Rand Paul's brand of libertarianism is a pretext for a certain aggressive, rights-recognizing, claim-resolving, force-using, muscular "minimal" state, the way libertarians like to say.
There's something wrong with the variety of liberal thought called libertarianism when it shows up in forms like Rand Paul's turn as an apologist for "Whites Only" signs on private businesses and "Accidents happen" in the Gulf of Mexico. And it's something we've seen before. Below the fold, when I say "Rand Paul" you can insert your favorite libertarian apologist as you see fit. I prefer to see Rand Paul defeated in the general election in Kentucky, but this post is about more than that.
Let's think about 3 things:
- What does Rand Paul mean when he condemns "institutional racism"?
- How can Rand Paul claim that he abhors racism, but he also thinks that a private business has the right to discriminate?
- What function does Rand Paul believe government has in a "free" society (and it does, even in his philosophy)?
So, let's start with 1.
"Institutional racism": Rand Paul is disagreeing with the last vestige of affirmative action, here, and what he's saying gives the lie to his phony "discrimination is freedom when it comes to private entities, but I agree with efforts to ban discrimination by government" weasel. He wants government to be allowed to engage in racial discrimination, too, just only in the old-fashioned way.
Government is right now today allowed to maintain attention to racial identity in such functions as hiring and education when it serves a "compelling interest" of the state. This is what affirmative action got whittled down to after the University of Michigan admissions case, and Rand Paul disagrees with that. To say that there's no room for "institutional racism" is to say that the state never has a compelling interest in making determinations based on race, even if it's to redistribute resources and opportunities to redress historical injustices. He's defining the interests of the institution (in this case, government) downward to exclude considerations that would provide a rationale for what he views as racism.
Why this matters: If Rand Paul was voting on judicial confirmations, he would endorse the view of a judge who disagreed with the status quo of jurisprudence on affirmative action, which still makes room for the state to take a "compelling interest" in racial diversity and redressing past discrimination. Rand Paul believes the state has no such interest.
So, let the "free market," in the form of: existing ill-gotten gains, accumulated intergenerational wealth, unfair historical advantages, and irrational prejudices, sort out who gets admitted to schools and who gets jobs. Or do you think Rand Paul is talking about recognizing those entrenched forms of white privilege when he says "institutional racism"? Really?
Ok, on to #2: You can abhor racism and still keep the government from policing discrimination in the private sector: There has been a lot of talk about Title II of the Civil Rights Act, since it seems Rand Paul would have "modified" that if he had been a Senator when it was passed.
What on Earth does it mean that private business could engage in racial discrimination-- or exempt itself from making reasonable accommodation for people with disabilities-- and the government is powerless to stop it? On this point, a "Rand Paul" is going against what the law currently says. And on a certain level, this comes back to the judicial question again: what would it mean for a judge to interpret laws the way Rand Paul is suggesting? Well, there are a number of problems to sort out. One is that the whole "private business"/"public accommodation" question has long been a fig leaf for advocates of racial exclusion. That's why it's in the law in the first place, and why it's historically played out in the courts. What Rand Paul (or John Stossel) is suggesting when he says that private business has a right to discriminate but that he wouldn't patronize any establishment that did so, is not just that he thinks the market or public opprobrium are sufficient checks on the reach of discriminatory forces in our society. He's saying something fundamental about what he believes the role of government is, and what "justice" means.
When Rand Paul says we can't use government to stop private businesses from discriminating, he's saying that: in situations where a business has discriminated against someone on the basis of race, the law should take the side of the perpetrator and, logically, that the victim is the one infringing someone's freedom. He's saying we should reverse the positions of rights-bearing parties in situations like this, to confer rights onto the perpetrators of racism and to deprive its victims of protections, if they are victimized by private entities. Rand Paul does think he has a role in his capacity as a lawmaker to get the state to intervene in matters of racial discrimination. He just thinks the state should take the side opposite the one it usually does, because he thinks racism is a right unique to private entities that must be protected in order for a society to define itself as free.
That's why he has to mount a "First Amendment" defense of private entities' racism. Think about it: why else does he need to look somewhere in the law for a positive definition of the rights a private entity is exercising when it engages in racial discrimination? Because he thinks the government must work to protect that entity's right to discriminate against your claims of victimhood.
That "He-Man Woman Haters' Club" sign on the neighbor's treehouse? Free speech; try to take it down, or petition your city council to have it taken down, and you can get locked up. Then, the neighbor can sue you, and you should pay them.
A policy would allow the state of Kentucky to say that you can ride wherever you like on a city bus, but not on a Greyhound bus? That's Kentucky, or whoever wants to safeguard the freedom of private business, protecting the bus line's right to discriminate. Because the state can sure do that, if it's protecting the rights of private business. That's the function of government in Rand Paul's "libertarian" paradise.
Sort of like the Arizona immigration law: why would it make sense to give people a private right of action against their law enforcement agency unless you really thought the role of law enforcement was to protect whoever you thought legitimate rights-bearing interests were from someone whose claim to "rights" you thought were illegitimate? Rand Paul is saying we have it backwards when it comes to "private" racism; government should step in, but on the other side. He wants you to boycott, withhold your business, keep yourself excluded from an exclusionary institution, but he wants the government to make sure your boycott fails, because if it succeeded, that would represent a racist business losing its freedom.
So, finally, 3: What place, government? Well, let's keep it simple. Rand Paul says "accidents happen" when it comes to the BP oil disaster. So, private businesses should be free from the constraints of laws that require accountability for the risks they take, but then what happens when accidents happen? Someone has to clean up the mess, right? Well, it would be an undue burden if the law said in advance that private business would have to clean up its own mess. That would stifle innovation, keep businesses from taking risks, put a boot on the neck of the free market.
It would still be an undue burden if the government stepped in after the fact to assign blame, and make a company clean up the mess it made, because it could go out of business! And government has to protect the free market, right? So, what's the role of government when accidents happen?
You guessed it: Rand Paul wants the government to clean up the mess, but he won't have the government making any rules that reduce the burden on itself in the event that an accident happens. Because according to Rand Paul, government has no right to protect its interests from the actions of private enterprise-- government exists only to ensure that private enterprise is totally unfettered in its actions, even if government has to step in to bash some heads in order to keep business free from illegitimate interference.
This has been TLDR. Thank you for bearing with me. But don't let the "libertarian" label fool you: a "Rand Paul" is just trying to pull a fast one on anyone who thinks rights are meaningful. In Rand Paul's worldview, all the rights belong to private enterprise, and that's not some value-neutral utopian ideal. It's a hard-nosed, aggressive agenda we've seen over and over historically, in tragedies from Lester Maddox to the BP oil disaster, and the toll it's taken on actual human beings is the reason we have laws that protect us from private enterprise, instead of the other way around.