June 2010: Discrimination and Liberty

In a conversation last month with the Louisville Courier editorial board, Dr. Rand Paul, now the Kentucky Republican nominee  for Senate, was asked if he would have voted for the 1964 Civil Rights Act. Paul's reply articulated a fairly typical libertarian and conservative view:

I like the Civil Rights Act, in the sense that it ended discrimination in all public domains, and I'm all in favor of that. I don't like the idea of telling private business owners… I abhor racism. I think it's a terrible business decision to exclude anybody from your restaurant. But, at the same time, I do believe in private ownership. But I think there should be absolutely no discrimination in anything that gets any public funding.

Later, TV pundit Rachel Maddow pressured to Paul to clarify his views on her MSNBC show, asking, "Do you think that a private business has a right to say that 'We don't serve black people?'" Paul again stressed his strong opposition to discrimination while noting that anti-discrimination laws often conflict with important liberties. "Should we limit speech from people we find abhorrent?" Paul asked. "Should we limit racists from speaking?" He continued:

I don't want to be associated with those people, but I also don't want to limit their speech in any way in the sense that we tolerate boorish and uncivilized behavior because that's one of the things that freedom requires is that we allow people to be boorish and uncivilized, but that doesn't mean we approve of it.

Maddow pressed further, asking, "How about desegregating lunch counters?" "Does the owner of the restaurant own his restaurant? Or does the government own his restaurant?" Paul asked in turn. "These are important philosophical debates but not a very practical discussion…"

Practical or not, these important philosophical debates are the topic of this month's Cato Unbound. Was Rand Paul right? Did Title II of the 1964 Civil Rights Act, which deals with private rather than public discrimination, unjustifiably restrict rights to private property and free association? Or are these restrictions justifiable in light of  hundreds of years of slavery and oppressive legal racial discrimination?

In the discussion following Dr. Paul's seemingly ill-fated tangle with Maddow it emerged that even libertarians, who might have been expected to share Paul's view, disagree about these important questions. So this month Cato Unbound has brought together a panel of libertarians to hash it out. We'll talk about the Civil Rights Act, but we'll focus on the general problem of realizing ideals of equal liberty when legal and social inequality have long been the historical norm.

Starting us off is a lead essay from David E. Bernstein, author of Only One Place of Redress: African-Americans, Labor Regulations, and the Courts from Reconstruction to the New Deal. Then we'll have replies from Sheldon Richman, editor of The Freeman; Cato Unbound's own Jason Kuznicki; and Harvard economist Jeffrey Miron, author of Libertarianism, from A to Z.

As always, Cato Unbound readers are encouraged to take up our themes, and enter into the conversation on their own websites and blogs, or on other venues. Trackbacks are enabled. Cato Unbound will search the web for the best commentary on our monthly topic, and, with permission, may publish it alongside our invited contributors. We also welcome your letters. (Send them to wwilkinson at cato.org.)

Note on this month's banner image

The photograph depicts Joseph McNeil, Franklin McCain, Billy Smith, and Clarence Henderson at a whites-only lunch counter, on February 2, 1960, during the second day of peaceful protest at a Woolworth's in Greensboro, North Carolina.