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Why Rand Paul is wrong about Title II

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(Read caption) Republican U.S. Senate candidate Rand Paul addresses a luncheon meeting of the Lions Club in Bowling Green, Ky., on May 25. Paul's statement that he does not support Title II of the 1964 Civil Rights Act has caused controversy for the politician.

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Rand Paul won the Republican primary in the Kentucky Senate race and almost immediately stepped into a big pile of steaming controversy by telling Rachel Maddow that he did not support Title II of the Civil Rights Act of 1964. Since then few voices have defended his statements on Maddow’s show, with John Stossel as one of the rare exceptions. In his recent Christian Science Monitor op-ed on this topic, Sheldon Richmond defends Paul’s statements saying, “individuals are either free to do anything peaceful or they are not.” I reject libertarian objections to Title II precisely because I agree with the quoted remark: individuals are either free to do anything peaceful or not. (For the record: I’m not a libertarian, but the quoted statement is a logical truth, not a political program.) Black and white people in the recently-Jim-Crow South would not have been free to associate without the assistance of Title II.

There was quite bit of non-state violence in opposition to integration. The murder of Medgar Evers is an historical representation of the problem. Harper Lee’s “To Kill a Mockingbird” is a fictional representation of the same problem. Thus, an entrepreneur who served black and white customers indiscriminately might have been at personal risk of injury or death. Non-state actors used coercion to prevent free association. In that context, it makes sense to defend the right of association by prohibiting “places of public accommodation” from discriminating on the basis of “race, color, religion, or national origin.” The law protected entrepreneurs by making it hard for persons who prefer forced segregation of the races to identify fitting targets of racist violence. It would have been better if no coercion had been applied either by state actors or non-state actors. But that option was not available. Title II was a reasonable pro-liberty measure to reduce coercive restrictions on the right of association.

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We cannot measure how much coercion would have been applied to prevent blacks and whites from associating had Title II been absent from the bill. We cannot measure it the way we can measure the circumference of the earth. Part of the problem is that coercion includes the threat of violence and the threat of non-state violence is vague and hard to measure. It is very real nevertheless. Thus, it might be possible to challenge the empirical grounds of my argument. But I think the history of the civil rights movement contains enough episodes of segregationist violence to support the hypothesis that Title II reduced coercive limitations of the right of association.

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