The Dangerous Flaw of the Civil Rights Act
by Robert Tracinski
First, Paul needs to be defended because he got into trouble for actually being honest about his views rather than expedient. Isn't this precisely what we've asked for from our political leaders? There are a lot of pragmatists on the right who are now arguing that Paul should have pushed off the question by just saying that he approved of the Civil Rights Act—in effect, that he should have smiled and lied and glossed over a politically incorrect truth. But isn't that approach exactly what got us into the trouble we're in now?
More important, we need to defend Paul because he is being made into a victim of the White Guilt racket that the left has been running ever since 1964. As Shelby Steele has explained at length, White Guilt is a system in which all whites are viewed as potential racists, who have to do something to prove that they are not guilty of racism. The easiest way to do this—in fact, the only way, since the practitioners of the White Guilt racket control the game—is to embrace the welfare state policies of the left. If you challenge the welfare state, then the press is going to hound you into saying something that it can construe or misconstrue as racist.
That's what they're doing to Paul, and it's high time those of us on the right stopped walking around like whipped dogs and preemptively apologizing for ourselves. It's time for us to go on the offensive and to face down this racism smear whenever it's dragged out. Maybe it's because I'm from the Midwest, where all of the parks are named after Lincoln and Grant and where the people I grew up with had the clear conscience of having been on the right side of the civil rights movement all the way back to 1861. But I have never accepted that I should have anything to explain or apologize for on the issue of race. You shouldn't accept it, either.
That's especially true because Rand Paul is right on the substance of this issue. The Politico article that broke this story into the national media describes Paul as "evasive" or equivocal about his views on the Civil Rights Act. But it's everyone else who is fudging and equivocating. Paul's position is the one that draws a bright line of clarity: the crucial distinction between private action and government force. Paul was clear that he supports the elimination of government-enforced racism and segregation—the whole structure of the South's old Jim Crow laws. His reservation was that the Civil Rights Act should not have dictated what private individuals can do on their own property.
As he put it, "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 [what they can do]." And elsewhere: "the hard part about believing in freedom is—if you believe in the First Amendment, for example—…most good defenders of the First Amendment will believe in abhorrent groups standing up and saying awful things.... It's the same way with other behaviors. In a free society, we will tolerate boorish people, who have abhorrent behavior."
The argument against this is that racism is so unique an evil that the state just has to intervene to reform the moral character of all of those unenlightened troglodytes out in the hinterland. But this ignores the real history of how racism was conquered in America. It was not government control over the actions of private individuals that broke racism. What broke it was a moral reform movement that relied on something far more powerful than any law: the power of persuasion. Martin Luther King had his faults on other issues—he was at least a "moderate" socialist in his economics—but he got one big thing right: that the key to his campaign against racism was non-violence. He grasped that legitimate moral authority was a force more powerful than any gun.
The actual history of the past sixty years is the story of an enormous cultural transformation in which racism has—thank goodness—become an absolute social taboo. When was the last time you heard of a Civil Rights Act enforcement against a business for excluding blacks? Do you think anyone would even attempt such an exclusive policy? Project what would happen: there would be an immediate national campaign led by politicians and celebrities of all stripes. There would be marches and picketing, boycotts and ostracism. (And it should go without saying that folks like me would support such a boycott.) The shopkeeper or restaurant owner or country club board that tried to enforce a segregated policy would find their lease canceled, their customers disappearing, their advertising refused, and so on. They would be out of business within a week.
Look what happened to Don Imus, for crying out loud. An offhand comment that was insufficiently respectful of black athletes got his radio show summarily booted off the air. Our culture's rejection of racism—or at least of racism by whites against blacks—is enforced by a system of social ostracism more pervasive and severe than anything the government could ever come up with. It has, in fact, degenerated into a priggish code of social conformity, in which one is only allowed to express pre-packaged, pre-approved opinions on anything remotely connected to racial politics—as Rand Paul has just discovered.
The big lesson is: morality is more powerful than a gun. Persuasion is more powerful than coercion.
In fact, the context for the Civil Rights Act was the existence of a set of laws enacted to enforce segregation. But the very need for the Jim Crow laws—which were mostly written in the early 20th century—was an admission that the social code of racism was already in danger and beginning to slip, that the racist establishment of the old South could not permit people to begin breaking down those barriers and had to actively outlaw racial integration.
In other words, the government dictating what private individuals could do in their own business establishments was the problem that needed to be solved. The Civil Rights Act did demolish the whole legal structure of segregation, and for that reason I would have voted for it—had I, er, been alive at the time—despite its flaws. Rand Paul has since said as much, too. But he still won't be forgiven because his real moral crime is that he did not agree to paper over the act's flaws.
Not content to wipe out the Jim Crow laws, the Civil Rights Act fought racism with the basic authoritarian premise of the left: that which is not permitted is forbidden—and that which is not forbidden is mandatory. In the left's world view, there is no legitimate room for individual choice, judgment, and persuasion. Everything is decided centrally in Washington, and then we all have to fall in line. Since racism is an evil to be opposed, then Congress has to dictate that racial harmony and integration be imposed on our private actions by government fiat.
But when you start using force to impose morality, you always hit more than your intended target. In the case of the Civil Rights Act, those provisions spawned an abusive civil rights enforcement regime in which businesses could face the accusation of "discrimination" even if they committed no overt, objectively definable act, but merely if the racial composition of their workforce doesn't fit some arbitrary mathematical formula. This spawned the Jesse Jackson-Al Sharpton shakedown culture—using trumped up accusations of racism to blackmail corporations into hiring leftist "racial sensitivity" consultants. And that's not to mention the "redlining" hysteria of the 1990s, in which banks were forced to demonstrate that they weren't racist by lowering their mortgage lending standards in slum neighborhoods—a precursor to the whole "affordable housing" bubble.
By saying that the government could reach into private establishments and judge their motives and dictate their actions, the Civil Rights Act endowed government with an enormous arbitrary power and subjected every private citizen to the burden of proving a negative: proving that he is not racist.
Rand Paul's analogy to the First Amendment is perfect. Remember the old saying about how "I may disagree with everything you say, but I would fight to the death for your right to say it?" Where is that spirit today, on any issue? We are racing toward the kind of petty authoritarianism where if anyone does anything you don't like—up to and including putting too much salt on their food—you can come in with a club and beat them over the head. Where is the morality in that?
The left can't hide any more behind the idea that they only want to control actions and not ideas—because they have long since signed on to proposals to control ideas. "Hate speech" laws are their answer to Rand Paul's argument about the First Amendment. If he says that people have a right to do offensive things, just as they have a right to say offensive things—the left replies: but we don't think people have a right to say anything that offends us. They have openly rejected persuasion in favor of coercion—with no limits.
Hence the absurdity of the high moral dudgeon against Rand Paul. Morality? As another Rand said—in this case, Ayn Rand—morality ends where a gun begins. Advocates of the unlimited use of force don't get to claim the cover of morality. Unrestrained government is by its very nature immoral government. It is the use of force unrestrained by principles. And that's an immoral act from which we have far more to fear than the last feeble vestiges of racism.
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