In defense of Rand Paul – somewhat

Rand Paul

Have you ever been in a conversation with someone where, when the other person is speaking, you (a) are not really listening, and/or (b) are focusing on what you are going to say next?  This is not just a habit into which we can fall as individuals; it happens as frequently, perhaps more so, when we’re involved in the kind of “group think” that characterizes political parties or philosophies.  Such may be true of the way in which some progressives have mocked and scorned Rand Paul.

When we demonize our opponent(s), it becomes easy to dismiss what they are saying; so easy that we often forget that the issue about which we are speaking is complex.  We tend to make “whipping boys or girls” of our opponents; mocking them with an intensity that if directed at us we would describe as cruel.

I have written previously about how progressives seem to have the intellect (not necessarily intellectual) high ground over many conservatives in our body politic.  Democrats simply don’t nominate individuals to high office who are so lacking in knowledge and analytical abilities as Dan Quayle, George W. Bush, or Sarah Palin.  However, there is a legitimate conservative philosophy in our body politic, and there have even been occasional Republicans who can articulate it.

Credible Conservative Thinkers Credible Conservative Politicians
William F. BuckleyWard Connerly

George Will

John DanforthNewt Gingrich1

Barry Goldwater

1 It’s easy to dismiss Gingrich because he has had so many faux pas, but he has also had extended moments of lucidity in which he can articulate a legitimate conservative point of view.

Tamar Jacoby

In what some progressives might think an unlikely source, a cogent argument has been made somewhat in defense of Rand Paul’s positions on the 1964 Civil Rights Act and a few other issues.  On the opinion page of CNN on-line, Tamar Jacoby has written a very thoughtful piece entitled “What’s behind Rand Paul’s confusion.”

Ms.  Jacoby writes:

… whether Rand Paul knows it or not, when he appeared unwilling to tell Maddow that he could fully support the Civil Rights Act, there was an important question lurking beneath the surface of his confused remarks. It’s not a new question — Americans have been grappling with it for 150 years.

But it and others like it are sure to be reopened in the months to come, as the debate begun by the Tea Party deepens and the nation revisits the issue of where government should begin and end.

Paul thrust us into one of thorniest corners of that larger question: What’s the government’s role in regulating how private actors — private individuals and the private sector — treat people of another race.

The framers of the 14th Amendment wouldn’t go there; in 1868, America wasn’t ready for it. That classic text, the foundation of all civil rights, deals only with how the state, not individuals or private businesses, should approach racial difference.

If we’re going to assess what Ms. Jacoby writes about Rand Paul, let’s make sure that we’re clear on the wording of the essential first clause of the 14th Amendment.

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State [bold added] shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Why is it that so many of the rights guaranteed in the 14th amendment did not have the force of law until after the Civil Rights Act of 1964 and subsequent ones in 1965 and 1968?  Because the framers of the 14th Amendment, in their infinite wisdom, limited “equal protection of the laws” to actions by states, and only states.  This meant that actions by individuals, businesses, clubs; all forms of private organizations were exempt from the 14th Amendment because they were not states.  The Civil Rights Act of 1964 closed this gap.

An excellent interpretation of what Dr. Paul said as it relates to the 14th Amendment is offered by Benjamin Todd Jealous, President of the NAACP, in the Huffington Post: NAACP President Benjamin Jealous

Mr. Paul says that he supports all efforts to fight government-sponsored discrimination. He has no quibble with the end of segregation in public schools, for example, or in public-sector hiring. His only dispute is with desegregation of the private sector — the local merchants and lunch-counter operators whose speech rights were apparently encroached on by an overzealous federal government. In Mr. Paul’s worldview, the free hand of the marketplace would have eventually forced most of those businesses to serve black folk anyway, because it was in their economic interest to do so.

There can be disagreements as to whether the Civil Rights Act expanded the rights of minorities, or whether it orchestrated an “exchange of rights.”  This exchange would involve African-Americans and other minorities gaining the right to full access to public accommodations such as restaurants or hotels at the expense of the owners of these establishments to choose who they want and don’t want as customers.  Congress, with the strength of an invigorated Civil Rights movement and some bullying by President Lyndon Johnson, passed the law which came down on the side of extending rights to minorities.

So if Dr. Paul is asserting that an argument can be made that establishment owners such as restaurateurs can operate their businesses as their castles, he is simply reflecting the law of our land for ninety-nine years after passage of the 14th Amendment; one hundred seventy-seven years after the Constitution was ratified, and one hundred eighty-eight years after the Declaration of Independence was written.

If Dr. Paul is to be believed, he personally would never discriminate against an African-American and he also believes that no state can do so.  However, he seems to raise the question as to whether it is better to protect the rights of minorities than private shop-keepers.  As Tennessee Senator Lamar Alexander said on “Face the Nation,” Dr. Paul just made it to the “big leagues” from Triple A politics.  He needs time to get his bearings straight.  That may be so, but for so many Americans who long ago made the decision that the lessons of history and the principles of fairness and justice protect the rights of minorities at all costs, Dr. Paul’s maturation is a little slow.  Unlike many of his Republican colleagues, he seems to want to engage in the world of complex ideas, and for that we give him credit.  However, most of America is well beyond his transitional thinking and is committed to protecting civil rights.  We’re okay with Dr. Paul raising questions about settled policy, but it’s too scary to have him in a position of being a contemporary policy-maker.  Thank you, Dr. Paul, for reminding us why there are certain liberties that require the unequivocal protection of law.