Just after winning his Republican primary in May, Rand Paul got himself into a political pickle over his views on property rights and the 1964 Civil Rights Act. Having reluctantly discussed concerns about antidiscrimination laws with the Louisville Courier-Journal and NPR, Paul made his now-notorious appearance on the Rachel Maddow Show, where Maddow grilled him for 15 minutes on whether he opposed government intervention to stop racial discrimination. After saying he favored overturning government-mandated discrimination, Paul finally admitted that he opposes Title II, which forbids private owners from discriminating in their own businesses.
As he told the Courier-Journal: “I don’t like the idea of telling private business owners—I abhor racism; I think it’s a bad business decision to ever exclude anybody from your restaurant; but at the same time, I do believe in private ownership. . . .”
Maddow responded: “I think wanting to allow private businesses to discriminate on the basis of race, because of property rights, is an extreme view.” Within a day Progressives were touting the interview as proof of a deep conflict between libertarian defenses of private property and struggles for racial equality. Meanwhile, compromising libertarians like Brink Lindsey reacted by discovering exceptions to libertarian principles—to make room, again, for federal antidiscrimination laws. The entire debate has played out as an argument over libertarianism and “extremism,” with Progressives and many nominal libertarians both condemning Rand Paul’s simplistic “extremism” about private property and libertarian rights.
I have little interest in defending Paul but it’s strange to treat him like some case study in the dangers of libertarian extremism. Rand Paul is a conservative, not a libertarian—let alone an “extreme” one. He’s said as much, in so many words, in repeated interviews. Now, you could simply say, “He may be no libertarian, but never mind Rand Paul—what about the issue?” Libertarianism opposes government control of private business decisions; taken to extremes, doesn’t that include laws against racist business practices—the civil rights movement’s crowning achievement?
Well, I do have something to say on behalf of “extremism.” Not on behalf of sacrificing the civil rights movement’s achievements to “extreme” stands on antistatist principle. Rather, “extreme” stands on antistatist principle show what the civil rights movement did right, and what it really achieved, without the aid of federal laws.
To be sure, uncompromising libertarianism does mean uncompromised property rights. That includes, if we’re to be “extremists,” a conscientious defense of businesspeople’s right to be awful, to discriminate against anyone for any reason, so long as they do it on their own property without violence. That ain’t Jim Crow as practiced in the South: State laws and Klan terrorism there enforced segregation on unwilling businesses. But Maddow’s correct—Jim Crow was also a social and economic system, and white businessmen colluded even without legal mandates. Woolworth’s lunch counters were segregated by company policy not by law. Rand Paul “abhors” that personally and wouldn’t eat there but thinks government shouldn’t intervene.
Maddow was baffled: “But isn’t being in favor of civil rights, but against the Civil Rights Act like saying you’re against high cholesterol but in favor of fried cheese?” She’s begging the question; you may as well ask how someone could be for patriotism but against the PATRIOT Act. But while mistaken, the question isn’t cheap rhetoric. It’s revealing of Maddow’s premises about law and social progress.
As she insisted later, “Let’s say there’s a town right now. . . . [T]he owner of the bowling alley says, ‘we’re not going to allow black patrons.’ . . . You may think that’s abhorrent and you may think that’s bad business. But unless it’s illegal, there’s nothing to stop that—nothing under your worldview to stop the country from resegregating.”
Unless it’s illegal anything could happen; nobody can stop it; a just social order can only form through social control. Private segregation should stop and only government can stop it; hence, Title II. Paul helpfully suggests you can loudly announce your personal abhorrence of racism, even without laws. Maddow rightly dismisses that as a response: Entrenched white supremacy was indifferent to personal outrage; it demanded concerted, political resistance.
But if libertarianism has anything to teach about politics, it’s that politics goes beyond politicians; social problems demand social solutions. Discriminatory businesses should be free from legal retaliation—not insulated from the social and economic consequences of their bigotry. What consequences? Whatever consequences you want, so long as they’re peaceful—agitation, confrontation, boycotts, strikes, nonviolent protests.
So when Maddow asks, “Should Woolworth’s lunch counters have been allowed to stay segregated?” neither she nor Paul seemed to realize that her attempted coup de grace—invoking the sit-in movement’s student martyrs, facing down beatings to desegregate lunch counters—actually offers a perfect libertarian response to her own question.
Because, actually, Woolworth’s lunch counters weren’t desegregated by Title II. The sit-in movement did that. From the Montgomery Bus Boycott onward, the Freedom Movement had won victories, town by town, building movements, holding racist institutions socially and economically accountable. The sit-ins proved the real-world power of the strategy: In Greensboro, N.C., nonviolent sit-in protests drove Woolworth’s to abandon its whites-only policy by July 1960. The Nashville Student Movement, through three months of sit-ins and boycotts, convinced merchants to open all downtown lunch counters in May the same year. Creative protests and grassroots pressure campaigns across the South changed local cultures and dismantled private segregation without legal backing.
Should lunch counters have been allowed to stay segregated? No—but the question is how to disallow it. Bigoted businesses shouldn’t face threats of legal force for their racism. They should face a force much fiercer and more meaningful—the full force of voluntary social organization and a culture of equality. What’s to stop resegregation in a libertarian society? We are. Using the same social power that was dismantling Jim Crow years before legal desegregation.
I oppose civil rights acts because I support civil rights movements—because the forms of social protest they pioneered proved far more courageous, positive, and effective than the litigious quagmires and pale bureaucratic substitutes governments offer.
Libertarians must change the terms of this rigged debate. The problem isn’t that libertarian views get “extreme,” but that some don’t take free markets far enough, forgetting they mean freedom not just for businesses and stereotypical forms of commerce but for every sort of consensual social experimentation, nonviolent social struggle, and people-powered solidarity free people can practice. The question is not whether to make our views less “extreme,” but how to make our “extremism” more thoughtful. Perhaps libertarianism, the nation, and the world are in dire need of creative extremists.