A good analysis of Ron Paul's racism

Ron Paul's Position: Against Civil Rights Act of 1964 and Against Segregation Laws

by Professor Will Huhn on May 14, 2011

in Commerce Clause,Constitutional Law,Wilson Huhn

Ron Paul announced yesterday that he would have voted against the federal Civil Rights Act of 1964 and that he would voted against state laws requiring segregation of the races. Consistent with his libertarian principles, Paul elevates property rights to a preferred position under the Constitution.

Republican presidential candidate Ron Paul stirred a controversy yesterday. According to Michael O'Brien of The Hill, Paul says he would have opposed 1964 Civil Rights Act. In an interview with Chris Mathews of MSNBC, Paul disclosed that he would have voted against the Civil Rights Act of 1964 which ended racial discrimination in private businesses. Under that law businesses that are open to the public may not discriminate against their customers on the basis of race, and businesses whatever their nature may not engage in employment discrimination.

Paul claims and no doubt believes that this does not make him a "racist" and he is quick to claim victimhood if anyone criticizes his position – "You are calling me a racist!" is his ready response to those who disagree with him. He maintains that he is not in favor of racial discrimination – he is instead merely in favor of property rights. He believes that under the Constitution the government may not interfere with the way that a person or a corporation operates its business even if it is engaging in acts of racial discrimination.

Here is the problem. Life requires us to make choices. A person cannot simply choose to be in favor of one value or principle without acknowledging that myriad other values and principles will be affected by that choice. Libertarian principles are often inescapably in conflict with egalitarian principles. A person who stands foursquare for a person's or a corporation's liberty to discriminate on the basis of race, religion, gender, or sexual orientation is to that extent opposed to the competing principles of equality on the basis of race, religion, gender, or sexual orientation.

Mr. Paul cannot escape this dilemma any more than any of us can. The interpretation of the Constitution is constantly characterized by balancing a welter of fundamental American political and social values – freedom versus security; federal power versus state sovereignty; the free flow of information versus the harm that may result from expression; the duty of the government not to promote or advance religion versus accommodation of religious practice; the protection of the rights of the accused versus the need for timely and accurate determinations of guilt or innocence; the duty of the commander-in-chief to defend this country versus Congress' prerogative to declare war and make rules for the governance of the armed forces; and, in this case, liberty versus equality.

I cannot find any logical inconsistency in Representative Paul's opposition to the Civil Rights Act of 1964. Moreover, his motives are purer than those of others who would cheerfully vote to repeal this law.

However, I do find his position to be intellectually weak and legally unpersuasive because of his failure to admit that there are competing constitutional principles at stake – his failure to acknowledge that no constitutional principle is absolute – his failure to perceive that "property rights" or "bodily integrity" or virtually any other constitutional principle must be weighed against other considerations.

In 1964 the Supreme Court quite properly determined that Congress has the power under the Commerce Clause to enact the civil rights law ending racial discrimination in employment and services by private businesses, and found that this statute does not violate any constitutional rights of propertyholders. Mr. Paul is able to reach the contrary conclusion because he takes into account only one constitutional principle, only one side of the argument. Ideologues and fundamentalists of any stripe find constitutional interpretation to be easy. Only those who are willing to consider all sides of a question find it difficult.

Professor Huhn has taught Constitutional Law at the University of Akron for over a quarter century. You may access his websites on Constitutional Law and Health Care Financing Reform for additional materials and information about those subjects. Drafts of his scholarly work are available from his author page at ssrn: http://ssrn.com/author=83790

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