This Rand Paul Controversy: Not that bad

(quick note: i haven't had a chance to proof read this, I'm busy - but I wanted to get the ideas out asap, please excuse typos and small mistakes. I'll proof read it later! I promise!)

Many people might have heard of this new Rand Paul controversy. Many people probably have no idea what the heck I'm talking about. So here's a summary and analysis.

Rand Paul was on the Rachel Maddow show. The two have a bit of a connection despite their dramatic different view points on politics; he announced his campaign to run for this Kentucky Senate race on her show. Paul is much more libertarian in ideology, and she's much more Democratic. The two agree on some things, but disagree on much much more.

On the show in question, Maddow relentlessly demanded Paul talk about Title II of the Civil Rights Act of 1964 -- why this is even really an issue is beyond me. She wanted him to admit on air that he does not support the federal government preventing private businesses from banning certain people (generally minorities, of course) from entering. Rand Paul, of course, should have agreed to it, this is a major belief of the libertarian movement. After all, the right to private property is pretty much the whole reason the US is a nation.

But what's the big deal? So what? I want to argue that preventing the federal government from forcing racist people ban minorities (or vice versa) from their property would be a glorious thing.

... and, no, I'm not racist. It's just that I think that private property (and, as we'll see, the Constitution) is a bit more important than people's feelings. In fact, I've been a minority: I've lived in Japan for 4 years... I've gotten quite a few weird looks on the trains.

This entire issue is hypocritical

Here's the crux of the problem: If I were to say "you have the right to do with your property as you wish, so long as you don't interfere with other people's property rights", then we'd all agree.

But apparently, no one actually agrees with this! If a person wants to be a bit racist, apparently this entire belief goes straight out the window, and we need the 9 judges from On High to come down and decree with their gavels and Oyezes that we need to give up our rights to property because it interferes with interstate commerce!!!!

The entire argument is hypocritical, and we can't have it both ways: if you want to prevent people from being racist at their private businesses, then you have given the government the right to go about demanding that private property owners enforce any politically popular belief that may enter the discussion at the time.

Either private property is sacred (do the 2^nd, 3^rd, 4^th 9^th and 10^th amendments ring a bell?), or it isn't. You can't have both.

Well... What's the Constitution say?

Article 1 Section 8 gives no power to the Federal government to ban racist practices from private industries. Such an act is also neither prohibited nor granted to the states in Sections 9-10. Thus, using the 10^th amendment, we can see that the power is not granted to government to regulate what the local racist bar tender does on his property.

But this is just the "pre-Civil War Constitution", so let's see what has come about since. (Some people claim that the CRA and other Constitutionally-related amendments weren't passed legally - some have pretty good arguments - but I won't rely on these arguments).

Well, the 13^th amendment destroyed slavery - an institution that was subsidized by the government. It's kind of strange that the government went straight from "the runaway slave" acts to complete abolition: one is a subsidy of slavery, and one is the absolute abolishment of it. Anyway, the 13^th amendment was long overdue, but it doesn't prevent any local business owner from being racist.

And, the only other super-relevant clause in the Constitution would be the 14^th amendment. But it doesn't ban the practice either! Most of the 14^th is merely a kick to the South's crotch, and so most of it is completely unnecessary to our current discussion, except this part:

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.

... and after reading it, all that I see as relevant is that the governments can't take their rights taken away. In fact, if you look at the 14^th it actually buttresses my argument: the "states [can't]
deprive any person of ... property". So, we should expect the right of the local racist to do with his property as he sees fit to remain intact!

Let me repeat that: the 14^th amendment -- the amendment that has been used to pass the CRA of 1964 -- actually argues that people should be allowed to be racist. I don't support racism, I don't want racism, I've felt the stings of racism -- but it's Constitutionally protected on private property (to a degree: no slavery).

I believe the entire argument for Constitutionality is simply that A1 S8 let's Congress "regulate Commerce... amongst the several States". But... that's quite a stretch by anyone's imagination. Regulate commerce means banning the local racist's bar from excluding a minority? really? ... then does it also ban me from growing my own tomatoes and driving them to another state to eat?...

...Does it prevent local business owners from banning the importation of food from Arizona to protest the recent illegal immigration law? Isn't that a sort of -ism? -- "Anti-anti-illegal-immigration-ism" or something. And shouldn't the Supreme Court prevent people from interfering with interstate commerce due to this 'politically fueled, anti-racist' sentiment?

Anyway, I'm pretty sure that anyone who's read the proceedings at the Constitutional Convention would agree that this is not what the interstate commerce clause means. If you think about what system of government was in place before the Constitution -- the Articles of Confederation -- you can see that there is practically no way that "allowing the federal government to step in and regulate private property in any way" would even be considered.

(I would cite the 15^th amendment, but it only applies to voting, which in no way pertains to this argument pertaining to private property)

It's expensive to be racist, thus it would be less common

Business owners often get a bad rap for "only caring about the bottom line" and "only caring about money". Now, while I would say that this isn't necessarily true, I will agree that it is true in the vast majority of cases. But... what's so bad about this?

Business owners who 'only care about profits and money' would be much less likely to be racists! Which method would get you more money:

1. Telling half the potential consumer base (minorities, that is) to stay away from your business, but to be able to charge twice the price to those consumers who are allowed to come into your store
2. Allowing anyone to come into your store and buy things at competitive prices.

