Rand Paul and the perils of textbook libertarianism

Public accommodations included gas station rest rooms, drinking fountains, lunch counters, hotels, movie houses and sports arenas. It is hard to imagine a candidate today making the case that discrimination in such places should be allowed. Indeed Mr. Paul has said he favors the “public accommodations” provision. But in advancing the autonomy of private businesses, he is reviving libertarian thought in its peak period. In his 1962 book “Capitalism and Freedom,” Milton Friedman, the right’s most influential economist, equated the Fair Employment Practices Commissions — created to prevent workplace discrimination — with “the Hitler Nuremberg laws.” But he also applied the comparison to “the Southern states imposing special disabilities upon Negroes.” In other words, he recognized that Jim Crow was itself a form of intrusive government, only enacted at the state level.

This points to the bind Mr. Paul is in. However attractive it may be just now to depict all political conflict as a neatly bifurcated either/or, with the heroic individual pitted against the faceless federal Leviathan, the truth is that legislative battles over civil rights laws were waged within government, and between competing incarnations of it, federal vs. state. Passage of the Civil Rights Act, as Senator Lindsey Graham of South Carolina observed last week, hinged on the Interstate Commerce Clause, which “was properly used by the courts and the Congress.”