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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.