“[E]very piece of anti-discrimination legislation passed over the past few decades,” a young campus activist wrote in a 1982 editorial in Baylor University’s college paper, “ignores one of the basic, inalienable rights of man — the right to discriminate.” Though “eliminating racial and sexual prejudice” had “noble aspiration,” the editorial claimed, anti-discrimination laws “necessarily utilize the ignoble means of coercive force.”
More than three decades later, the author of that editorial is a United States senator who hopes to be president. On Monday, Sen. Rand Paul (R-KY) revealed his presidential campaign slogan: “Defeat the Washington machine. Unleash the American dream.” On Tuesday, he is expected to formally announce his bid for the White House.
Yet, while Paul’s ambitions have no doubt grown since his days as a college prankster and member of the Baylor swim team, his politics have changed little. Paul continued to espouse the same opposition to civil rights laws that he expressed as an undergraduate until months before his election to the Senate. And, while Paul has since learned to be more careful in his rhetoric, his public statements on the Constitution are entirely inconsistent with a legal regime that protects women and minorities from businesses that engage in discrimination.
Indeed, if a President Paul succeeds in implementing the younger Paul’s concept of the “basic, inalienable rights of man,” he would destroy decades of legislation won by men and women who literally bled for the cause of freedom. No president since Rutherford B. Hayes, who ended Reconstruction as part of a deal to secure his own election, could make a similar claim.
‘A Free Society Will Abide’
It is unlikely that many national figures would fare well if they were judged according to the views they held while in college, so the editorial Paul penned at Baylor could easily be dismissed as the naive rantings of a young man born into privilege with little understanding of the outside world. Twenty years later, however, Paul was a medical doctor practicing ophthalmology in Bowling Green, Kentucky — and his views on discrimination had not changed one bit. “Decisions concerning private property and associations should in a free society be unhindered,” Paul wrote in a 2002 letter to his local newspaper. He added that these decisions should remain unhindered even though “some associations will discriminate.”
“A free society will abide unofficial, private discrimination,” Paul claimed, “even when that means allowing hate-filled groups to exclude people based on the color of their skin.”
This notion that “freedom” requires permitting business owners to engage in odious behavior animates many of Paul’s statements on discrimination. Though “[i]t is unenlightened and ill-informed to promote discrimination against individuals based on the color of their skin,” Paul wrote in his 2002 letter, “It is likewise unwise to forget the distinction between public (taxpayer-financed) and private entities. A society that forgets this distinction will ultimately lose the freedoms that have evolved and historically been attached to private ownership.”
Eight years later, during his successful bid for the U.S. Senate, Paul laid out this philosophy more succinctly. After a member of the Louisville Courier-Journal’s editorial board asked Paul if “it would be okay for Dr. [Martin Luther] King not to be served at the counter at Woolworths,” the soon-to-be-senator replied that permitting racists to discriminate is “the hard part about believing in freedom.”
And then there was his interview with MSNBC’s Rachel Maddow, where he admitted that he has a problem with much of the Civil Rights Act of 1964. As originally enacted, the Civil Rights Act is divided into 11 titles, most of which prevent discrimination by government actors. Shortly after winning the GOP nomination for the Senate seat he now holds, Paul told Maddow that he has no problem with these bans on state-sanctioned action because “the government should not be involved with institutional racism or discrimination.”
Paul did express doubts, however, about the provisions of the Civil Rights Act that “harbor in on private businesses and their policies.” When pushed on whether businesses should be able to turn patrons away because they are black, Paul suggested that doing so would violate the free speech rights of racists — “I don’t want to be associated with those people, but I also don’t want to limit their speech in any way in the sense that we tolerate boorish and uncivilized behavior because that’s one of the things freedom requires is that we allow people to be boorish and uncivilized.”
The Right to Contract
Since this interview, Paul’s been somewhat more cautious in his rhetoric, possibly because he learned an important lesson about politics after his encounter with Maddow dominated early coverage of his Senate campaign. As the New Yorker’s Ryan Lizza explained in a lengthy profile of Paul, once Paul won his Senate primary, “the appearances on Alex Jones’s show stopped and the wooing of the establishment that he abhorred began.” Paul wasn’t going to let his willingness to tolerate racism stand between him and victory at the polls.
Yet, while Paul’s been much less direct in laying out the implications of these views for civil rights laws, he still clings to an understanding of the Constitution that is incompatible with bans on private discrimination. Just last January, for example, Paul praised the Supreme Court’s notorious 1905 decision in Lochner v. New York during a speech at the conservative Heritage Foundation. Lochner, which is widely taught in law schools as an example of how judges should not behave, helped fabricate a “right to contract” that employers could wield to challenge laws protecting their workers. Lochner later formed the basis for decisions stripping workers of a right to unionize and striking down a minimum wage.
As I explain in my book, Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted, Lochner’s right to contract is wholly incompatible with modern civil rights laws. As the Court explained shortly after Lochner, this fabricated right does not permit the government “to compel any person in the course of his business and against his will to accept or retain the personal services of another, or to compel any person, against his will, to perform personal services for another.” So the law can neither require racists to hire racial minorities nor can it require racist business owners to serve people of color — at least under the Supreme Court decision that Paul recently praised.
