Rand Paul's Constitution

At WSJ:

A Senate campaign is not a libertarian seminar, a lesson that Kentucky Republican Rand Paul has learned the hard way since his primary victory on Tuesday. He has now renounced the doubts he expressed last week about some parts of the Civil Rights Act of 1964 and has declared the matter closed. But before we move on, it's important to understand why Mr. Paul was wrong even on his own libertarian terms.

In his acceptance remarks on Tuesday night, Mr. Paul sounded mainstream conservative themes on spending, taxes and the reckless expansion of state power. But in his first brush with national scrutiny, the eye doctor let himself be drawn into a debate over the landmark 46-year-old law. Some conservatives want to blame liberal journalists for asking the questions, but Mr. Paul agreed to appear on MSNBC, and such queries were predictable given the liberal stereotype that all conservatives are secretly racists.

Mr. Paul then handed his opponents a sword by saying that while he favored the civil rights statute's ban on public discrimination, he thought it was mistaken to prohibit private bias. Asked if a restaurant should be able to refuse service to blacks, Mr. Paul was at first evasive but eventually replied, "Yes."

Even if Mr. Paul was speaking out of a principled belief in the rights of voluntary association, he was wrong on the Constitutional and historic merits. The Civil Rights Act of 1964—and its companion laws, such as the Voting Rights Act of 1965—were designed to address abuses of state and local government power. The Jim Crow laws that sprang up in the South after Reconstruction and prevailed for nearly a century were not merely the result of voluntary association. Discrimination—public and private—was enforced by police power and often by violence.

In parts of the mid-20th-century South, black men were lynched, fire hoses and vicious dogs were turned on children, and churches were bombed with worshippers inside. By some accounts, two-thirds of the Birmingham, Alabama, police force in the early 1960s belonged to the Ku Klux Klan. State and local government officials simply refused to acknowledge the civil rights of blacks and had no intention of doing so unless outside power was brought to bear.

The federal laws of that era were necessary and legal interventions to remedy the unconstitutional infringement on individual rights by state and local governments. On Thursday Mr. Paul finally acknowledged this point when he told CNN, "I think there was an overriding problem in the South so big that it did require federal intervention."

There's more at the link, although while I mostly agree, I think it's more complicated, and because of that, Rand Paul and libertarians can't win (and thus shouldn't enter into those debates and then cry foul).

Brian Garst wrote a sharp essay on this at RWN this weekend:

The left has twisted this into a story about Rand Paul supporting racism, or possibly being racist himself. This is foolish nonsense, but it comports with the general erosion of serious thinking on the left. Discussions of constitutionality or the necessary trade-off with freedom that is made when people are not allowed to discriminate are verboten, and anyone who brings them up is reflexively labeled a racist.

We're all expected to bow our heads at the very mention of good-feeling government policies like the Civil Rights Act. Certainly we're all pleased to be living in a society in which discrimination is no longer a regular occurrence. But the idea that such is due primarily to government legislation, as opposed to changing social mores, is mistaken. Yes, the CRA did have a legitimate purpose and many constitutionally defensible parts. For instance, it prohibited racism in government run schooling and undid the Jim Crow laws. But that's just it. Those were laws. Laws are government. So when the New York Times says that "it was only government power that ... abolished Jim Crow," they are missing the forest for the trees. It was only the power of government that allowed Jim Crow in the first place. That's not an indictment of libertarianism. It's an indictment of government and proof that it poses a unique danger to our civil rights!

It is no indictment of libertarianism or small government to suggest that government was needed to overturn discriminatory government policy. Quite the opposite. It is affirmation of the views of Rand Paul and many others that it is government policy which most frequently threatens civil rights. It is discrimination of government which is both unconstitutional and cannot be tolerated. Discrimination by private citizens, while disagreeable, is neither. Private citizens are constitutionally allowed to discriminate, though of course other private citizens are free to condemn them for it. It is government which is prohibited, rightly, from discriminating. And it is primarily government discrimination which the Civil Rights Act dealt with.

Still, it's all about nuance, and on a subject like this, it's not going play well in 30-second attack ads.

RELATED: At Fox News, "Rand Paul is Learning What It's Like to Be Me, Says Sarah Palin" (via Memeorandum).