Why Rand Paul couldn’t help himself

I have it on good authority that Rand Paul was not named for Ayn Rand. (His legal name is Randal.) Still, he might as well have been. Soon after his stunning victory in last week’s Republican Senate primary in Kentucky, the younger Paul—his father is the libertarian congressman Ron Paul—stirred up a firestorm of controversy over his opposition to the 1964 Civil Rights Act, or rather to that part of it forbidding private businesses from discriminating on the basis of race. Critics immediately smeared him as a racist. Defenders portrayed him as a man of principle. Me, I’d call him a libertarian nerd.

The principle to which Paul has attached himself is freedom of contract, the notion that consenting adults should be free to do business with whomever they please. Like its close cousin, freedom of association, it implies also the negative: the freedom not to contract—not to hire, not to sell to, and so on. And as a general rule it’s perfectly fine, the basis both of our laws and economic system.

Is Paul to be applauded, then, for insisting a private businessman has the right to discriminate against whomever he pleases? I take him at his word when he says he believes racial discrimination is morally wrong, and that the state should be forbidden from practising it. But his unwillingness to apply the same stricture to private actors is to me evidence not of his refusal to run away from his libertarian convictions but that he doesn’t understand them. The reason we have laws forbidding private discrimination is not, as some impatient critics might interject, just “because it’s wrong” (lots of things are wrong that aren’t outlawed), but precisely in obedience to the principle of freedom of contract, properly understood.

It’s true, as Paul’s defenders point out, that discrimination is all around us. We all discriminate every day, and not only in obviously defensible ways: discriminating against the incompetent, say, or the corrupt. When it comes to choosing a sexual partner, for example, most people continue to discriminate on the basis of race. No one proposes state intervention to correct it. What distinguishes discrimination in hiring, or in business generally, is two things: one, it is in the public square, or more nearly so than the bedroom, and two, it is not purely an isolated, individual act, but rather is engaged in by large numbers of people at the same time.

If it were only a matter of individual idiosyncrasy—perhaps for some reason I don’t like people with freckles—it would be unlikely to attract the attention of the law. If, likewise, I were the only employer in town who refused to hire black people—if there had been only one lunch counter in Alabama or Mississippi that refused to serve blacks, while the rest were open to all—then again it wouldn’t be an issue, and chances are the Civil Rights Act would never have been passed. It is because the ratios were the reverse that the law, rightly, stepped in.

It’s not a business that is prevented from discriminating, in other words, but all businesses. The constraint is not on the rights of the individual, but the power of the majority. It’s analogous to competition law: in effect, white businesses across the South were engaged in a kind of tacit conspiracy in restraint of trade. When all or most businesses in a community refuse to hire or serve people of a certain race, the latter can hardly be said to be consenting; in the absence of competitive options, freedom of contract becomes an illusion. As with competition law, it might be argued that such “cartels” break down with time. And certainly there’s always the potential for abuse in any state intervention. But weighing the likelihoods, it doesn’t seem worth the wait.

At least, it didn’t at the time the anti-discrimination laws were being drafted. But today? Times have changed. I doubt there is a great pent-up desire to discriminate, against which the law is the only obstacle. The vast majority of people don’t want to discriminate, and probably wouldn’t do so, law or no law. On the other hand, those that do probably are. They’re notoriously difficult laws to enforce: how do you prove an employer refused to hire someone on the basis of race, and not some other consideration? How do you get inside his head?

If they don’t make much difference either way, is it worth keeping them on the books? Yes. Since they only prohibit what most people wouldn’t dream of doing anyway, they’re not much of an imposition—as long as the authorities don’t get too zealous about enforcement, and assume the power to search premises without warrants and the like. Meanwhile, the small number that wish to discriminate are at least prevented from doing so openly, or in the assumption of social approval. This hypocritical state of affairs is probably the best saw-off, as far as a free society goes—the anti-discrimination version of “don’t ask, don’t tell.”

So why did Paul feel compelled to voice his opposition to the Civil Rights Act and similar laws—not on the basis of the potential for abuse, but absolutely, in principle? Because, as a libertarian nerd, he can’t help himself. They are so transfixed by principle as to be unable to see its underpinnings: slaves to liberty, blinded by freedom’s light.