History

Richard Epstein: What Rand Paul Should Have Said

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Writing at Forbes, libertarian law professor (and Reason contributor) Richard Epstein weighs in on Rand Paul's controversial remarks about the 1964 Civil Rights Act:

Does the libertarian affection for private property and freedom of contract mean that the Civil Rights Act of 1964 was wrong to deny the white owner of a luncheonette the right to exclude a black customer from his premises solely on the ground of race?

Paul answered yes, based on a rote application of the Randian approach. The correct answer to that question was no, for reasons that place normative libertarian theory in its proper social and historical context, to which Paul was blind. That context of course is Jim Crow segregation that dominated the South and also exerted its baleful influence in the North. State-imposed segregation is the antithesis of what every libertarian theory requires, by imposing legal barriers that make it virtually impossible for individuals to enter freely into voluntary transitions with trading partners of their own choice, white or black.

Read the rest here. Read Reason's coverage of Rand Paul and the Civil Rights Act here.

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  1. What libertarianism needs is more brave, lonely announcements of conformist pusillanimity.

  2. First, illicit control of the electoral franchise, which in turn translated into control of the police and the courts. Second, corrupt use over the infrastructure translated into an ability to deny water and electrical hookups to firms that did not toe the segregationist line. Third, private violence to which southern police forces turned a blind eye when they did not actively support it.

    WTF? Paul explicitly opposed each of those. And if Epstein is correct that national chains were segregated only because they were afraid of local government corruption, then Paul is even more correct to state that all the CRA needed to do was break the government segregation. It didn’t need to enforce desegregation of private businesses.

    1. Read the whole thing. Epstein narrows his focus to Title II towards the close of the essay.

      1. Right, and he says that without the extortion from local governments, then national chains were happy to desegregate. In other words, Title II wasn’t actually necessary to obtain desegration of private businesses. End the discriminatory practices of the local governments, and you free private businesses from externally imposed segregationist policies.

        In other words, Rand was right.

        1. No. Because there was no way to stop the locals from extorting the firms without a federal law. Once there was a federal law, everyone had to serve blacks so the local government couldn’t go after those who did.

          1. Rand didn’t oppose a federal law banning segregationist policies by local governments.

            He didn’t even say that the presence of Title II would prevent him for voting for the CRA. He only said that he would have debated against it.

            1. But the local governments used things like refusing to hook up utilities to segregated businesses and letting local thugs burn the place down to enforce segregation. Title II stopped that kind of crap.

              1. I think even Rand Paul could support laws preventing discrimination by regulated utilities. He also explicitly opposed the use of thugs and violence.

                What makes you think he doesn’t?

                1. I don’t think that he does. But I also think that the reality of the situation made change hard without a federal law.

                  1. He didn’t oppose the whole fcking law. He didn’t even say he’d vote against the CRA as passed.

  3. The correct answer to that question was no, for reasons that place normative libertarian theory in its proper social and historical context, to which Paul was blind. That context of course is Jim Crow segregation that dominated the South and also exerted its baleful influence in the North. State-imposed segregation is the antithesis of what every libertarian theory requires, by imposing legal barriers that make it virtually impossible for individuals to enter freely into voluntary transitions with trading partners of their own choice, white or black.

    Maybe if I read the whole fucking article this would make sense.

    I doubt it.

    Because laws dictating whom one can do business with are bad, we should always say laws which dictate whom one can do business with are good.

    Seriously, thanks for clearing that up.

  4. Yes, let’s all get caught up in a fervor over a stupid argument about semantics over Rand Paul. Exactly what TEAM BLUE wants right now: a distraction from how much they’re going to get hammered in November.

    1. Rand Paul’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.

      1. or, it would be exactly the opposite.

      2. I’m thinking “Team Blue’s” above post is a joke but dear Gog, I’m having a hard time not punching my screen in blinding rage reading it.

        1. In case you didn’t recognize it, it’s a quote from a speech Edward Kennedy gave during the Bork nomination.

          1. Thanks for the heads up. Reading about it now.

          2. I figured more people would recognize the quote. Good job, Mister Archivist.

      3. You didn’t capitalize TEAM BLUE, you asshole!

        1. I actually like Team Blue’s sense of humor there. Well done.

      4. Boo!

      5. *yawn*

        MediaMatters much, Team Blue?

      6. Nice trill.

        I especially like the bit about rogue police breaking down people’s doors, since that’s a topic Reason is perennially obsessed with.

    2. If Team Red thinks they are going to beat Team Blue by more than the historical average of midterm elections after a party switch in the presidency, or that they are going to retake control of either house of Congress, Team Red will be quite disappointed come election night.

