Legal Commentary

Everyone is by now aware of Rand Paul's comments criticizing Title II (the public accommodations provision) of the Civil Rights Act of 1964, as well as his very quick walkback that he does not endorse repeal of the act and would have voted for the package deal had he been a senator in 1964. Mark Kleiman wishes Rachel Maddow had pushed Paul for his views on Title VII as well; after all, the logic of his argument ("I do believe in private ownership") means businesses have a right to discriminate in all their business dealings, customers as well as employees.

But I also wish Maddow had pushed him on a different issue: Whether Paul is criticizing not only the 1964 Act (as well as the ADA and, it follows, the ADEA), but also state and local laws prohibiting discrimination in public accommodations (as well as employment, etc.) Every state and most major cities has some form of legislation and they often are broader than federal law; in New Jersey, Little League Baseball is a public accommodation. When most people (certainly in the media and I believe most voters) think and speak in terms of overreaching government, they tend to think and speak in terms of an overreaching federal government--in other words, in federalism terms; that rhetoric resonates at a visceral and political level. I am not sure that most voters think and speak in terms of all overreaching government at any level and I am not sure that pure libertarian rhetoric would resonate at the same level. And certainly the media tends to discuss "government" as "federal government" only. So I would have liked Maddow (and other journalists, as well as his Democratic opponent) to push back on whether he is arguing for an unadorned liberty of businesses to discriminate as to their customers (and, it follows, their employees) and a prohibition on any efforts by any government to prohibit such discrimination, or only on a federalism-based liberty against federal efforts. I believe I know his answer. But I would like to have heard him make the argument. Because I am not sure the pure-libertarian argument would play as well politically with the public as the federalism argument.

By the way, I am with Bill that I do not think it is a bad thing that Paul is making these arguments as a major-party candidate for office. What is important is that the press, his opponents, and Democrats generally push him on the ideas not only for shock value (which is some of what has come out of the Maddow interview), but to give them a full airing and to give the voters and the public a real chance to hear them and accept or reject them.