    Republican senate nominee Rand Paul has consistently opposed civil rights laws that prohibit individuals and private businesses from discriminating on the basis of race. Paul takes the position that these laws interfere with the "liberty" and "property" rights of persons and institutions that choose to discriminate. This is not a new argument.
    The Fair Housing Act which was adopted in 1968 is a federal law that prohibits people from discriminating on the basis of race, gender, religion, and other factors when they sell a home or rent an apartment to another person.   In 2002 Rand Paul wrote a letter to the editor of his local newspaper, the Bowling Green Daily News, contending that the Fair Housing Act is inconsistent with a "free society." His letter states in part:
A recent Daily News editorial supported the Federal Fair Housing Act. At first glance, who could object to preventing discrimination in housing? Most citizens would agree that it is wrong to deny taxpayer-financed, âpublicâ housing to anyone based on the color of their skin or the number of children in the household.But the Daily News ignores, as does the Fair Housing Act, the distinction between private and public property. Should it be prohibited for public, taxpayer-financed institutions such as schools to reject someone based on an individualâs beliefs or attributes? Most certainly. Should it be prohibited for private entities such as a church, bed and breakfast or retirement neighborhood that doesnât want noisy children? Absolutely not.
Decisions concerning private property and associations should in a free society be unhindered. As a consequence, some associations will discriminate.
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A free society will abide unofficial, private discrimination â even when that means allowing hate-filled groups to exclude people based on the color of their skin.
    Paul's argument has been used before. Before the Civil War slavery was a legally protected form of property. This was how slavery was treated in the courts – even the United States Supreme Court. In the notorious Dred Scott case Chief Justice Roger Taney struck down the Missouri Compromise that had prohibited slavery from the northern territories of the United States on the ground that this prohibition violated the constitutional rights of slaveholders to bring their property into every corner of the territory held by the United States. He reasoned that because the Constitution specifically acknowledged slavery in several respects (the three-fifths clause, the fugitive slave clause, the slave trade clause), the property interest in slaves is a constitutionally protected right that Congress is powerless to interfere with.  Slaveholders asserted that it was a violation of their "liberty" for Congress to have adopted the Missouri Compromise or for the northern states to refuse to enforce the Fugitive Slave Act – and the Supreme Court agreed with the slaveholders on both counts.
    Abraham Lincoln persistently and eloquently addressed this argument by white southerners claiming that they had a constitutional right to own slaves. At Peoria in 1854, Lincoln rebutted Stephen Douglas' assertion that the anti-slavery position was inconsistent with the principle of "self-government":
The doctrine of self government is right â absolutely and eternally right â but it has no just application, as here attempted. Or perhaps I should rather say that whether it has such just application depends upon whether a negro is not or is a man. If he is not a man, why in that case, he who is a man may, as a matter of self-government, do just as he pleases with him. But if the negro is a man, is it not to that extent, a total destruction of self-government, to say that he too shall not govern himself? When the white man governs himself that is self-government; but when he governs himself, and also governs another man, that is more than self-government—that is despotism. If the negro is a man, why then my ancient faith teaches me that âall men are created equal;â and that there can be no moral right in connection with one man's making a slave of another.
    In 1864 at the Sanitary Fair in Baltimore Lincoln defined liberty. As was his frequent custom, he made his his point allegorically, telling a fable that memorably illustrates the difference between the proslavery and antislavery conceptions of "liberty":
The world has never had a good definition of the word liberty, and the American people, just now, are much in want of one. We all declare for liberty; but in using the same word we do not all mean the same thing. With some the word liberty may mean for each man to do as he pleases with himself, and the product of his labor; while with others the same word may mean for some men to do as they please with other men, and the product of other men's labor. Here are two, not only different, but incompatable things, called by the same name â liberty . And it follows that each of the things is, by the respective parties, called by two different and incompatable names â liberty and tyranny.The shepherd drives the wolf from the sheep's throat, for which the sheep thanks the shepherd as a liberator, while the wolf denounces him for the same act as the destroyer of liberty, especially as the sheep was a black one. Plainly the sheep and the wolf are not agreed upon a definition of the word liberty; and precisely the same difference prevails to-day among us human creatures, even in the North, and all professing to love liberty. Hence we behold the processes by which thousands are daily passing from under the yoke of bondage, hailed by some as the advance of liberty, and bewailed by others as the destruction of all liberty. Recently, as it seems, the people of Maryland have been doing something to define liberty [by enacting a law abolishing slavery within the state]; and thanks to them that, in what they have done, the wolfâs dictionary, has been repudiated.