      1. I don’t know. With the double elimination tournament brackets being used this year for the playoffs, the red team might find it difficult to beat the blue team this season, especially with Jenson being out with a sprained collar bone.

  5. What Rand Paul Should Have Said

    What the fuck is wrong with your neck?

    1. I like this train of thought Sugar. Let’s continue it.

      What Rand Paul Should Have Said

      “Tell me, Rachel, have you ever been a beneficiary of affirmative action?”

      1. no, “have you even been a beneficiary of the Americans with Disabilities Act?”

        1. Or, “What would you say if a gay man or woman wanted to open up their own apartment complex and discriminate against straight people? What you’re okay with that? You are a hyporcrite.”

      2. “Well, based on the people I know, I can’t see segregation coming back in any significant way if those provisions of the CRA went away. But I can understand your experience in progressive circles might make you more wary.”

  6. So is Epstein arguing that Paul should have failed to make the distinction between state-mandated segregation and state-tolerated segregation?

    If so, what an idiot.

    1. My thoughts exactly. The state of Tennessee (just to use an example) does NOT have the right to prevent black people from eating at the Woolworth’s lunch counter. But the OWNER of that lunch counter does. This does not make that choice ethical but it is the owner’s choice.

      1. The state of Tennessee (just to use an example) does NOT have the right to prevent black people from eating at the Woolworth’s lunch counter. But the OWNER of that lunch counter does. This does not make that choice ethical but it is the owner’s choice.

        What if it uses the force of law to prevent people from opening rival restaurants?

        1. “What if it uses the force of law to prevent people from opening rival restaurants?”

          If so, it is THAT law which needs to be changed or repealed.

          1. OK, fine.

            But it’s a question of the order in which the respective laws should be repealed.

            If we are not successful in repealing the laws that prevent people from opening rival restaurants, can we safely repeal the law against discriminating in serving customers at restaurants?

            This is the out to use to get around this “symbolic” problem.

            You know how southern libertarians say that we can’t stop cracking down on illegal immigration until after the welfare state is dismantled? This is kind of like that. If “I’d be for open borders, after we get rid of the welfare state!” is a permissible libertarian argument, then “I’ll be for ending racial discrimination laws, after we get rid of the regulatory and planning state!” should also be a permissible libertarian argument.

            1. Rand explicitly endorsed those provisions of the CRA that banned discriminatory regulatory and planning laws.

            2. There are negative unintended consequences resulting both from civil rights legislation and immigration laws. Both are bad laws in and of themselves regardless of what other laws exist on the books.

              1. Just to be clear, my 5.25.10 @ 12:58PM post was in response to Fluffy.

      2. Nashville desegregated it’s lunch counters in 1960 after mass protests by, WHITES. An example Paul could have used. So don’t be bashing Tennessee.

  7. I heard Rand’s first name is actually Randall, and that his father did not name him after Ayn. Any merit to that?

    1. In which case Rand named himself after Ayn?

    2. A recent NYT article I read about Rand Paul said that it’s a common misconception that his name has to do with Ayn Rand, but that it’s only a shortened form of Randall.

    3. I have a strong feeling that Ayn Rand would not like her putative namesake very much. She certainly wouldn’t like his dad.

      1. She probably would have found numerous grounds for excommunicating him, but only after she fucked him.

        1. And the best part is that they could yell out their own names during sex and not piss their partner off.

          1. Why is that a good thing?

        2. When you put it that way, it makes me admire her saucy character.

        3. He’s a theist which would have been completely unacceptable to her.

    4. His first name is Randal. I’ve seen his credit card. (I work in his hometown.)

  8. A proper assertion of liberty need not be calibrated to adhere to its “proper social and historical context.”

  9. Epstein pisses me off here.

    There is a libertarian argument to be made for preventing racial discrimination, but he doesn’t make it.

    In fact, he goes to great lengths to describe four factors that created and maintained racial segregation in the south – and only one of those factors has anything to do with legal private non-violent action.

    So by the terms of his own argument, even a Civil Rights Act amended to remove the title to which Paul objected would still have demolished three of the four “interlocking” problems Epstein claims were necessary to create and enforce racial segregation in the south. Now, I don’t know where Epstein buys his tables, but I hope he lets us know because where I shop the tables fall down if you cut out three of their four legs.

    He also says this:

    Title II is a unique provision of the Civil Rights Act of 1964. Its symbolic importance is enormous. Its practical inconvenience is zero. Its administrative expense is minuscule. What’s not to like?

    Is he fucking insane? Or has he simply never owned or operated a business?

    Because of the title in question, every last hiring decision every business owner makes anywhere in the United States is subject to litigation. Every time a customer walks into any business in the United States, the business owner is playing Russian roulette with litigation. Racial sensitivity training is a billion dollar industry. And Epstein says that the inconvenience and expense is zero?

