What Rand Paul really said about the Civil Rights Act of 1964.

Rand Paul is coming under attack for things he said about the Civil Rights Act of 1964, which outlawed race discrimination in privately owned restaurants and hotels. He's also being defended, of course, notably here, by Allahpundit:

I don’t like to go back-to-back on the same subject but a hot rumor hit Twitter as the last post was being published that Paul told NPR he would have voted against the 1964 CRA. (Much like certain Democrats who are still serving in the Senate did.) As you’ll see, it’s not true. The reporter, smelling blood, badgers him about it, but Paul never quite gives him a straight answer. And he qualifies his response with enough virtue — he opposes institutional racism, would have marched with MLK, likes a lot of what was in the CRA — that there’s really no wound inflicted here. His reservations about the law have to do not with the ends but with the means of federal compulsion; he wants business owners to serve everyone but clearly prefers using boycotts and local laws to pressure them. It’s not a question of being pro- or anti-discrimination, in other words, it’s a question of how federalism and civil-rights enforcement mesh. The left’s going to give him plenty of grief for that — expect questions soon about whether he would have voted to ratify the Fourteenth Amendment — but the “closet Klansman” narrative that NPR’s going for here is D.O.A.

It's true that Rand made many expressions of his opposition to race discrimination in what was a hearty effort to blunt the effect of what he was saying, but it is not true that his "reservations" were limited to federalism concerns. (As to federalism, there was an argument, rejected long ago by the Supreme Court, that the Constitution did not empower Congress to regulate in this area.)

Rand was also expressing the view that owners of private businesses have a right to decide whom they will serve. Such a right would not run counter to the 14th Amendment, because the 14th Amendment only protects individuals from the actions of the state and privately owned restaurants and hotels are not the state. If you want a legal requirement that these businesses treat people equally, you need to pass a statute, which is why the Civil Rights Act of 1964 was passed.  And that statute was susceptible to arguments it violated the right of the business owners to do what they wanted with their own property. When the Supreme Court upheld the Civil Rights Act of 1964, not only did it need to find an enumerated power for Congress to act, but it also had to deal with the argument that the Act violated the Due Process Clause. Rand's statement harkened back to both of those old arguments.

Look at what he said:

I don’t like the idea of telling private business owners—I abhor racism. I think it’s a bad business decision to exclude anybody from your restaurant—but, at the same time, I do believe in private ownership. But I absolutely think there should be no discrimination in anything that gets any public funding, and that’s most of what I think the Civil Rights Act was about in my mind....

I would not go to that Woolworths, and I would stand up in my community and say that it is abhorrent, um, but, the hard part—and this is the hard part about believing in freedom—is, if you believe in the First Amendment, for example—you have too, 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.

He likens private property rights to free speech rights. If you care about free speech rights, you defend even the people who say horrible things — Nazis, the KKK, etc. That's standard constitutional law doctrine. In Rand's view — and in the view of many libertarians — property rights work the same way. So you could have this horrible racist restauranteur who excluded black people, and the government would have to leave him alone, just as the government couldn't do anything about it if a white person had a dinner party at his house and only invited his white friends.

***

A few years ago, I was at a conference with libertarians, and I was confronted with exactly this point of view. I expressed my concern that they were putting an extreme and abstract idea above things that really matter in the world. I challenged them — in what I thought was a friendly conversation — to explain to me how I could know that their commitment to the extreme abstraction did not, in fact, have an origin in racism. Which came first, the proud defense of private property or the shameful prejudices that polite people don't admit to anymore?

For raising the subject, I was loudly denounced, both at the dinner table, and on the Reason Magazine website. As I said at the time:

I am struck -- you may think it is absurd for me to be suddenly struck by this -- but I am struck by how deeply and seriously libertarians and conservatives believe in their ideas. I'm used to the way lefties and liberals take themselves seriously and how deeply they believe. Me, I find true believers strange and -- if they have power -- frightening. 

I appreciate libertarians up to a point, but the extreme ones are missing something that is needed if you are to be trusted with power. I'm glad Rand Paul is on the scene, but I'm going to hold him to his own statements, and it is plain to me that Allahpundit has misunderstood or misrepresented what he said. I'm certainly not saying he's a racist, but he seems to support a legal position that would place racist private businesses beyond the power of anti-discrimination statutes.

UPDATE: Rand Paul goes on the Laura Ingraham show and, with the help of her very supportive questions, finally gets around to saying that if he were in Congress in 1964, he would have voted for the Civil Rights Act.  Here's audio of the entire segment. Here's a text summary.

UPDATE 2: Allahpundit responds to me:

Althouse’s point is that Paul opposes any government interference in how someone runs their business, which would be strong form laissez faire; I assumed, because he danced around NPR’s questions and because this was obviously about to become a major headache for him, that he was taking the more palatable, weaker form position that it’s more acceptable for state and local agencies to act against discrimination but that the feds should stay out. (As it turned out, he now says having the feds interfere is fine.) That’s why I brought federalism into it, and that’s why I thought the Fourteenth Amendment would eventually end up in the discussion. If Paul doesn’t want the feds meddling in private businesses to protect minority rights, does he at least support letting them meddle with state governments that refuse to do so?

"Meddle" in what way? Require the states to legislate? Under New York v. United States, that is more of a constitutional problem than directly regulating. Do you mean putting conditions on accepting federal funds? That could be done most easily. If you mean using §5 of the 14th Amendment, that shouldn't work, because the states are not violating rights by failing to control the choices private citizens that are not, in fact, rights violations. It's hard to believe Paul would support these things (even before he conceded that he'd vote for the CRA of 1964).