Thursday, May 20, 2010

Rand Paul and Civil Rights: MISERABLE

Hello, Tea Party. Welcome to the General Election
The media continue to repeat the flawed headline that a deep wave of resentment against incumbents exists. I have argued (as have others), that incumbents who are in jeopardy are vulnerable due to ideological reasons -- rather than mere incumbency. Likewise, many of the upstart candidates who have been successful represent an ideological alternative to the incumbent or opposing candidate. Rand Paul's success in Kentucky is a great example of this theory in action.

Paul won the Republican senate primary by catering to the political demands of the Tea Party movement. He captured the Tea Party and other conservative voters by embracing socially and fiscally conservative opinions. Although he portrayed himself as an "outsider," his main substantive message was conservatism.

Paul and Civil Rights
Now that primary has ended, Paul faces broader scrutiny. Some commentators have argued that Democrats actually prefer Paul as the Republican nominee because they believe his ideas will not appeal to a majority of Kentucky voters.

Several political commentators have started to examine some of Paul's policy positions (see here, here, here, here, and here). As the general campaign begins, Paul is particularly vulnerable on civil rights issues. His views on this subject could place him outside of the mainstream in Kentucky.

Gay Rights
During an April 2010 interview with the Louisville Courier-Journal, Paul said that Don't Ask, Don't Tell, the military's anti-gay policy, "worked relatively well." Paul also repeatedly described DADT as a "nonfraternization policy," which is patently false. Paul likened DADT to other military policies, such as rules banning adultery or campaigning in uniform. Paul, however, said that he liked recent "modifications" to the enforcement of DADT, such as the decision not to pursue individuals who are outed by third parties.

Civil Rights Act of 1964
During the same April 2010 interview with the Louisville Courier-Journal, an interviewer asked Paul whether he would have voted for the Civil Rights Act of 1964. In response, Paul said "I like the civil rights act" because it ended discrimination in "public domains." Paul, however, said that he does not agree with telling "private" businesses what they can or cannot do. Paul said that the government should only concern itself with discrimination in settings that are "publicly funded."

Paul's logic would wipe out a substantial portion of the Civil Rights Act of 1964. The statute certainly addresses discrimination by publicly funded entities, but it also prohibits discrimination in private employment and privately owned places of public accommodation (e.g., hotels and restaurants).

One interviewer asked Paul a loaded question -- whether in his view, private businesses could deny service to Dr. Martin Luther King. Paul said that standing up for freedom means accepting people's "abhorrent" views and "behaviors" (translation: yes).

Paul also made the tired assertion (which began in slavery) that racial justice and individual liberty are opposing concepts. Congress, the Supreme Court, the President, and a majority of the American public generally reject this argument.

The Louisville Courier-Journal had harsh words for Paul. The newspaper published an editorial that refused to endorse either Paul or his Republican challenger Trey Grayson on the grounds that both candidates are too extreme. With respect to Paul and civil rights, the editors made the following observation:

The trouble with Dr. Paul is that despite his independent thinking, much of what he stands for is repulsive to people in the mainstream. For instance, he holds an unacceptable view of civil rights, saying that while the federal government can enforce integration of government jobs and facilities, private business people should be able to decide whether they want to serve black people, or gays, or any other minority group. He quickly emphasizes that he personally would not agree with any form of discrimination, but he just doesn't think it should be legislated.
NPR Interview: More Civil Wrongs
Yesterday (the day after his primary victory), Paul spoke on NPR. During the interview, Paul said he opposed "institutional racism." Paul also said that he believes he would have marched with Dr. King, which led the interviewer to ask in disbelief: "You would have marched with Martin Luther King but voted with Barry Goldwater?"

Paul also said that many problems with discrimination could be handled locally. Of course, local and federal laws prohibit discrimination. The most despicable aspect of this comment, however, is that it shows either deep ignorance or callousness regarding the historical context in which Congress enacted the Civil Rights Act of 1964. At that time, many local governments, particularly in the South, were not enforcing civil rights, and many of them were actively facilitating, mandating, and engaging in racial discrimination. Paul's "local" solution argument is extremely dangerous from an historical perspective.

Paul's local argument also contradicts his stance that discrimination is an individual right. "Infringing" this "right" does not become permissble when states do it rather than Congress.

Final Take
As November approaches, Paul will receive more scrutiny. His ability to handle topics beyond the rhetoric of fiscal conservatism will face additional testing. So far, Paul has performed miserably.

For more analysis of this issue, see: A Conservative Defense of Rand Paul: He Is Telling the Truth; He's Not a Racist and Rand Paul on Gay Rights and Persons With Disabilities.

UPDATE: For an interesting argument that explores in greater detail how Paul's position contradicts libertarianism, see: More on Rand Paul, Civil Rights and Balancing Choices over Liberty.


christina said...

I don't think painting Obama's competition as Nazis is going to work what with Obama's sleazy record on human rights, Mr.Hutchinson. Obama goes after everybody who's not exactly like him and the Pauls don't do that. They say 'to each his own'. Their entire philosophy is anti-narcissistic control-freak. No point trying to paint it any other color but freedom.

Darren Lenard Hutchinson said...

Christina: huh?

christina said...