    There’s a really simple way to see if the inconvenience and expense are zero. Let’s set up an experiment where I can treat each and every last economic transaction Epstein enters into as a consumer the same way that businesses are treated. Let’s create a legal regime where Epstein can be sued if he buys orange juice in a “discriminatory” way, or if he patronizes restaurants in a way that has a racially disparate impact. Let’s open him up to litigation if while he’s driving to Wal-Mart to buy a TV, he drives past “better qualified” minority sellers of TV’s and fails to stop and let them pitch him on the merits of their TV’s. Then we can talk about “inconvenience and expense”.

    1. He is right about litigation. No one sues under Title II. People sue under Title VII the employment discrimination provisions.

      His point was that since the Supreme Court refused to properly enforce the P&I clause, the feds had no choice but to pass title II of the CRA. Before the CRA, state governments could discriminate and it was not considered a “federal right” and there was nothing anyone could do about it. Had the P&I clause been properly interpreted there would have been no need for the CRA, which makes the liberal love for the Slaughter House cases more than ironic.

      1. Exactly.

        The federal ban on lawsuits against gun manufacturers for gun violence is another case of a law I consider unconstitutional in itself but necessary due to liberal judges’ enabling of those frivolous lawsuits.

        1. Why is it unconstitutional to ban law suits against manufacturers for products that perform correctly? Overreach of the commerce clause?

          1. I don’t see an enumerated power that covers it.

            1. I’d see it as an extension of the 2nd amendment. Presumably the right to bear arms includes the right to manufacture them. And failing some sort of defect in the weapon itself, it seems perverse to infringe upon the second amendment by allowing lawsuits that allege a gun performed as advertised.

              It also seems to me that frivolous lawsuits in state court also infringe upon my 2nd amendment rights by unreasonably discouraging the sale of weapons.

              It also seems that if the Feds can regulate interstate commerce by banning state-specific impediments to the sale and transfer of said tools of the 2nd amendment.

        2. The federal ban on lawsuits against gun manufacturers for gun violence is another case of a law I consider unconstitutional in itself but necessary due to liberal judges’ enabling of those frivolous lawsuits.

          Indeed.

          Those lawsuits use legal “principles” that were never applied anywhere else.

      2. What title did the Denny’s customers file under?

  10. libertarian law professor (and Reason contributor) Richard Epstein, frantically scrambling to protect his job and all the privileges and honoraria thereto attached, shoves evil racist teabagger Rand Paul in front of the nearest passing express train.

    1. At least it was public transportation, the green choice.

  11. There is a concerted attack on libertarian views going on in the press, and, unfortunately Rand Paul’s repeated stammered attempts to change the subject in that interview didn’t help one bit.

    He should have said, ‘of course I’m not a racist just because I think the government overreached in this one thing, any more than Obama’s a communist because he favors increased government roles in things.’ Instead he started babbling about gun laws.

    But by leaving Maddow the opening he’s done additional damage to the movement.

    And I think a good case can be made for Epstein’s comments that the symbolic import of desegregating those lunch counters was crucial to challenging institutional racism in the South. Sometimes symbols really are important.

    1. That’s the problem. If he was going to make the statement, he should have been prepared to defend it. Instead, wearing a deer in the headlights expression, he stammered and stuttered and tried to backtrack, making himself look like a man with something to hide.

      But I am glad he opened this can of worms. Hilarity ensues!

      1. Just like his dad — woefully unprepared for an interview anyone with half a brain knows is going to be an attempt to smear him. There’s no tenet of libertarianism that requires libertarian candidates to have idiots advising their campaigns, is there?

        1. I’m also unaware of the tenet that says good on talk shows with a leftist hack host that no one who would vote for him in Kentucky would even watch is mandatory.

          1. Even though no one watched it, the headlines of mainstream news outlets are now about Rand and the Civil Rights Act.

            That can’t be a positive.

            And if none of his potential voters are watching Maddow, then why on earth make an appearance?

            1. I don’t think this will hurt him a bit! I haven’t heard anyone who was planning to support him complaining, and on top of that, I think the public is getting sick and tired of hearing from the Cry Racist! contingent.

              I haven’t yet seen any polls on the issue. Who knows? Maybe his position has more public support than the screaming from the media would have you believe. It wouldn’t be the first time the media has labeled a position as “extremist” that actually had something like 70% support. In fact, that’s the usual state of affairs these days.

            2. And if none of his potential voters are watching Maddow, then why on earth make an appearance?

              That was my point. It was a bit linguistically convoluted to play off of Tulpa’s post. Sorry about that.

