’s right to be awful, to discriminate against anyone for any reason, so long as they do it on their own property without violence. That ain’t Jim Crow as practiced in the South: State laws and Klan terrorism there enforced segregation on unwilling businesses. But Maddow’s correct—Jim Crow was also a social and economic system, and white businessmen colluded even without legal mandates. Woolworth’s lunch counters were segregated by company policy not by law. Rand Paul “abhors” that personally and wouldn’t eat there but thinks government shouldn’t intervene.
Maddow was baffled: “But isn’t being in favor of civil rights, but against the Civil Rights Act like saying you’re against high cholesterol but in favor of fried cheese?” She’s begging the question; you may as well ask how someone could be for patriotism but against the PATRIOT Act. But while mistaken, the question isn’t cheap rhetoric. It’s revealing of Maddow’s premises about law and social progress.
As she insisted later, “Let’s say there’s a town right now. . . . [T]he owner of the bowling alley says, ‘we’re not going to allow black patrons.’ . . . You may think that’s abhorrent and you may think that’s bad business. But unless it’s illegal, there’s nothing to stop that—nothing under your worldview to stop the country from resegregating.”
Unless it’s illegal anything could happen; nobody can stop it; a just social order can only form through social control. Private segregation should stop and only government can stop it; hence, Title II. Paul helpfully suggests you can loudly announce your personal abhorrence of racism, even without laws. Maddow rightly dismisses that as a response: Entrenched white supremacy was indifferent to personal outrage; it demanded concerted, political resistance.
But if libertarianism has anything to teach about politics, it’s that politics goes beyond politicians; social problems demand social solutions. Discriminatory businesses should be free from legal retaliation—not insulated from the social and economic consequences of their bigotry. What consequences? Whatever consequences you want, so long as they’re peaceful—agitation, confrontation, boycotts, strikes, nonviolent protests.
So when Maddow asks, “Should Woolworth’s lunch counters have been allowed to stay segregated?” neither she nor Paul seemed to realize that her attempted coup de grace—invoking the sit-in movement’s student martyrs, facing down beatings to desegregate lunch counters—actually offers a perfect libertarian response to her own question.
Because, actually, Woolworth’s lunch counters weren’t desegregated by Title II. The sit-in movement did that. From the Montgomery Bus Boycott onward, the Freedom Movement had won victories, town by town, building movements, holding racist institutions socially and economically accountable. The sit-ins proved the real-world power of the strategy: In Greensboro, N.C., nonviolent sit-in protests drove Woolworth’s to abandon its whites-only policy by July 1960. The Nashville Student Movement, through three months of sit-ins and boycotts, convinced merchants to open all downtown lunch counters in May the same year. Creative protests and grassroots pressure campaigns across the South changed local cultures and dismantled private segregation without legal backing.
Should lunch counters have been allowed to stay segregated? No—but the question is how to disallow it. Bigoted businesses shouldn’t face threats of legal force for their racism. They should face a force much fiercer and more meaningful—the full force of voluntary social organization and a culture of equality. What’s to stop resegregation in a libertarian society? We are. Using the same social power that was dismantling Jim Crow years before legal desegregation.
I oppose civil rights acts because I support civil rights movements—because the forms of social protest they pioneered proved far more courageous, positive, and effective than the litigious quagmires and pale bureaucratic substitutes governments offer.
Libertarians must change the terms of this rigged debate. The problem isn’t that libertarian views get “extreme,” but that some don’t take free markets far enough, forgetting they mean freedom not just for businesses and stereotypical forms of commerce but for every sort of consensual social experimentation, nonviolent social struggle, and people-powered solidarity free people can practice. The question is not whether to make our views less “extreme,” but how to make our “extremism” more thoughtful. Perhaps libertarianism, the nation, and the world are in dire need of creative extremists.
Comment by Joe Schmoe on 26 August 2010:
Moral of the story: You can’t effect any social change through political means.
Comment by Miko on 31 August 2010:
“To be sure, uncompromising libertarianism does mean uncompromised property rights.”
Ah, but what are these property rights? Under a geoist standard (land initially owned in common, so claims of private property require a ground-rent payment to the community in exchange for granting the privilege of excluding others from the land, with such rent payments distributed equally among those excluded so that payments=distributions for the median citizen), a community may not have an absolute right to forbid discrimination but they could certainly charge the discriminatory business extra rent to be distributed amongst those being discriminated against, based on the size of that group. In a community with a substantial minority population, such a rent payment could easily make discrimination economically impossible on its own (leaving the owner the choices of either changing her policy or seceding from the geocommunity and thus withdrawing all expectations that others would respect her request to consider the land as her private property–in particular, removing all doubt as to whether social forms of protest like sit-ins should be considered trespass).
