Strengthening Constitutional Self-Government

No Left Turns


Time to Move On?

Rich Lowry takes Rand Paul to task for believing "that it's never too late to re-litigate 40-year-old historic milestones."  Paul believes that the federal government may ban racial discrimination by the government, but he's questions its right to impose the same requirements on private individuals, clubs, and corprations.  Paul has walked back from his position, arguing, prudently, that such an expansion of federal power was necessary in the 1960s. 

That raises the question of whether it is still necessary.  America has elected a black president.  Racial milestones in America have become so commonplace that we seldom notice them anymore.  Prejudice still exists, but it's nothing like it used to be.  It is below the level faced by Jews, Irish, Italians, Poles, and other groups who integrated successfully without help from the federal government. Given that reality, it is time, once again, to restore to corporations, clubs, and individuals their right to choose with whom to do business and to spend time with?

(An added bonus of such action is that it would save us a good deal of money, by rendering countless federal, state, and local employees unnecessary. The same would be true at colleges and corporations.  How much money does affirmative action and racial-compliance cost the U.S. economy each year?  Are we post-racial enough to do well and good at the same time?)

Categories > Race

Discussions - 8 Comments

"That raises the question of whether it is still necessary."

Answer: No

Reality: Various grievance groups will insist it be maintained since, after all, the claim of racism is a convenient tool for advancing agendas.

Rand Paul would be well advised to turn his gaze forward, not backwards. The voters have no interest in creating a new problem when so many existing and future problems are on the table.

While every little bit helps, if I am not mistaken, financing the regulatory apparat (police forces aside) consumes only a very small proportion of public revenues. The trouble regulatory apparat creates is derivative of the pathologies it imposes on private parties, not the accounting costs of its operation.

It is below the level faced by Jews, Irish, Italians, Poles, and other groups who integrated successfully without help from the federal government.

I think you could say the Catholic Irish did integrate without federal assistance and that social trends were such that southern and eastern European ethnics were doing so and would have completed doing so in the absence of the legislation in question.

The Jews represent an interesting case of an affluent group that faced (prior to ~ 1965) pervasive discrimination in certain rarefied realms and responded by creating a set of parallel institutions which they dominated (e.g. the New York County Lawyers' Association v. the Association of the Bar of the City of New York).

The Scotch-Irish represent an interesting case of a decidedly non-affluent group who have faced no discernable discrimination at all subsequent to the colonial period.

As far as any business catering to the public, I believe the proper basis is an extension of the non-discrimination common law rulings for common carriers--i.e., "if you use the King's Peace and/or King's Rivers and Roads to do business, if you rely on the King's Magistrates to enforce your rights to proper and prompt payment, if you enjoy the protection of the King's Law to preserve your property rights, if you enjoy the ability to be able to have a say, via Parliamentary elections, in keeping your money or giving it to the King's government, then the King says you will take all his subjects as passengers. Period. This is because it prevents hate and discontent from arising in the land, which pleaseth him immensely...."

Viewed in this light, then requiring businesses to not discriminate is a proper function of government, and somewhat logically (as Ramseh Ponnuru pointed out over at National Review) the Federal government could require states to extend this sort of equality under the law via the 14th Amendment.

My only concern is that the above reasoning can be abused immensely, as it opens up the road to any thing that can be viewed to "prevent hate and discontent in the land". Which is why I would prefer the authority to require to states to do as they were told via the Civil Rights Act be a little more explicit in the Constitution.

Secondly, to all the above, private clubs, not catering themselves to the public, clearly should be able to do as they dang well please. And should be able to be judged accordingly...

Wow, was that a hatchet job by right? With the liberal media do we really need right on right crime? It seemed the author would have prefered the mainline right guy win the nomination, and put down the beliefs of the ' tea party' people as childish, although it was all cleverly vieled just enough.

"American foriegn-policy concensus?" is this anything like the global warming concensus that al gore spouts on and on about. When something can not be defended by reason then we run towards the idea that group think makes right?

Was every business considered a "common carrier"? Did the rule only apply to transportation? Did it extend to roadside inns? Did it apply to urban-based manufactures? What about a store or a home-based shop? In short, did it have the same kind of elastic meaning that the Court has ascribed to the interstate commerce clause?

Mr. Adams--

Your questions are actually beyond my knowledge. I merely bring it up because I consider it a logical justification for the CRA's provision.

Now, I consider expanding the common carrier provisions to what you talk about to be fully within the power of state governments (as limited by their constiutions).

It is the ability of the federal government to do so I'm still not quite satisfied with--the 14th amendment is a better hook than than the interstate commerce clause, but at the end of the day Congress is still telling the states that basically it is saying equal protection under the law is now "this", not "that", as formally before, and create the laws necessary accordingly. Which is a bit different, in a significant way, from saying that existing state laws cannot discriminate. Both are safeguarding liberty, but one is a positive sense, the other in a negative.

The significant way, of course, is that the fiat method of positive action is open to abuse, as the reasonable and long-needed righting of unmitigated wrong becomes the capricious tyranny of a brief-lived majority building ill-considered fairy castles in the sky tomorrow. For it is not in the ken of man to be always right. Not in the ken of any man, or any group, or any institution.

Constitutional questions aside, the difficulty with civil rights legislation as implemented (and often as written) is that it was not limited to the systemic abuses that were visited on the black population (and, in some areas, the aboriginal population) but to which the remainder of the population was not subject. As such, the removal of discretion in social life was far more extensive than it needed to be and the architecture of race relations law came to be a tool to pursue dubious social engineering schemes. You needed to address the systemic abuses:

1. The corruption of the police and the courts;

2. The neglect of the negro schools and the imposition of severe inconvenience on black parents by denial of access to proximate schools.

3. The chicanery in the administration of voting regulations;

4. The pervasive insults incorporated in the denial of service to or the physical corralling of blacks on common carriers and in retail trade and public agencies, some of which was required by law.

5. The refusal to offer public employment on equal terms.

Instead, they had a whole raft of other protected categories, harassed private employers and landlords whose inclination to treat people unfairly was seriously circumscribed by commercial imperatives, nearly eliminated useful practices like employment and entrance examinations, trashed academic and behavioral standards at selected locales, seriously compromised the autonomy of private associations and popular understanding of life in a free society, and rendered a salient subset of the black population patronage recipients unable to say to themselves with confidence that they were as able as their paper accomplishments would suggest. They also scattered patronage to subsets of the population (e.g. recent immigrants from Mexico) who had no history of maltreatment to which the ancestors of most of the population could not lay claim . Also, the quantum of honesty in our public life has undergone a decline as diversicrats in the civil administration and the judiciary concocted excuses for ignoring black letter law.

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