              1. You don’t have to linguistically convolute yourself for my benefit.

                1. You say that now…

        2. woefully unprepared for an interview anyone with half a brain knows is going to be an attempt to smear him.

          I’m sure he knew it would be an attempt to smear him, and obvioiusly I don’t know how much information Maddow or her producers or whoever gave Paul, but really, would you expect the host to question you about a piece of law that’s almost 50 years old and has nothing to do with your campaign? I’d have been prepared for questions about Iraq, the economy, maybe gay marriage or abortion. Not the Civil Rights Act.

      2. And I think a good case can be made for Epstein’s comments that the symbolic import of desegregating those lunch counters was crucial to challenging institutional racism in the South. Sometimes symbols really are important.

        An event that occurred four years before CRA and without the CRA?!?

  12. WTF is the matter with all these self-proclaimed libertarians? I’m going to go GWB on you here, but you’re either with us or against us. We are FOR property rights, unfettered and absolutely. If you are not FOR that, then do us a favor and quit calling yourselves libertarians.

    1. I’m a libertarian when it comes to rights I choose to exercise.

      or something like that.

      1. In the future, you may not have the right to choose to exercise. Michelle Obama’s Department of Fitness will see to that.

  13. And by the way:

    Its symbolic importance is enormous.

    I agree with this, but not in the sense Epstein means.

    Because this title exists, the precedent is set for government micromanagement of all property everywhere for all time. Think it’s silly that state legislators think they can control how much salt restaurants add to food? The genesis of every last bit of nanny state absurdity, of planning department expropriation, of zoning board corruption and rent-seeker-empowerment – it’s all right there.

    Because this title exists, every time any libertarian anywhere makes an argument claiming that citizens have property rights, progressives say, “Well, you don’t really have property rights that way. There are always limits to what you do with your property. Think about racial discrimination, for example.”

    You know it. I know it.

    No credible claim can be advanced that property rights exist in the US while the title in question remains in place. So, yeah, symbolically, it’s pretty important.

    1. +1

      Race is the most typical of the excuses they give for overreach.

    2. No credible claim that you have absolute property rights can be made, based on the entire history of civilization in general and this country in particular. Where does this right come from? It’s not in the constitution. In fact, there wouldn’t be any such thing as property without prior laws establishing what property means and what rights, restrictions, and protections are associated with it.

      1. Not that you really care about this, but here’s a clip from Locke’s second treatise since it seems you are confused about the nature of property rights. I’d say Locke makes a rather “credible claim”.
        http://www.constitution.org/jl/2ndtr05.htm

        1. Locke is not totally coherent on property, and there are different interpretations. He did make it clear that property is given to all humans in common, and private property is a matter of expedience (possibly requiring consent of the whole–though that’s not totally coherent). At any rate I don’t think natural rights or any argument invoking God are sufficient.

  14. The simple fact is that an honest libertarian is going to get slaughtered at the polls. Barry Goldwater denounced Social Security and got stomped by the less than telegenic LBJ. Ronald Reagan probably hated Social Security even more than Barry did, but pretended he didn’t. His staff forced him to promise that he would never, ever talk about Social Security, because every time he did he would talk about making it voluntary.

    If Rand wants to get elected, he will talk about eliminating “waste, fraud, and abuse,” and not about taking out Social Security, Medicare, and Medicaid, which I bet are all popular programs in Kentucky, as long as the federal government picks up the tab.

    1. Shouldn’t you be at home working on another Hemmingway novel?

      1. Leave Alan alone. He needs to finish up the review of Survival of the Dead for me.

    2. Not if libertarians control the polls.

  15. As a commercial real estate guy, zoning ordinances are often on my mind, and it seems to me that regardless of the intentions of the protesters, it was the zoning ordinances and laws that were the real target of lunch counter sit ins.

    It was unfair for city and state laws to prohibit restaurant owners from serving black customers just like they did the white ones. …and if I understand the situation properly, it wasn’t as if the restaurant owners had a choice.

    For all I know, most of those white-owned businesses were owned by racists who wouldn’t have wanted black customers driving all their white business away anyway–but that doesn’t mean they had a choice in the matter. If any restaurant owner had flaunted Jim Crow laws, the cops would have come and closed them down.

    So even the lunch counter sit ins weren’t really about the racism of the businesses themselves–they were really about the state and local laws and ordinances.

    …but people seem to be conflating the two.

    1. How do your interpretation allow me to call Republicans racist?

    2. True story. My father was in North Carolina in 1966, after the CRA. Him and a black friend from his Marine unit walked into a cafe together in Cherry Point North Carolina in uniform. The owner called the cops to get the black guy and by necessity my father to leave.