Comment by Michael Makovi on 1 September 2010:
Fantastic article. I have been noting to people for some time that libertarianism, while constraining the government, empowers people. As Thomas Paine said in Common Sense, “SOME writers have so confounded society with government, as to leave little or no distinction between them; whereas they are not only different, but have different origins.”.
Similarly, Professor Steven Alan Samson notes in “The Covenant Origins of American Polity” (http://works.bepress.com/steven_samson/3/) that “It is this combination of ingredients that lends a peculiarly libertarian quality to American social institutions. The civil government was regarded as a constituent rather than a constitutive element of society.”
I think all this cuts to the essence not only of libertarianism, but of federalism, as well. (I would consider federalism and libertarianism to simply be different aspects of the same larger idea). I especially have in find 16th-century Dutch Calvinist Johannes Althusius, whose work Politica was a landmark in federalist thought. According to his theory (which built on earlier Calvinist thought), man is a symbiote, and all of human life can be described in terms of covenants, compacts, and constitutions – whether explicit or implicit – among mutually consenting parties. Families covenant to form towns; towns covenant to form provinces; provinces covenant to form commonwealths; commonwealths covenant to form empires; commonwealths covenant to form international associations. Althusius’s work even has an entire chapter devoted to how people form private, contractual unions.
What Althusius’s theory does is provide a unified theory for federalism and libertarianism. His book is not only about the civil government, but about life. To be sure, the subject of the civil government occupies the majority of his book, but nevertheless, the book really deals with the contractual and covenantal nature of human society, both governmental and not. (For details and analysis of Althusius, see McCoy and Baker, Fountainhead of Federalism: Heinrich Bullinger and the Covenantal Tradition.)
So fantastic article, and thank you!
Pingback by Charles Johnson: Opposing the Civil Rights Act Means Opposing Civil Rights? on 1 September 2010:
[...] Johnson, Molinari Institute Board of Directors and C4SS Advisory Panel member, asks “Opposing the Civil Rights Act Means Opposing Civil Rights?” in The Freeman, published by the Foundation for Economic [...]
Comment by Michael Wiebe on 2 September 2010:
“You may think that’s abhorrent and you may think that’s bad business. But unless it’s illegal, there’s nothing to stop that”
Evidently Maddow has never read Gene Sharp’s “The Politics of Nonviolent Action.”
Comment by Aster on 4 September 2010:
All well and good, and passionately, stated.
But there’s an elephant in the room, and the elephant is that msny libertarians, including Rand Paul’s father, advocate the elimination of anti-discrimination laws in conjunction with a set of cultural values and premises conducive to racism. Given this, Maddow’s skepticism is appropriate, if not to libertarianism as such, but to actually existing libertarians.
I will withdraw my support my antidiscrimination laws when and if libertarians give me reason to believe that the social hegemony of their substantive culture would provide a world in which antidiscrimination laws were not necessary. IRL the end of antidiscrimation laws would be taken by social conservatives as a signal that racism is now acceptable. Far too many racists have come to invoke libertarianism on this issue, and they haven’t been strongly answered by libertarianism as a society, which is a less open space than the general society that surrounds it.
Comment by Michael Parish on 5 September 2010:
Aster I’d like you to name certain prominent racists who use libertarian rhetoric in regars to this issue.
Comment by Deejay on 12 September 2010:
The issue I have with libertarianism is the hypocrisy and its lack of social responsibility. A true libertarian does not want any government intervention except for the defense of this nation and enforcement of laws. People are free to live how they see fit. Businesses can and should operate however they want. Well, the United States was much more libertarian in the past. For example, child labor was common and there was not a federal law against it. Not until 1938, when the “Fair Labor Standards Act” passed, was a minimum age set for work that may be hazardous or detrimental to the well being pf persons under the age of sixteen (29 U.S.C. § 203(l) and 29 U.S.C. § 212). Thus, a libertarian must and would have to be against child labor laws and many other laws which protect human beings from the practices of others. Perhaps this is a generalization. I am sure there are many variations of the libertarian philosophy.
Comment by John on 12 September 2010:
Deejay.
Yes, libertarians are against child labor laws and minimum wage laws. Because they understand that what changed those conditions was not the government making laws about it, but the free market being able to develop. If you want to know how this works, there is plenty of material on the web, just search “child labor” on this page.
Comment by Aster on 13 September 2010:
Michael Parish/Quagmire-
Ron Paul, the libertarian movement’s most prominent politician, is a pretty obvious example; readers need only google “Ron Paul letters” to read of that controversy and the extremely racist material published by Paul’s personal newsletter. Then there’s Lew Rockwell.com , the libertarian movement’s most popular website, which regularly publishes neo-Confederate writers such as Joseph Sobran and Thomas diLorenzo, both also published in the Holocaust denial journal Institute for Historical Review. Lew Rockwell also regularly hosts the European reactionary “anarcho-monarchist” Hans Hermann Hoppe and the Christian reconstruction Gary North. The latter advocates death by stoning for homosexuals, adulterers, and disobedient children. The first is the author of this quote:
“There can be no tolerance toward democrats and communists in a libertarian social order. They will have to be physically separated and expelled from society. Likewise, in a covenant founded for the purpose of protecting family and kin, there can be no tolerance toward those habitually promoting lifestyles incompatible with this goal. They – the advocates of alternative, non-family and kin-centred lifestyles such as, for instance, individual hedonism, parasitism, nature-environment worship, homosexuality, or communism – will have to be physically removed from society, too, if one is to maintain a libertarian order.”
