Liberty, Government, and History

As usual, Andrew Sullivan puts forward a very nuanced, careful, thoughtful analysis of the whole issue of Randy Paul's libertarianism and the American civil rights movement.  It's why I like Andrew Sullivan's blog, The Daily Dish, so very much.

This [Rand's interview with Louiseville Courier Journal] is why so many feel contempt for Rand Paul. But it's one reason I am glad he will be more integrated into the American conversation. I don't agree with Paul on the Civil Rights Act because I believe that the legacy of slavery and segregation made a drastic and historic redress morally vital for this country's coherence, integrity and unity. But was the Act in many respects an infringement of freedom? Of course it was.

To bar private business owners from discriminating in employment would have been an unthinkable power for the federal government for much of American history. Now it's accepted as inevitable for almost everyone who can claim to be treated unjustly for an aspect of their identity irrelevant to a job. What I believe was a necessary act to redress a uniquely American historic evil became a baseline for every minority group with a claim to grievance.

To my mind, this is settled law and should remain that way. But it is not without cost to liberty (as I argued in Virtually Normal). And a real libertarian will feel some qualms about it. Not because they are racists or homophobes (although some may be). But because a truly principled defense of individual freedom will inevitably confront the huge role government now plays in policing fairness in what were once entirely unfair private transactions. You could argue, and I would agree, that the Act expanded freedom immensely overall. But you have to concede, I think, that it also restricted freedom for a few.

Bork made this case in The New Republic as the Civil Rights Act was being debated. It's a principled argument, and should be treated that way, without the usual stigmatization. There was a very solid constitutional case against the 1964 Civil Rights Act, which was why Goldwater opposed it. But as an empirical matter, I think the history of race in America proves the inadequacy of pure freedom to redress the darkest of human impulses - to own, torture and terrorize an entire race.

Paul's entirely abstract intellectual argument wrests pure principles out of an actual society, with actual historical atrocities, violence, oppression and contempt. That's why I cannot be a libertarian the way some others like Paul are. I do not believe you can reify an abstraction like liberty and separate it from the context - historical, cultural, moral - in which it lives and breathes and from which it emerged. I can believe in freedom and believe in equality of opportunity but I should be mature enough to see when there has to be a compromise between the two - and decide. On the issue of race in America, the libertarian right was proven wrong - morally, empirically wrong. Giving up the ancient and real freedom to discriminate was worth it - indeed morally and politically necessary for America to regain its soul.