      The only thing that bugs me about Libertarians is that they sometimes downplay how bad Jim Crow was. It was fucking horrible shit. And I don’t blame the people who passed the CRA for the subsequent ill effects of the CRA. I blame the fucking ignorant racists who pulled shit like that.

      Yeah, property rights are important. But if we hadn’t had large numbers of ignorant pieces of shit who were abusing their property rights to the determent of an entire race, the federal government might have had a harder time infringing on those rights.

      1. I’m beginning to think you’re failing at reading comprehension.

        WE ALL OPPOSE JIM CROW

        1. Your reading comprehension is apparently low as well. Perhaps I didn’t make this clear enough. It is not about whether you support Jim Crow. The issue is whether you are willing to violate the Constitution to stop it. My argument is that Jim Crow was so bad that arguments about the reach of the commerce clause really didn’t outweigh the necessity of ending it. Now, it is probably the case that fifty years on, the necessity is no longer there and we need to go back to a more regular reading of the Constitution. But at the time, something had to be done.

          So for the fifth time on this thread. No one is saying you or anyone else supports Jim Crow. Saying that you don’t support Jim Crow misses the entire issue.

          1. Luckily, no one except Rachel Maddow is suggesting we go back to Jim Crow.

          2. You can justify bans of Jim Crow under the 14th amendment.

            And Rand Paul supported a Federal ban of Jim Crow.

            1. Pfft… that’s much too efficient. It’s best to address equality by objectifying each and every human quality and ‘managing’ each uniquely.

              What about the cost to implement, you ask? Don’t worry, this measure will lower unemployment… so it’s more like making money. Trust me.

              And, hey, we may even get to use it as a wedge issue. True, that might break a few eggs as we stoke the fire, but politics is messy.

              And we’re just getting started… Fact is, humans are speciest; who are we to take advantage of our place in nature? Who made us judge, jury and executioner?

              Anyhoo, I’m off to break a few windows.

            2. Or the 14th Amendment self-executingly made Jim Crow unconstitutional, under either P&I or Equal Protection. Not to mention that Section 1983 already gave a right of action against Jim Crow laws from the time of reconstruction.

              So essentially, the CRA was totally redundant with the exception of Title II.

              So that gives reason to argue against the CRA in its entirety, as arguably the only substantial change (Title II) enacted by the CRA is unacceptable normatively as well as effecting a taking under the 5th amendment and a overreach of Commerce Clause power.

              So basically, the whole thing is bad because it’s either unnecessary or substantivity beyond the pale.

          3. “But at the time, something had to be done.”

            …known as the battle cry of Progressives. But in especially in this case, something had been done again, and again, and again.

            Do you believe a more accurate description of the Civil War was the “War of Abolition”, a revolutionary war, or something else altogether?

            We can pretend that Black property and slave owners never existed in the Americas… but that’s hardly the case.

            If only class, race, etc. was as simple as taught…

          4. But the Jim Crow laws could have been repealed without going all the way to the other side and saying now all businesses HAVE to serve people of all races. It could have just been made so that there were no race-based laws at all.

      2. This is why you’re not one of us, John.

        No one has a right to my property, whether it’s at my house, the gym, or my restaurant. I’m not “abusing” my property rights by excluding anyone (for any reason) because that’s the defining characteristic of property rights. They are mine, and I can exclude you, the black guy down the street, the white man with the silly mustache, or your dog.

        1. And you think that it is A-Ok to have an entire society that does that and treats the majority of its population as less than human? If sitting here fat dumb and happy forty years on and thinking that black people should have been subjected to Jim Crow for even one more day so that I can later wax philosophical about property rights means being one of you, no I am not one of you and never will be.

          We are not talking about too much salt in foods or people having to pay for their own retirements. We are talking about the organized and systematic oppression of millions of American citizens.

          1. So you claim the majority of society is racist; care to provide some facts and figures? If not, your argument is a waste of time.

            1. In 1964, I would say the majority of Southern society was racist. I am not going out on much of a limb there. Now, things are different. But I am talking about when the act was passed. I think perhaps the time has come to repeal the act. But I don’t think for a minute that it wasn’t necessary at the time.

              1. The majority probably didn’t care one way or the other as long as they could get by. Economics drives political change, not the other way around.

              2. Racism was as common outside of the South as in it, but it was more strongly institutionalized in the South.

          2. I object to your ridiculous claim that excluding someone from my property means I am treating them as less than human. Perhaps you can tell us precisely what you mean by that.

            We are not talking about too much salt in foods or people having to pay for their own retirements. We are talking about the organized and systematic oppression of millions of American citizens.

            You’re an idiot.

          3. Have a whites only restaurant is not Jim Crow.

            Having a whites only restaurant mandated by law is Jim Crow.