    Finally, in his Second Inaugural, Lincoln invoked biblical imagery to drive home the point that all Americans – north and south – bore responsibility for the institution of slavery, and that all would have to atone for its acceptance within our society:
One eighth of the whole population were colored slaves, not distributed generally over the Union, but localized in the Southern part of it. These slaves constituted a peculiar and powerful interest. All knew that this interest was, somehow, the cause of the war. To strengthen, perpetuate, and extend this interest was the object for which the insurgents would rend the Union, even by war; while the government claimed no right to do more than to restrict the territorial enlargement of it. Neither party expected for the war, the magnitude, or the duration, which it has already attained. Neither anticipated that the cause of the conflict might cease with, or even before, the conflict itself should cease. Each looked for an easier triumph, and a result less fundamental and astounding. Both read the same Bible, and pray to the same God; and each invokes His aid against the other. It may seem strange that any men should dare to ask a just God's assistance in wringing their bread from the sweat of other men's faces; but let us judge not that we be not judged. The prayers of both could not be answered; that of neither has been answered fully. The Almighty has His own purposes. âWoe unto the world because of offences! for it must needs be that offences come; but woe to that man by whom the offence cometh!â If we shall suppose that American Slavery is one of those offences which, in the providence of God, must needs come, but which, having continued through His appointed time, He now wills to remove, and that He gives to both North and South, this terrible war, as the woe due to those by whom the offence came, shall we discern therein any departure from those divine attributes which the believers in a Living God always ascribe to Him?
    "Judge not, lest we be judged," is not an excuse allowing us to abdicate our duty to eradicate evil practices. It is instead a recognition that we are all guilty when we allow oppression to go unopposed and unpunished. The Fair Housing Act is not inconsistent with the principles of a free society. It is instead a hallmark of a just society.
    In reviewing libertarian positions such as those advocated by Rand Paul, it is well to remember that oppressers and exploiters – from abusive husbands to brutal dictators – always claim that those who object to their actions are interfering with their "liberty."  The refutation to their claim lies in the distinction between "negative liberty" and "positive liberty," which will be discussed in the next posting on this subject.
{ 4 comments }
Wow, that's quite a jump Professor. Advocating property rights does not equate to advocating owning human beings as property. This Rand fellow's free-thinking ways really get under your skin, don't they?
But the race card is effective in almost any argument. For instance, since you seem to advocate the right to privacy as a basis for legalized abortion, I must contend that you are also advocating the right to murder black children as long as you first legally adopt them and commit the act within your own home. What a racist.
larry,
I know that Dr. Paul does not advocate a return to slavery. But he is willing to tolerate private acts of racial discrimination in the defense of property rights. It is he, not his political opponent or critics, who brought up the subject of race. He opposes the application of the Public Accommodations Act, the Fair Housing Act, and the Americans with Disabilities Act to individuals and private corporations. At one point in one of his interviews he takes the position that the application of civil rights laws to individuals and private corporations in effect turns private property into government property. Dr. Paul is no racist; he simply does not appear to accept the fundamental constitutional principle distinguishing between a valid regulation of private property and an invalid taking of private property.
We may also infer from his reaction to the BP oil spill that he is unsympathetic to the environmental laws; again, not because he loves pollution or prefers the oil companies to residents of the Gulf Coast, but because he is devoted to small government. I wonder what his opinion is regarding mine safety laws?
Lincoln’s allegory is powerful, but you misapply it. It is the ones who advocate the regulations of private individuals in the Civil Rights Act, the FHA, and ADA who are the wolves. It is they who that are compelling one man into the service of another against his will. It the advocates of these laws who advocate the destruction of a man’s right of self-government in favor of another’s. While the acts of those who discriminate based on race or disability may be morally wrong, they are not denying any person any right. I have no right to compel a person to serve me food, sell me their property, or invite me onto their land. Why should their decision to serve one person destroy their right to associate with whom they choose and subjugate their rights to the will of others?
Paul is an idealist or even ideologue, but the questions he raises are valid and have as much a place in the national debate as the knee-jerk demonization of corporations that has become so prevalent of late. In my recollection, brutal dictators are most likely to claim they are providing state-sponsored liberty ("positive liberty"?), and Paul's idealism is a needed counterbalance to that.
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