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Rand Paul Opposes Civil Rights Laws Prohibiting Acts of Racial Discrimination by Private Businesses

by Professor Will Huhn on May 20, 2010

in Civil Rights,Constitutional Law,Wilson Huhn

     In a number of recent interviews Kentucky Republican senatorial candidate Rand Paul has made it clear that he is opposed to laws that prohibit private businesses from discriminating on the basis of race.  He believes that individuals and privately-owned businesses should have a legal right to discriminate.

     From his interview on the Rachel Maddow Show last night it appears that Doctor Rand Paul, who won the Republican nomination for U.S. Senate from Kentucky, would not have voted in favor of Title II and Title VII of the Civil Rights Act of 1964.  Maddow initially played clips from Paul's interviews on "All Things Considered" and the editorial board of the Louisville Courier-Journal in which Paul indicated that he supports only those portions of the Civil Rights law that regulate the government and private entities that receive public funding.  Maddow gave Paul many opportunities to say that he would support the provisions of the law regulating private businesses, but Paul insisted that he would support only those portions of the law that abolish "institutional racism," by which he means actions by the government.

     Paul claims that the principal purpose of the Civil Rights Act of 1964 was to eradicate official acts of racism; that it was primarily directed at government agencies, not private businesses.  In this he is mistaken.  Dr. Paul needs to reread this period of American history, and he would be reminded that the Supreme Court had struck down state-sponsored discrimination a decade earlier in Brown v. Board of Education (1954); governmental discrimation was already unlawful in 1964.  Dr. Paul would recall that it was private acts racism that fueled the freedom rides and lunch counter protests in the early 1960s.  Dr. Paul should listen to John F. Kennedy's inspiring speech of June 11, 1963, in which the President denounced employment discrimination and discrimination by businesses open to the public and in which he announced that he would introduce the civil rights law in Congress.  (This speech may be downloaded from this page maintained by the J.F.K. Library).  Dr. Paul would then remember that it was discrimination by private businesses – stores, hotels, restaurants, banks, theaters, and private bus lines – that was the principal focus of the Civil Rights Act of 1964.  

     Title II of the 1964 Civil Rights Act requires businesses that are open to the public to serve blacks on the same basis as whites, without discrimination or segregation, and Title VII prohibits acts of employment discrimination in all businesses, even those that are not open to the public.  Title II and Title VII are essential building blocks of our society.  These laws prohibit not only discrimination on the basis of race, but also discrimination on the basis of religion, gender, and disability.  They guarantee equal treatment and equal opportunity for all of us.  Why would we choose to undermine such a significant foundation of American life?

     Dr. Paul is not a racist.  He is a libertarian.  He is opposed to civil rights laws not because he believes in white supremacy but because he is dedicated to the principle of small government.  For example, on  a page of his website discussing campaign finance reform he states:

The only answer to that problem [lobbyists and corruption] is for Congress to reduce severely the size and scope of the federal government, so that the market is allowed to operate according to the free forces of a laissez-faire economy.

     Paul explicitly embraces the ideal of "laissez faire" economics.  In line with this philosophy he believes that the owner of a private business should have a legal right to discriminate on the basis of race.

     The Supreme Court, in an opinion authored by Justice Tom Clark, unanimously voted to uphold the constitutionality of Title II in 1964 in the case of Heart of Atlanta Motel v. United States.  Most of Justice Clark's opinion discusses Congress' power to enact this law under the Commerce Clause, but it also addresses the motel's contention that, as a private business, it had a constitutional right to deny service to customers on the basis of race.   The opinion states:

Nor does the Act deprive appellant of liberty or property under the Fifth Amendment. The commerce power invoked here by the Congress is a specific and plenary one authorized by the Constitution itself. The only questions are: (1) whether Congress had a rational basis for finding that racial discrimination by motels affected commerce, and (2) if it had such a basis, whether the means it selected to eliminate that evil are reasonable and appropriate.  If they are, appellant has no "right" to select its guests as it sees fit, free from governmental regulation.

     Justice Clark noted that 32 states had enacted similar laws, and that the Supreme Court had repeatedly upheld those laws.  Clark also cited language in the Civil Rights Cases (1883) indicating that nondiscrimination was the rule at common law.  Finally, he found that the motel's claims that the civil rights law represents a "taking" of private property and that it imposes a burden of "involuntary servitude" upon the motel were without merit.

     Dr. Paul's views are not in the mainstream of American political thought.  No-one who believes that private businesses should have the right to discriminate on the basis of race should hold public office in this country, whatever his or her justification for taking that position.  Our leaders must be fully committed to enacting and enforcing the civil rights laws.