          4. There’s no such thing as society; only individuals can act.

      3. But John, as always, it was the state, and the idea that one has a right to use the state to get one’s way, that was the problem. It is state action, not the prejudices of private parties, that has always been infinitely more destructive of life and liberty.

        Thus, the restaurant owner who called the cops on your dad and his buddy was wrong to call upon the state to enforce his property rights. However, if he paid a protective agency to defend him and his business, he would have had the right to call upon the protective agency in order to exclude both your father and his black friend from the restaurant as his right to do so trumps any right of any third party to use force to impose their racial whims upon him.

        One does not have a right to use force in order that his racial views prevail.

        1. Funny, how the troubadors of racial fairness and harmony invariably sing from the playlist of coercion. As is self-evident, do gooders usually do evil.

        2. But it was more than just that. Epstein describes it well

          “First, illicit control of the electoral franchise, which in turn translated into control of the police and the courts. Second, corrupt use over the infrastructure translated into an ability to deny water and electrical hookups to firms that did not toe the segregationist line. Third, private violence to which southern police forces turned a blind eye when they did not actively support it. Fourth, social ostracism to those who spoke up against the system. Sensible people either left, stayed away or remained silent.”

          I am not convinced that things would have changed very fast if we had done nothing. They would have changed eventually but a lot slower. And it is easy for you and I to tell people to live under those conditions for just a few more years.

          1. What odd things for you (and Epstein) to be saying.

            No one even remotely suggested that nothing needed to be done.

            No one even remotely suggested that the federal government should not have ended racist policies by state and local governments.

            It’s as if neither of you bothered to listen to the actual interview or read the transcripts.

        3. You’re assuming John’s dad and his black friend didn’t have their own security forces. Funny how the denigrators of the “monopoly administration of justice” always assume there’s only one administrator of justice active in any situation.

          1. Tulpa, I did not assume any such thing and if I do, shame on me.

      4. I hope you appreciate the point that the cops weren’t arresting black people in whites only restaurants because restaurant owners were racist–cops were arresting black people in whites only restaurants because it was against the law.

        It was the laws and ordinances that were the problem.

        Now the cause of those laws? …that’s another question entirely–the ’cause of that problem was in people’s hearts, and some of the solutions the government came up with were pretty awful too–forced busing, etc.

        Anyway, the solution certainly wasn’t to put the government in charge of hiring decisions and acting like every business’ personnel department. Nothing makes people hate each other like forcing them to do something against their will…

        Isn’t that what the history of the South since 1865 is all about?

        1. “Anyway, the solution certainly wasn’t to put the government in charge of hiring decisions and acting like every business’ personnel department.”

          That is true. But you are talking about Title VII not Title II. Epstein is defending the Title II public accommodations provisions not the Title VII job discrimination provisions.

          And getting rid of the state laws would not have worked very well. It would have helped. But it would have done nothing about the problem that most white business owners didn’t want to integrate. You guys act like the South was filled with all these wonderful Atikus Finch types who were just dying to integrate if only the evil state government would have let them. That is just a fantasy.

          1. John,

            The presence of the laws against integrated facilities is, to me, outstanding evidence of just that.

            There would have been no reason for the use of the police power, or the use of private terror, to enforce segregation if everyone already wanted to be segregated and would have remained so in the absence of the law and the terror.

            1. Clearly there was a significant minority who did object. But it doesn’t take many people to screw things up. Also, remember that the people behind these laws were fanatical nuts. They were the kind of people who stayed up all night worrying and stewing about the fact that some restaurant across town that they would never go to might be serving blacks and whites together. We live in such a different world, we forget how crazy people were. The segregationists were worried about the races mixing because they might marry and have children and destroy the white race. Really crazy shit. So, just because they passed laws and used terror doesn’t mean that the majority of the people didn’t agree with segregation. It just means that they were intolerant and crazy and wanted to crush any dissent.

              1. Epstein explicitly argues that shops were begging to desegregate and did so as fast as they could.

              2. John, your ‘crazy’ key is stuck again.

              3. “We live in such a different world, we forget how crazy people were. The segregationists were worried about the races mixing because they might marry and have children and destroy the white race.

                This probably isn’t the thread to discuss this, but I think a lot of people misinterpret the south through the lens of modern day white supremacy…

                Growing up in Maryland and Virginia, going to Monticello, I remember taking the tour and hearing about how while some of Jefferson’s slaves were brutalized working in the fields, Jefferson was very forward-thinking with some of his slaves. He set up schools and trades for some of them, and let them keep their own wages!

                …this was before we found out that Jefferson owned his own children as slaves. …and that the slaves he treated so well–were his own children! Turned out that the reality was way more complicated than anyone would admit for the history books.

