So far, I think, the controversy about Rand Paul’s remarks can be boiled down to three questions.
First, are his views on the Civil Rights Act any more relevant to today’s politics than his views about the Magna Carta? Unlike some of my Corner colleagues, I think the answer to this question is an unequivocal yes. If his philosophy of government precludes support for the Civil Rights Act, that is something that voters might legitimately hold against him (or, less likely, hold in his favor). That is especially the case given that Paul is running largely on his philosophy of government, and that this philosophy is considered by many people to be at cross-purposes with the advancement of black people.
Second, are the Civil Rights Act’s provisions touching on private-sector conduct constitutional? I don’t think that those provisions can be defended as an exercise of the congressional power to regulate commerce among the states because they regulate so much activity that is purely intra-state. I think they can be defended as an exercise of the congressional power to enforce the Fourteenth Amendment’s guarantee that no states will deprive any person of the equal protection of the laws. On its face, that guarantee seems only to bar types of state action. But recall that it was state governments that imposed Jim Crow on the private sector in the first place, as Robert A. George reminds us.
In my view, Congress had the power to block such state actions as soon as the Fourteenth Amendment was enacted; but the Supreme Court took a different view. By the 1960s congressmen could reasonably conclude that the only way to enforce equal protection was to uproot the entire system of white supremacy.
Third, even if constitutional is it right to deny people the freedom to discriminate? I think here again the force of circumstances is overwhelming. I don’t think that there is a right to discriminate on the basis of race or that there is a right to be free from such discrimination. It may be that under particular historical and social circumstances the full freedom to engage in such discrimination, however unfair or immoral, could be indulged. Making the case that those circumstances obtained in the 1960s seems extremely difficult.
On all these questions, however, a libertarian, or a conservative under the influence of libertarianism on these questions, might have to give different answers. The controversy thus reminds me why I am not a libertarian and on some issues reject its influence.
Of course, as Rich already noted, American conservatives historically gave different answers than the ones I have given. I recommend William Voegeli’s essay on the topic of that sad history.