As the Geek parses the manifold repetitions of the Sin Of Rand Paul, it appears to him that, despite the protestations that no one really, really believes that the Kentucky ophthalmologist, Tea Party adherent and Republican senatorial nominee is a racist, the subtext holds to the contrary. In a more inclusive way. The implication or, at least, the inference the reader is encouraged to draw, is any person who subscribes to libertarian ideas in the raw must harbor racist inclinations deep in his heart of hearts.
Dr Paul in what was obviously a moment of politically damaging candor suggested that the employment of the cudgel of federal legislation in the interest of compelling any and all private enterprises offering any sort of accommodation to the public must admit all comers without regard to, inter alia, race was an arguably illegitimate extension of the interstate commerce act. This implies that the free operation of the market would be not only the more constitutionally correct but, ultimately, the more effective way of countering prejudice in the general public.
To many minds the Paul interpretation constitutes a rejection of the basic truth: In 1964 too many Americans were too blighted by racial prejudice to assure that the market could possibly operate in a color-blind way. That was the case in 1964. It is possible that without the policeman's truncheon of the Civil Rights Act, the same dynamic would continue to apply today.
The truth of the two contending propositions will, of course, never be known as history is a one way street. In a real sense the truth doesn't matter. Congress' moving finger, having written the law, has moved on to write others. Others which are predicated upon the interstate commerce clause. Others that may, as Dr Paul argued with respect to the Civil Rights Act, stretch the intent of the authors of the Constitution beyond all recognition.
The Paul Interpretation says nothing about race, per se. It says a great deal about the fundamental tension which has emerged in an evermore unmistakable way between the role and integrity of the market on the one hand and the power of the government to compel acceptance of whatever policy dictate occupies governmental attention at any particular moment.
The Paul Interpretation does not seek to roll the calender back to the days of Jim Crow. Rather, an honest appraisal of Dr Paul's comment demands that one question the legitimate limits a government may place upon the individual's sovereignty, on the individual's right to determine what will be done with or on property of his owning. Further, Dr Paul calls into question the right of the central government to rule by what is essentially legislative fiat; its legitimate authority to use the interstate commerce clause to give Constitutional color to any enactment it might make.
There are very real grounds to doubt the constitutionality of the many, varied, and quite extensive ways in which Congress has used the interstate commerce clause as a great and highly elastic rug under which any amount of all types of legislative dirt might be swept. Even the several critical Supreme Court decisions which have provided judicial blessing to the extensive use of the interstate commerce clause do not make the usage either constitutional or legitimate.
(Before going on, full-disclosure-in-blogging requires the Geek to admit that he has been refused entry to facilities offering public accommodation for reasons ranging from his Apache ancestor inspired long braids, to the presence of aesthetically disturbing scars on his chest, abdomen, and arms--this at a public beach in southern California the year after the Civil Rights Act was passed.)
The market is a notoriously inefficient mechanism. It is driven by any number of motives, many of them emotional and irrational and base in the exteme. The only thing positive which may be said about the marketplace is that the results of its morass of transactions, its flurry of emotions, irrationalities, and base motives as well as those of a contrary sort far surpass in providing benefits to people any other system yet contrived by fertile minds over the years.
In 1964 and today there are any number of Americans who would deny service, refuse the custom or patronage of potential customers, because of matters extrinsic to the proposed transaction. People would be turned away because of race, ethnic origin, gender, sexual orientation, age, disability or even aesthetics. Landlords would reject potential tenants. Shopkeepers would refuse to sell. Restaurant owners to dish up the hash. Hotel owners to provide beds for sleep. The list of potential discriminatory acts is well neigh onto endless.
On the other side of affairs, customers have always had the untrammeled right to refuse their custom to any particular purveyor. Potential patrons have never been denied the free right to refuse patronage. No Congress has ever used the interstate commerce clause to compel buyers to buy, the hungry to go to any particular beanery, the tired to rest their weary heads at any given hotel.
In that sense the playing field of the marketplace has never been level. Indeed, it does not overly sharpen the point to note that the rights of all of us, any of us, to refuse to shop, eat, sleep at any specific offerer of those goods and service has always existed as a sovereign means to compel socially necessary outcomes such as an end to race based business practices.
Imagine for a moment that instead of passing the Civil Rights Act of 1964, the federal government and other levels of sympathetic government had used their combined powers of the "bully pulpit" to encourage citizens to put the ideals of this nation into practice by patronizing only those who offer public accommodation without consideration of race. Imagine a media blitz that went on for weeks, months, not only portraying the ideals involved but the human tragedies, great and small, which resulted from racist practices and emphasized the power of the individual making choices of where to shop, where to eat, where to sleep, where to go to the movies, what club to join--or quit. The powers of persuasion historically have outweighed in effectiveness the powers of compulsion--even if the process is both longer and messier.
The marketplace is not the sole creature of those who own businesses. It is the creature of all of us who make the decisions on what to buy as well as what to sell, where to eat as well as what to serve, where to sleep as well as what bed to place in the room. In short, the customer is equal owner of the market along with the seller. Buyers who use their freedom to choose finally hold the whip hand. That is provided the government in well-intentioned acts does not short circuit the process.
This is what Dr Paul's comment was actually pointing at. It is for this reason that the Geek sees his criticism of the Civil Rights Act as both well taken and an important launching pad for a free wheeling examination of the ways in which Congress and Supreme Court (and Presidents) have stretched the interstate commerce act far from its narrowly constructed goal of assuring that the central government did nothing to interfere with trade among the several states and did whatever it could to facilitate and encourage that trade and the marketplace in which trade occurred.
Instead of acting to facilitate trade, expand the marketplace, the central government in recent decades has used the interstate commerce clause to restrict freedom. The interstate commerce clause has been used to prohibit farmers from growing certain crops in designated amounts even for personal use; it has restricted the rights of businesses to conduct business; it has even been used most recently as the basis for requiring Americans to buy a certain category of product in a given amount under penalty of law.
Dr Paul in common with libertarians generally seeks to restore the marketplace to its initial pride of place by inhibiting the imperial pretensions of politicians who would use the interstate commerce clause to cover any of an endless multitude of sins. All Dr Paul and his fellow libertarians are asking of the rest of us is for We the People to use our power of choice in the political marketplace. Nothing else. But, that is more than enough.
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