Jvwtt May 20, 2010 at 9:57 am

I thought Rand Paul was very articulate and passionate, I am a libertarian, and a mix of all races. I think the market place would figure this specific issue out, plain and simple, would YOU support businesses that were racist? Yes or no, the truth is it isn't good business to be a moron aka racist. True or false, its likely that this business will be ignored, and that it may become a haven for racists (and be protested by YOU((loving smart people)) or go bankrupt. Point is, if we WERE (we are not) a mature society because we were grown up (free thinking questioning individuals instead of collectivist followers) we would just laugh at racists and everyone else who tries to create these divisions between human beings for private reasons and be on with our day. This is still a sad day in America, because there are so many people who describe and divide human beings by color, how childish. If we MUST have division for superficial social, business, and political reasons, they should be by location and not by color. Nobody who thinks** would ever describe themselves as a color…

I even find that deplorable though, i am a third dimension earth (human) being, that is my location, and its all of yours as well.


Chris Holt May 20, 2010 at 8:11 pm

If the owner of a restaurant hates you, for whatever reason, don’t you want to know? I wouldn’t want him making MY food. If he posted a sign saying, “This kind of person not served here.” Then we would ALL know the truth about this man. He would be exposed. We could all shun his business, picket, spread the word and shut him down. We, the people, could, not the Federal Government. The government must not be allowed to control us. We must control the government. Just because you forbid him to post the sign, doesn't mean he hates that person any less. You can’t outlaw hate, you can only hide it. We should expose it.

Dave May 21, 2010 at 1:13 am

You have never called for the resignation of Senator Byrd of West Virginia. He is a known klansman. The left can forgive just about anything as long as the politician votes their way.

Setting all that aside for a moment. Byrd was not the only one to vote against the civil rights legislation. If you lose a vote do you have to give up your seat? Or just the 'important' ones? Who determines which ones are important?

If the SCOTUS splits on a vote, are those jurists unfit? Forget about publishing the crybaby dissent, and clean out your desk!

I prefer a system where people are allowed, and even encouraged, to think for themselves.

larry d. May 23, 2010 at 8:15 am

Senator Byrd has come to appreciate clean, well-spoken Negroes almost as much as Harry Reid and Joe Biden do. So The Professor is cool with him.

Professor Will Huhn May 23, 2010 at 8:25 am

Jvwtt and Chris,
You are both very idealistic about this, as is Rand. You believe that hatred and discrimination of all forms would quickly disappear if only human beings were mature enough to think about these matters rationally – if we at all times had the capability to determine, in a fair and objective manner, whether it is justified to treat groups of people differently. I agree, but that is a big IF; sadly, we all have superstitious beliefs and irrational fears. As a society how we treat others is more often guided by cultural tradition rather than realistic assessments of human potential. Look at how difficult it is for gays and lesbians to win the basic right to have their relationships validated and for their unions to be considered to be a "family" within the eyes of the law. Discrimination in all its forms must be addressed by law, or we will capitulate to those hateful cultural traditions such as racial segregation.
If Byrd were still a member of the KKK or the Communist Party or a terrorist cell you can bet that I would call for his resignation. I think we can forgive people who voted against the Civil Rights Act in 1964 so long as they now accept that it was the right thing to do.
I can understand how a rational person might have supported the institution of slavery even as late as the early 1860s. They had grown up with the institution and were inculcated to believe that it was just and right. It was necessary for the institution to be destroyed "root and branch" as Sojourner Truth said, but we can forgive its supporters for believing what they did. But we would not be tolerant of anyone today who would be sympathetic towards slavery. We would not throw him in jail nor could we remove him from the Supreme Court; the First Amendment and the lifetime tenure for federal judges would protect such a fool. But I would certainly call for his resignation.
George Wallace and Lester Maddox were products of their society, and they did not transcend the ideas of racial supremacy that they had been taught as children. That does not mean that it would be all right for a Governor to express those views today. In 2010 their beliefs would be unacceptable in any public officer, and there would justifiably be calls for their resignation from office.
Thank you for reading. I will start a series on libertarianism today.

larry d. May 23, 2010 at 12:00 pm

I think I get it now. It's kind of like the Confederate flag, I guess. It used to mean the wrong side in the fight over slavery, but now it simply means heritage and tradition to some Southerners. "Democratic Party" is another interesting concept that has changed over time. Forgiveness and understanding all around.

But the Rand Paul issue seems separate. As The Professor suggests, it's more an issue of constitutional interpretation than racism, so to claim he has no business serving in public office remains baffling.

Steve January 6, 2011 at 12:08 am

Will: Don't you realize that a politician who believes and would vote to enforce laws that prohibit private property owners from discriminating, is likewise a politician who is voting to enforce laws that violate the principles of FREEDOM OF ASSOCIATION (or to not associate) and PRIVATE PROPERTY? If business owner "X" owns the property, shouldn't he get to decide what to do with it, no matter if his reasoning is viewed as despicable by even a majority of people? Doesn't he have the right to associate or not associate with whomever he wants, as long as he owns the property? And just as important, shouldn't we use persuasion, instead of the heavy hand of force, to change this person's mind? Isn't freedom of choice in matters of association and property rights (i.e., freedom from government coercion and punishment) as important to you as private discrimination?

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