Unless, of course, you want to join the Salahis for a reception at the Taco Bell...

christina said...

(That was sarcasm, Mr.Hutchinson—I'm not a huge Obama supporter because he has a habit of leaning towards socialism.)

Infidel753 said...

Governments regulate private businesses in all sorts of ways in order to prevent grossly-undesirable consequences of unethical behavior. I'd put anti-discrimination laws in the same category.

I've seen libertarian arguments that restaurant health codes are wrong because restaurant owners should be able to set their own standards and the market will drive the really bad ones out of business. It's not hard to imagine what would happen if we actually did things that way. The libertarian opposition to anti-discrimination laws for private businesses is just more of the same mentality.

Cristina seems unable to tell the difference between pointing out the real-world racially-discriminatory consequences of a politician's abstract ideology and calling that politician a Nazi. Curious.

Darren Lenard Hutchinson said...

Hi, Infidel. Thanks for the cogent analysis. I agree. The problem with the libertarian argument on health codes is that it discounts the reality people do not have "perfect information." Even with health codes, we do not know exactly how sanitary restaurants are. Without inspectors reports, things would be worse.

As for antidiscrimination law, the argument is simmilar (but slightly different). The libertarians discount the social costs of allowing discrimination. They also discount the social power of corporations. If Microsoft decided to discriminate on the basis of race and sex, what alternatives could people puruse? Not many. Paul would employ local government (whatever that means with an international business) to persuade the company to stop. His arguments are not very thoughtful. But I do believe he is being honest. Why would he make up such a terrible position?

Mel said...

I'm wondering if you can think of any articles or sources regarding enforcement of anti-discrimination laws. My personal experience working for attorneys who specialized in Title VII(some time ago) is that they never took on racial discrimination cases because they were impossible to win. Do you know of any info that would go against that?

Darren Lenard Hutchinson said...

Mel: Title VII cases are extraordinarily difficult to win. Normally, the plaintiff will not have smoking gun evidence of discrimation. And, while evidence of discriminatory impact can work in narrow situations, normally, that favors persons who work in larger companies. So, yes, these are hard cases to win.

Nonetheless, the legislation has accomplished more than the private sector did alone. In fact, it has incentivized companies to diversify, adopt antidiscrimination policies and other protective measures.

Mel said...

To be clear, I'm not trying to defend Rand. He's repugnant.

However, I do think that we need to complicate the conversation a little. How do we know that certain individual companies didn't change because of the civil rights movement (meaning the people fighting for their rights and changing the culture) rather than the law. Which is to say, are we giving too much credit to the govt and not enough to the people who made it happen.

And if the law was mostly symbolic (as it is virtually unenforceable for large orgs and small orgs are effectively exempted) is the focus on laws actually hampering our ability to deal with continuing discrimination?

Darren Lenard Hutchinson said...

Mel: I have several responses.

First, I reject the separation of law and "people fighting." The substance of law -- particularly the civil rights legislation -- is a direct consequence of people fighting for their rights and changing culture. So, all of these things work together.

Second, I doubt that all of the changes in our society could have happened without legal enactments. Here's just one reason why. The Supreme Court decided Brown in 1954. 10 years later only 1% of black kids went to integrated schools in the South. But a few years later, about 1/2 did. Why? Because the Civil Rights Act of 1964 contained Title VI, which prohibits discrimination by entities receiving federal funding. Title VI would have bankrupted southern schools if they continued to discriminate. After Title VI was enacted, federal courts enhanced their enforcement of the Brown mandate. So, the law had a direct impact on the lives of blacks.

For this reason, I do not agree that the law is "mostly symbolic." Southern bigots opposed legal reform because they know that they could produce concrete changes in society.

This argument, however, does not mean that we have accomplished all that we need to do in the area of discrimination. I believe we need much deeper reforms -- but we still need reforms (including legal change).

christina said...

For someone who spells my name wrong, you sure have lip on you. The term Nazi was in reference to the people who are attacking Rand's position based on straw-man arguments. Localizing government limits the power of racist federal bodies that entrench localized poverty and such. Being ignorant of what's really happening is inexcusable for a person of education and stature.

Mel said...

Thanks for that. You're right. That is not symbolic.

But how lasting was it? I've read several articles recently that school segregation has gotten much worse. And I'm sure I don't have to tell you about the prisons that pass for inner city schools these days.

What I fear is that, by believing govt and the legal system will resolve the problems, we aren't taking enough direct action to push for justice. The govt and legal system aren't going to lead the process. They must be pushed.

Have you seen this lecture on the supreme court and race? Really interesting

Darren Lenard Hutchinson said...

Mel: I believe that we agree on all of these issues. Abolition was good, even though it gave rise to Black Codes and Jim Crow; the 20th Century civil rights activism leading up to the CRA of 1964 was great -- even though it led to retrenchment that we face today. There are deep problems of race, class and gender that formal equality cannot solve. But formal equality is part of the solution. Rand wants to get rid of that piece of the puzzle.

I have two articles on this subject from a constitutional law and historical perspective in the Illinois Law Review (Unexplainable on Grounds Other Than Race....) and the Washington University Law Review (Racial Exhaustion). I am passionate about the concerns you raise. Thanks for posting!

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