Writing about Rand Paul's comments on the Civil Rights Act of 1964, Bruce Bartlett makes a valid point that he then obscures with an unhinged attack on foolishly consistent libertarians, whom he bizarrely accuses of complicity with state-enforced racial discrimination. First the valid point: Given the social and cultural environment created by centuries of government-backed slavery and oppression, segregation in the South would not have been eliminated simply by withdrawing state support for it. Even if every racist law and government policy were abolished, racist business practices would have lingered, punished but also rewarded by market forces:
Any store owner in the South who chose to serve blacks would certainly have lost far more business among whites than he gained. There is no reason to believe that this system wouldn't have perpetuated itself absent outside pressure for change….
Undoubtedly, changing mores would have broken down some of this over time, but there is no reason to believe that it would have been quick or that vestiges wouldn't still remain today. Indeed, vestiges remain despite the Civil Rights Act.
This is a serious objection that opponents of bans on private discrimination have to address. Although there is plenty of room for argument over exactly how long racist business practices would have persisted, and how common they would have been, in the absence of forced integration, Bartlett is right that change would have been slower in many respects. That is not necessarily a decisive objection to Paul's position (which I basically share). But the fact that racism was endorsed and enforced by the government for so many years did create a kind of social inertia, and even a libertarian might argue that a ban on private discrimination against blacks was an appropriate response to this artifact of state action.
Unfortunately, Bartlett conflates this argument with a puzzling claim that the Supreme Court was at "its most libertarian" when it blocked enforcement of the 14th Amendment (which requires equal state treatment of all citizens regardless of race) by, among other things, upholding state-enforced segregation of private railway cars in the 1896 case Plessy v. Ferguson. But Plessy was not only at odds with the 14th Amendment; it ran roughshod over property rights and freedom of contract by letting state governments dictate to businesses how they should treat black customers. These are the very principles that libertarian opponents of the 1964 Civil Rights Act's "public accommodation" provision are defending. As Damon Root noted last week, state-mandated segregation "is not a market failure; it's a racist government assault on economic liberty."
Bartlett's careless conflation of private and public discrimination renders Paul's position, which is based on the vitally important distinction between the two, incomprehensible. Bartlett then uses his own confusion to portray Paul and libertarians generally as apologists for racist government policies:
The libertarian philosophy of Rand Paul and the Supreme Court of the 1880s and 1890s gave us almost 100 years of segregation, white supremacy, lynchings, chain gangs, the KKK, and discrimination of African Americans for no other reason except their skin color. The gains made by the former slaves in the years after the Civil War were completely reversed once the Supreme Court effectively prevented the federal government from protecting them. Thus we have a perfect test of the libertarian philosophy and an indisputable conclusion: it didn't work. Freedom did not lead to a decline in racism; it only got worse.
The "perfect test" of freedom was a legal regime in which the rights of African Americans were systematically denied, murderous assaults on them went unpunished, and businesses were forced to discriminate against them? And all that was somehow the result of "libertarian philosophy"? It's hard to believe that Bartlett, a former Ron Paul staffer and occasional Reason contributor, believes any of this. This deliberately dense rant reeks of Bartlett's desperation to distinguish himself from libertarians who have been unfairly tarred as racists by joining in the ad hominem assault.
More Reason coverage of Rand Paul and the Civil Rights Act here.
Addendum: David Bernstein responds to Bartlett's "weirdly ahistorical attack on libertarianism" with a detailed explanation of why upholding Jim Crow was not the libertarian thing to do.