I think the obvious 'looking out for the bottom line' business paradigm is obviously number 2. With number 1, sure you're charging more money for your product, but that just further alienates those people who don't want to shop somewhere just because they're racist. I mean, sure, there are people who would see "no blacks allowed" and say 'yee haw! Me gonna shop thar from now on! yessirree!!", and then spit in a spittoon. But surely the people who would be willing to pay two to three times more for a hammer in a racist store as opposed to the same hammer in a non-racist store would be slim-pickings.

Also, it would be expensive for the simple reason that hiring people to work there would be more difficult. When you automatically restrict your potential staff by a large percentage (all minorities combined in the US is about 25%) then you will likely have a harder time finding people willing to work cheaper (in fact, you'd have about 25% harder time trying to find a cheaper worker). If a minority worker is willing to work for $6/hour, but the average racist joe wants to work for $7/hour, racist-manager how loses $1/hour being racist.

Sure, perhaps some people would willingly work for a cheaper amount of money if only they could work in a super-racist store: perhaps members of the KKK or the Neo-Nazis would willingly take a $1/hour pay cut 'just to see the looks on those dern *racial slur*'s faces!!', but ... they'd be losing $1/hour!! They'd instantaneously be punishing themselves to be racist.

Racism is more expensive than tolerance. Thus on an open market, even if it were legal, it would be much less common. There would surely be a niche market - but it would be small.

Wouldn't it be better for everyone to advertise your racism?

I know this is a weird one, but... wouldn't it be better for everyone involved to be able to broadcast your racism? If I were a minority (I'm not, by the way - but I am marrying one), I would think that I would want to know who hates me! What's the old pearl of wisdom? "Know thine enemy"?

If I were trying to find a decent restaurant, and I had the choice between four restaurants:

1. Racist and shows it
2. Racist but doesn't show it
3. Tolerant and shows it
4. Tolerant but doesn't show it

I think it would be an easy choice to know that I would prefer #3. Not only are they tolerant, but I know that they're tolerant -- I wouldn't expect any spit-soup... at least not just because I were a minority.

Which of those four would I be less likely to attend? well, obviously #1: the one that is not only racist but is blatantly racist. If I went in there, I would expect to receive spit-soup.

In this way, we can think of signs that say "No Blacks Allowed" as simply billboards that broadcast "I'm a racist. If you don't want spit-soup, eat somewhere else". And we can think of the Civil Rights Act of 1964 as a ban on free-speech that prevents people from freedom of information: In a sort of twisted way, we can see the CRA of 1964 as a tyrannical piece of legislation that goes against one of the glorious pillars of western civilization, freedom of speech.

It seems like quite a stretch, and surely many of my readers are thinking "Jeez... this guy has to be a racist!", but let me remind everyone that I'm working to become a foreign language teacher and have spent the last four years in a foreign country as a minority. I know how it feels to have people stare at you for no reason except that you're white.... er... a minority. It's weird.

But isn't that what the CRA really does? It bans people from broadcasting that they are going to spit in a minority's soup! It's like that scene from that hilarious movie "Super Troopers", where the fat cop buys a burger and the guy behind the counter says "Cheeseburger... it's for a cop" and then he has to deal with the knowledge that someone might have spit in his burger. The CRA makes it more difficult to determine if a restaurant location is going to give you bad service in advance! (PS - I'll link a Super Troopers movie trailer at the bottom of the article. It's hilarious!)

The final argument: why is my home allowed to be racist, but not my restaurant?

I really fail to understand why the CRA of 1964 allows the federal government to come in and make my business non-racist, but my home is allowed to be racist. Aren't they both my property? Aren't they both just simply land with a building on top and one says "Restaurant" on it? Aren't they both owned by (hypothetically) me? Aren't they both private property?

If a business isn't private property, then why am I not allowed to bring a drink into a local movie theater? If my home isn't private property, then why am I allowed to prevent the police from searching it unless they have a warrant?

Am I allowed to hang a "I hate *insert racial slur*" poster in my home? Am I allowed to do the same in my restaurant? Why is it different? -- I own both, they are both buildings that I have to pay taxes on, I'm allowed to make rules for proper behavior in both of them...

... this doesn't make any sense. If you say that the federal government can come in and force me to not be racist in my restaurant you have to be saying that the federal government can come into my home and prevent me from being a racist. There just isn't an alternative response.

And where does it end? This part of the CRA of 1964 (banning racism in private property), as we've seen, has little to no backing in the Constitution -- in fact it's actually argued against in the constitution... so why does it pertain only to racism? If the political tides shift, and we all start to say that guns are bad, couldn't we do the same thing? Ignore the part of the Constitution that actually argues for gun ownership and just pass a law that argues that guns are now illegal in private property?

Conclusion

I don't know Rand Paul personally, but I have been following the Mises Institute and Lewrockwell.com for quite some time, and from what I can gather, the entire argument is simply that Title II of the Civil Rights Act of 1964 is Unconstitutional, and even though it sounds nice and is probably a decent idea, it's not legal.

As I've tried to show in this article, title II of the CRA of 1964 is simply unconstitutional, and it might not even be a good idea (after all, there's an exception in it for private clubs).