For the benefit of our readers, Michael Parish, alias “Quagmire”, keeps several embryonic web pages whose links include Alain De Benoist, American New Right, American Third Position, Aryan Futurism(!), Folk And Faith, Julius Evola, Taki’s Magazine, The Occidental Quarterly, and Tomislav Sunic. He’s very recently removed his link list from his primary blog, “A Beautiful Mind”, and several others, but it’s still available here:
http://misanthrope-anarch.blogspot.com/
It’s quite possible, of course, that he’ll eliminate these links as well upon reading this, since the list is more or less a rogues gallery of the intellectually pretentious wing of neo-fascism and white nationalism. He describes himself as “an elitist, an aristocrat and hopeless romantic standing against the carnage of the Enlightenment…like a younger, less intelligient [sic] D.H. Lawrence.” This ought to speak for itself.
Mr. Parish is, in short, a perfect example of the reason we still need antidiscrimination laws.
If a libertarian political order was capable of combatting bigotry it would show this in the present in the humanistic microcosm of its own existence. As an ex-libertarian, I can assure progressive readers that this is anything but the case. There are certainly non-racist and anti-racist libertarians, but they have proven completely inefficacious in the face of a politics whose hands are tied in the face of social and economic injustice.
Comment by Brittney on 14 September 2010:
Libertarianism isn’t equivalent to racism simply because some racists subscribe to it (or at least use convenient parts of it to further their racial agendas). So I think that’s all beside the point, to say nothing of the obvious fact that forcibly expelling certain groups from the country violates all kinds of libertarian principles.
Also, no matter how big a racist Mr. Parish might be, he doesn’t prove we need antidiscrimination laws. Such a claim relies on the far-from-proven premise that antidiscrimination laws are the only thing stopping people like him from controlling the country.
As for whether a world under a libertarian political order can be, in general, diverse yet tolerant–well, that is a question we can consider and debate. But we can’t do it with this ad hominem guilt-by-association nonsense.
Comment by Cry Aboutit on 14 September 2010:
I’m afraid of stepping in it here, but I would like to toss out two quick points:
1-the reason it was so dangerous and so difficult to challenge segregation in the south was because they had the implicit (& sometimes explicit) aid of a powerful legal ally. You know, state and local government, who at best would turn a blind eye to appalling acts of brutality, and just as often would persecute peaceful opposition. From what I’ve read about Libertarianism, it seems that they see this kind of corruption as inevitable when government control is not strictly limited. I agree with that point. So while the Civil Rights Act was a triumph of social justice, the precedent it created has bred other overreaching laws that most progressives would be ashamed to be associated with. The Patriot Act is cut from the same cloth–that for the greater good, some individuals should undergo a higher level of scrutiny and should lose some amount of their personal liberty. Emotionally, I’m on board. Some people are bad and they need to be held in check. But philosophically, I have a hard time taking that power away from peaceful movements and placing it in the hands of an entity that can legally use force to pursue its agenda.
2-It is a real kick in the teeth for the brave groups of people who risked their lives to resist the racist status quo in the south to have the government come in and make a law over it. All that really accomplishes is taking away their hard-won social victory and turning it into a feather in the cap of a vote-hungry politician, a person who would have happily ignored the problem without the succulent prize of office dangling before his eyes.
Okay one more. I think it is pointless and naive to point at a particular political movement and say “there are racists in that party.” Bad people go where the power is, so they can increase their power and inflict more damage to the world. It’s part of what makes them bad people. Any group that wishes to harness the power of the State rather than reduce it will be rotten with bigots of every flavor. Some are just more clever with their disguises.
Comment by Cry Aboutit on 14 September 2010:
That said, I don’t want or need your support on this Mr. Parish. Aryan Futurism? What is wrong with you?!
Pingback by A Force Much Fiercer « Instead of a Blog on 31 August 2011:
[...] is this any more likely to be the case than the idea that the Civil Rights Act is in large part the reason that many of the constitutive practices of [...]
Comment by Hector on 14 November 2011:
Can someone explain me what is happening the photograph please?
thanks
Pingback by What about Ron Paul? | Bleeding Heart Libertarians on 21 December 2011:
[...] full elimination of state-secured privilege, the provision of remedies for past injustice, and a continued program of non-violent protest could have undermined entrenched white dominance in the South in the absence of the state action a [...]