                I’ve been reading a lot about ancient Greek history lately, especially about the Spartans and their relationship with the essentially enslaved Helots. Once they decided to enslave the Helots, most of the rest of their decisions were made for them. They had the greatest army of their time, and could hardly use it beyond their borders, at least not for long, for fear of what the Helots would do in their absence. The kind of honor bound, militaristic society they built grew up on a steady diet of fear of a huge chunk of their own population.

                The more the Helots legally couldn’t do, the more it meant to be a Spartan. And the truly frightening slice of the population, were the disgraced Spartans who weren’t Helots, but were no longer full citizen Spartans for various reasons either. They were the ones who had to enforce some distinction between themselves and the Helots…

                Reminds me a lot of the white underclass in the South, actually, who were always in competition for work with slave labor before the war, and who suddenly found themselves in competition for service jobs after Jim Crow.

                It wasn’t the doctors and lawyers and business owners. It was the auto-mechanic whose ideal of a life was working to support his family while his wife took care of the kids–but couldn’t make enough to do that. So his wife was waiting tables in a restaurant–but what’s the class distinction between a white woman waiting on tables and the black men she’s serving?

                The Helots were the same race as the Spartans, but when class distinctions are accentuated by race, it’s much, much worse. When you break those race distinctions, which Jim Crow laws did, it puts the class distinctions in flux too. …how do you separate class distinctions and race distinctions?

                You’ve seen how persistent class distinctions are in places like the UK? And how white supremacy is largely a feature of the British working underclass? I think that’s what you’re looking at in the South just before the end of Jim Crow too. White supremacy was largely a feature of a very thin slice of Southern society–which isn’t to say the people weren’t racist! It’s just that the racism was tied up in class consciousness. …and it’s that class consciousness that was really at the heart of it all.

                So, anyway, I don’t think it was about preventing white women from having black babies–although the white supremacists got all the headlines. I think it was more about fear of losing class distinctions, with race just throwing kerosene on that fire.

                1. Oh there you go again bring class into it.

          2. Also,

            Yeah, you’re quite right. I am compressing the public accomodations title and the employment discrimination title into one. That’s erroneous, and I thank you for correcting me.

            But both of those titles rely on the same false interpretation of the Commerce power, and the same abuse of private property rights and association rights, so it’s probably appropriate to deal with them together anyway.

      5. I believe you will make more sense if you stop using the words “Jim Crow” and substitute something like “pervasive discrimination”. Most people here are going to firmly associate “Jim Crow” with rule of law.

        1. Show me in the Constitution where the government is empowered to end pervasive discrimination.

          1. If they have the power, they surely aren’t using it — society is still pretty segregated, informally.

          2. I didn’t say it does. It just seems to me that John is mixing up “Jim Crow” the laws with “Jim Crow” the way things really sucked to be black during that period. I think the first one is the only one that makes sense, therefore, I suggested an alternative for the latter.

  16. Rand tried to make a nuanced argument that he should not have made. Most people are not deep thinkers who are lazy in coming to their conclusions.

    I get the point that Rand was attempting to make, but do disagree with it. The initial intent of the Civil Rights of 1964 was to insure that the Fourteenth & Fifteenth Amendments to The Constitution functioned in The South. This is something that did not occur for the first 100 years after the Civil War.

    Unfortunately like most things originating from the government, this act has been bastardized over the years to go way beyond its initial mission.

  17. Second, corrupt use over the infrastructure translated into an ability to deny water and electrical hookups to firms that did not toe the segregationist line.

    Pssh, some libertarian. He doesn’t even know the proper terminology!

  18. I think Rand Paul should have said the Civil Rights Act would have been a rare exception to his belief that the Federal government should stay out of private business.

    You have to know when to concede a point. And pure adherence to ideology will periodically test this.

    1. At this point in time more and more Americans are sick and tired of politicians who lie for the sake of political expediency. They are also increasingly sick of politically correct bullshit. I think Rand Paul helped himself with his honesty.

      1. I have no beef with his honesty. It’s his belief that I find unreasonable.

        1. Why do you find his belief unreasonable? Just to be clear I have no respect for people who would discriminate on the basis of race, but why do you believe someone would not have the right to do so?

          1. There are myriad reasons, which is why it would be a rare exception. I’m not interested in debating those reasons because individually they wouldn’t be strong enough. Just think of every reason you’ve ever heard, then put them all together. It’s a judgment call, and we don’t have to agree on that.

            1. Do you understand the concept of unintended consequences?

              1. Is this where you launch into your speculative alternate history?

                1. “Is this where you launch into your speculative alternate history?”

                  This is the part where you tell me if you understand what unintended consequences are.

                  1. Yes, so why don’t you just tell me what you’re getting at? Did I say the CRA was perfect? I just said it’s better than the alternative.

