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How Rand Paul Should Have Answered the Lunch Counter Question

The question was simple enough: Should private businesses have the right to refuse service to someone because they’re black?

That was the essence of the question liberal MSNBC “hostess with the leastest” Rachel “Mad Cow” Maddow put to libertarian-leaning Rand Paul after his stunning GOP primary victory in the Kentucky U.S. Senate race against the Republican Party’s establishment candidate a couple weeks ago. And Paul’s answer – or more accurately, non-answer – has been the source of much intellectual and political discussion ever since.

Let’s first dispel a couple notions proffered by those on the Right since the brouhaha flared up – that (1) Paul shouldn’t have appeared on Maddow’s show since she’s a known anti-conservative bleeding heart liberal, and (2) that Maddow’s question about the 1964 Civil Rights Act was a liberal ambush.

So what was Paul doing on Maddow’s show? Well, most people probably don’t know this, but Paul had been on Maddow’s show before and the exchanges were polite and professional. In fact, Paul actually announced his U.S. Senate candidacy on Maddow’s show a little over a year ago. So why wouldn’t he go back on?

Secondly, this was no ambush.

The issue was raised last month in an editorial board meeting with a local newspaper in which the simple question was asked, “Would you have voted for the Civil Rights Act of 1964?” That was followed up on the morning of the Maddow interview in an NPR interview in which Paul was asked whether, had he been around back then, he would have “voted with Barry Goldwater against the 1964 Civil Rights Act.”

So the question should have come as no surprise. It’s a legitimate question to ask of someone endeavoring to become a United States senator. And it was straight-forward enough.

The problem was, despite knowing the question was going to be raised, Paul was not prepared to answer it in a straightforward manner. So this was not a deficiency in philosophy; it was a deficiency in preparation.

Paul danced around the essence of the question and issue, but never really answered it. The question isn’t – and wasn’t back in 1964 – whether or not government discrimination should be outlawed. It should have been….and it was. But the question of outlawing discrimination in private businesses – such as lunch counters – is and was a much thornier question.

To answer that question, it’s important to understand that main purpose of the 1964 Civil Rights Act wasn’t so much to end voluntary discrimination by private businesses, but to end state and local “Jim Crow” laws in which the government MANDATED discrimination. Because of those Jim Crow laws, private restaurants couldn’t allow black folks to sit down with white folks at their lunch counters even if they wanted to.

To the extent that the Civil Rights Act of 1964 put an end to government-mandated racial discrimination, it was uncontroversial and universally supported, including by Sen. Goldwater. However, it was the issue of the federal government’s constitutional authority to extend a ban on government-mandated discrimination laws to a ban on discrimination in private businesses that resulted in Sen. Goldwater’s “No” vote.

“I wish to make myself perfectly clear,” Sen. Goldwater stated on the floor of the United States Senate on June 18, 1964. “The two portions of this bill to which I have constantly and consistently voiced objections, and which are such overriding significance that they are determinative of my vote on the entire measure, are those which would embark the Federal government on a regulatory course of action with regard to private enterprise in the area of so-called ‘public accommodations’ and in the area of employment.”

“I find no constitutional basis for the exercise of Federal regulatory authority in either of these areas; and I believe the attempted usurpation of such power to be a grave threat to the very essence of our basic system of government, namely, that of a constitutional republic in which fifty sovereign states have reserved to themselves and to the people those powers not specifically granted to the Federal government.”

Goldwater concluded, “My basic objection to this measure is, therefore, constitutional.”

Had Rand Paul been better prepared and informed as to Sen. Goldwater’s objection to the Civil Rights Act, he could have easily answered the question by saying something along these lines:

“Rachel, we now have a federal government which not only tells private employers who they can and cannot hire and for what reasons, but how much they must pay their workers as well as how much family time off a worker must be given. To paraphrase an old saying, the path to socialism is paved with well-intended federal regulations.

“So in answer to your question, yes, I would have voted with Sen. Goldwater in 1964 – not because I support discrimination, but because I support our Constitution. That said, the Civil Rights Act is now the settled law of the land, upheld by the Supreme Court, and I will support it as a Member of the Senate while continuing to fight the federal government’s unconstitutional effort to force every American in this country to buy a health insurance policy.”

Next question.