It is entirely understandable that the chairman of the Cato Institute would feel the need to stand up and defend Rand Paul, the Republican Senate candidate from Kentucky who caused a political firestorm last week after insisting in a series of interviews that the Civil Rights Act of 1964 should not have been used to enforce anti-discrimination laws against private businesses.
That is because Paul’s position is entirely consistent with those put forth by the Cato Institute, a rightwing Libertarian think tank.
Robert A. Levy, in a column for Politico, called Rand’s stance “principled” but also “politically incorrect.” This, in and of itself, is rather outrageous. To suggest that the only thing wrong with supporting private-sector apartheid is that it is “politically incorrect” and not morally and ethically abhorrent is quite a feat of political spin.
But Levy doesn’t leave it there. He goes on to make the argument that the Civil Rights Act “has a disputable constitutional pedigree.”
The Civil Rights Act addresses the conduct of private individuals, so it is not easily shoehorned into the 14th Amendment, which constrains only government conduct.
So what Levy is saying is that the 14th Amendment does not give the government the authority to pass laws that might constrain the conduct of private individuals.
Here is what the 14th Amendment says:
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 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.
So Levy is trying to do a little Constitutional jujitsu here, by pretending that the 14th Amendment only applies to the State being discriminatory and not private individuals.
But what of the last part of Section 1, the so-called equal protection clause? How can a state not deny equal protection of the laws without enforcing those same laws on private individuals?
If a shop owner wants to discriminate as to who their customers will be, or a businessman wants to discriminate as to who he will hire and employ, or a housing developer wants to maintain segregation in certain neighborhoods... does it then follow that certain citizens are being denied equal protection of the laws should the state choose not to act?
Clearly the Supreme Court thinks so, if the Cato Institute does not.
And remember that Section 5 of the 14th Amendment reads:
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
So it would seem then that the Civil Rights Act is not on shaky or problematic ground with regards to the 14th Amendment.
One of the problems, I believe, is with the extreme view that Cato takes when considering the issue of private vs. public. They assume that a private business should enjoy the same protections from government intrusion as a private home.
However, there is a public element to any business transaction that is being disregarded by Mr. Levy. By going into the public sphere to seek clients, customers, employees, investors and so forth, a businessman has crossed a line that necessarily invokes a degree of government intervention and regulation.
If someone wanted, for example, to keep black and brown people from entering their home, few would argue that they have no such right. But to make that same demand in a business environment is unacceptable because such a demand necessarily requires backing and enforcement from the government.
For example, if you were a business owner who wanted to prohibit people of color from entering your establishment, how would you enforce such a rule assuming that someone chose to ignore it? Call the police? File a lawsuit with the courts and demand redress? Or maybe you would hire a private security team to forcibly remove such individuals, but one could see how such actions could quickly get out of hand and once again require the intervention of law enforcement entities.
And this leads to my next point which is that libertarian freedoms, such that they are, could not exist outside the framework of a collectivist society.
When Levy says at the end of the article that “The essence of collectivism is force. The essence of libertarianism is choice” he is creating a false dichotomy that assumes that one part could exist without the other.
But outside the mythical fantasy of living on a desert island like Robinson Crusoe or Swiss Family Robinson, there is no place on earth that one can go to escape the confines and influence of collectivist society.
Contrary to popular myth, the United States was NOT founded by a bunch of “rugged individualists,” but rather by people working together to build communities and societies that could support our ideals of freedom and justice.
Without this collectivist framework, the rugged individualists would have been quickly stripped of their “private property” by Native Americans, the French, the British, the Germans, criminal elements or whatever other “collectivist” entities came along to fill the vacuum.
The point is that the only reason we enjoy the freedoms that we have is because we have a government that is strong enough to protect them.