What’s striking about Paul’s statements on civil rights, however, is that, despite his lifelong opposition to bans on private discrimination, Paul sounds less like George Wallace than he does like Commander Data when he discusses anti-discrimination laws. That is, rather then coming off as an unrepentant racist seeking to carve out a space for bigotry, Paul almost always goes to great pains to emphasize that he views racism as “unenlightened,” “ill-informed,” “boorish,” and “uncivilized.” Yet he also seems unable to grasp fundamental concepts that most lawmakers — indeed, most humans — simply take for granted. Paul lives in a world of theory untouched by the lessons of history and evidence.
In 2013, for example, Paul gave another speech praising the Lochner decision in which he made the surprising claim that Lochner helped “end Jim Crow.” His evidence for this claim was a 1917 Supreme Court decision named Buchanan v. Warley, which did, indeed, rely on Lochner-like reasoning to strike down an ordinance prohibiting a homeowner from selling his home to “colored people.”
Yet there is a reason why Buchanan is an obscure Supreme Court decision that few people have heard of: Jim Crow didn’t exactly end in 1917. To the contrary, it continued to thrive for nearly half a century. Lochner’s rule, which placed obedience to contracts above other virtues, could work in white supremacists’ favor just as easily as it could be turned against them. Racially restrictive covenants, for example, which prohibited homeowners from selling their property to African Americans, were a common Jim Crow tactic. Moreover, the Supreme Court’s decisions that actually helped tear down Jim Crow, cases like Shelley v. Kraemer (which blocked enforcement of racist covenants) and Brown v. Board of Education, were rooted in the Constitution’s guarantee that no one may be denied “the equal protection of the laws.” They had nothing whatsoever to do with Lochner.
Criminal Justice and Civil Rights
Like the proverbial man with a hammer, who must treat every problem as if it is a nail, Paul behaves as if tearing down government programs is the solution to every problem. This explains his idiosyncratic view that Lochner helped dissolve Jim Crow. It also explains an unusual op-ed Paul published last November, as much of America watched the heavy-handed tactics used by police in Ferguson, Missouri with horror. Ferguson, with its images of tear gas-filled streets and peaceful protesters confronted by tanks, offered a genuine window into the dangers of government overreach, and Paul rightfully described Ferguson as a symptom of a criminal justice system run amok.
In offering solutions to Ferguson, however, Paul quickly slipped into hammer-and-nailism, claiming that police overreach could somehow be linked back to America’s welfare policy. “The failure of the War on Poverty has created a culture of violence and put police in a nearly impossible situation,” Paul claimed, without citing any evidence other than the fact that poverty still exists.
The strongest argument against the image of Paul as the scourge of civil rights is his admirable willingness to seek criminal justice reform. As Bloomberg’s Dave Weigel wrote on Monday, Paul could potentially “cement the GOP’s role in the reform push–a role that still benefits from the Nixon-to-China, fish-out-of-water coverage conservatives get for leading on reform.” Paul teamed with Senate Minority Leader Harry Reid (D-NV) to introduce legislation restoring voting rights to many people convicted of non-violent offenses. And he joined with Sen. Cory Booker (D-NJ) to introduce the REDEEM Act, a set of reforms that primarily focus on juvenile offenders, but which also include sealing some adult offenders’ criminal records and restoring government benefits to some minor drug offenders.
These proposed reforms are welcome, but they are also far from adequate to the task of reforming a criminal justice system in which 1 in 3 African American men can expect to go to prison at some point in their lifetime. Paul’s relatively modest criminal justice proposals also do very little to counterbalance a philosophy of governance that is hostile to bans on private discrimination.
Paul’s anti-government views, moreover, cut much deeper than the two areas of criminal justice reform and civil rights. Last month, in a speech at the historically black Bowie State University, Paul correctly linked high crime rates to poverty — “Criminal justice, or the lack of criminal justice, it’s not a black or white problem,” Paul explained, “It’s a poverty problem.” But Paul has also called for deep cuts to programs like Medicaid and food stamps, including a massive 30 percent cut to the later. If poverty begets “the lack of criminal justice,” Paul’s fiscal policies seem designed to make our criminal justice system even worse.
The Leverage Point
As Barack Obama has discovered repeatedly since moving into the White House, a president’s power is limited if Congress is not on board with their agenda. So a President Paul is unlikely to repeal many civil rights laws legislatively, even if he sets out to do so, if Congress balks at such an agenda.
Whoever the next president is, however, they are likely to have an unusual opportunity to work around Congress by shaping the institution at the top of the one remaining branch of government: the Supreme Court. Assuming that no one leaves the Court before Inauguration Day 2017, three justices will be over the age of 80 when the next president is sworn in, and a fourth, Justice Stephen Breyer, will be 78 years-old. If Paul is that president, he could replace nearly half of the Supreme Court in just one term.
Meanwhile, Justice Clarence Thomas, who will be a relatively young man at the age of 68 during the next inaugural, has already embraced a narrow reading of the federal government’s power under the Constitution that is complementary to Paul’s — Thomas’s reading of our founding document would forbid a nationwide ban on child labor, federal minimum wage laws, and the ban on whites-only lunch counters, among other things. If Thomas were joined by four Paul appointees, that constitutes a majority of the Court.
Paul, in other words, would not need to push repeal legislation through Congress in order to gut our civil rights laws. He would not even need to openly express his desire to do so. He would simply need to place men and women who share his views on the Supreme Court, and then sit back while they implement his vision.
And even if the American people soundly reject this agenda when Paul seeks reelection, those four new justices would serve for life.