Legal Commentary

The ?Racist? Charge

By David Bernstein

One thing that?s been especially appalling about the Rand Paul controversy is how quick many liberal commentators (including people who frequent the comments section on this blog), have been to accuse not just Paul of racism, but also anyone who takes the libertarian position on antidiscrimination laws, i.e.., that the government itself may not discriminate, but the government should tolerate private discrimination. Admittedly, someone who takes the libertarian position on this but no other issues, as many did in the South in the early ?60s, is suspect. But if someone takes a consistent libertarian position on public policy controversies, i.e., that the government should limit itself to banning force and fraud and otherwise not interfere with private behavior, it?s hardly an indication of racial animus to take the exact same position with regard to discrimination. (And, needless to say(?), in 2010 antidiscrimination laws do not primarily deal with race in any event [think age, sex, disability, sexual orientation, religion, and so on]. Moreover, the libertarian position is actually helpful to advocates of affirmative action in the private sector, which is the most ?live? current issue in antidiscrimination law with regard to race).

That, however, is not why the liberal charge of racism is so appalling. Rather, it?s because this is the exact same kind of dishonest, malicious rhetoric that liberals face from conservatives when they take principled positions on issues of importance to them. Consider the liberal defense of Communists? free speech and employment rights in the 1950s; their critics accused them of being Communist sympathizers, if not outright Communists. When the ACLU defended the Nazis? right march in Skokie in the 1970s, their critics accused them of giving aid and comfort to Naziism. When liberals defend the right to abortion, they are accused, among other things, of wanting to reduce the population of minority babies. And when liberals stand up for the due process rights of terrorism suspects, they are accused of being American-hating jihadist sympathizers.

One might think that liberals are/were wrong on one or all of these controversies, and criticize them for being wrong. But the criticism they faced, and face, for taking unpopular, principled positions that their critics thought/think had/have very negative social consequences was/is grossly unfair and repugnant. You would think, incorrectly, that liberals wouldn?t pull the same c*** on libertarians.

UPDATE: I should hasten to add that I?m not claiming that all liberals, or even most liberals, have or would accuse libertarians of racism for taking the libertarian position on discrimination laws. I have seen enough examples, though, to think it?s worth commenting upon.

Full post as published by The Volokh Conspiracy on May 22, 2010 (boomark / email).