                    1. There’s more than one alternative. Which is it better than?

                    2. Why don’t you define the alternatives then let me choose?

                    3. 1. Status quo

                      2. Repeal the parts of the law that Rand Paul suggested.

                      3. Repeal the entire law, even the parts Rand Paul does not object to.

                      4. Look for other laws that, even if they are not inherently racial in nature, disproportionately have a negative impact on racial minorities and repeal some of those [one suggestion might be laws that require “business licenses” in order to start a small business. Another might be reform or complete repeal of the War on Drugs] Repeal of such laws is something most, if not all, libertarians would support.

                      5. End government entirely and move to a society that some call “voluntaryist” and others describe as anarcho-capitalist.

                    4. Status quo.

                    5. Lamar, so there are no laws anywhere in this country that you think should ever be changed? As of May, 25, 2010 at 2:52 PM Eastern Standard time no law should ever change? Is that what you are saying?

                    6. I was viewing this discussion as Jim Crow vs. CRA with respect to public accommodations, but now its about every law?

                    7. “I was viewing this discussion as Jim Crow vs. CRA with respect to public accommodations, but now its about every law?”

                      That is what option 4 was about.

  19. I’d be fine if the apologetic libertarians would just say that Title II was a necessary evil to correct a government-created problem instead of torturing libertarian principles in attempt to say it was somehow consistent with our beliefs.

    1. I wish you wouldn’t say what I think better than I do. It’s rude, like being ugly in somebody else’s pictures.

      1. Sorry. It’s a bad habit I’m trying to break. 😉

        1. You can’t stop being ugly in somebody else’s pictures, NutraJerk. It’s just who you are.

          1. I know. Most people assume that a picture of my wife and me was taken moments before her abduction by CHUDs. “Sweet fuck! It’s right beside you!”

            1. I’m impressed, NutraDope. You’ve seen C.H.U.D.. Doesn’t change the fact of what you look like, but hey, anything positive is a net win.

              1. Is it a good thing that I know Cannibalistic Humanoid Underground Dwellers without Googling C.H.U.D.?

                And that I’ve seen the sequel (although I’d have to Google to see if there have been III through X)?

        2. Which one? Being ugly or saying things better?

          1. Both, T. Both. 🙁

    2. That is how I feel. And also why I hate racists. Those motherfuckers, through their despicable behavior, gave liberals the excuse to destroy the Republic as we knew it.

      1. I also hate racists but the problem with laws such as this is that it often creates more of the problem it purports to solve. How much do you know about the history of Yugoslavia? Back before the breakup there were laws against even speaking ill of another ethnic group within Yugoslavia. The result was built up hatred that had no way to vent itself. The result was, once the Iron curtain fell that ethnic hatred spilled itself out in very horrific ways. We all know what that resulted in.

        Allowing private people to discriminate in their own private ways can actually create a SAFER situation for racial and ethnic minorities. Besides, why would you want to do business with someone who hates your guts anyway?

        1. There are clear downsides to this law. But there are also a lot of downsides to having Jim Crow to. People say it would have changed on its own. And maybe it would have. But, that is easy for us to say. We were not living in it. I have a hard time condemning people who under those circumstances supported the law.

          And as far as the Balkanization of America, race relations are a lot better now than they were in 1964. For all of its faults, the law hasn’t resulted in the ill effects you speak of.

          1. I want to be clear, I am in no way defending Jim Crow. Unless I misunderstood Rand Paul’s statement he was not either. My only point is that a PRIVATE business has the right to discriminate, not a state, but a business within that state.

            Rand Paul was only speaking about certain sections of the civil rights law, not the entire law.

            “For all of its faults, the law hasn’t resulted in the ill effects you speak of.”

            The laws in the United States were not as strict as those in Yugoslavia but I think race relations would be far better today without that law. Think about all of the white guys you have heard complain about missing a promotion due to affirmative action. Many of them may not have actually lost that promotion for that reason but without that law they would not have that as a mental excuse. They would have to face the fact that that black guy was ACTUALLY more qualified. It would create more respect for minorities in high positions. No one could accuse them of being “affirmative action highers”.

            When all relations are voluntary the same kind of resentment does not exist.

            1. title II is not affirmative action. I would agree that affirmative action should have never been enacted. We should have just treated everyone as equal before the law and gone forward.

              1. I am merely using that as an example of forced race relations. Whenever the force of law creates relationships that otherwise would not exist resentment builds. If those relationships are on the basis of race that resentment becomes racial.

            2. It isn’t all that ‘private’ if it holds itself out to the public. So while I would agree that a private club NOT holding itself out to the public could discriminate, I don’t agree that a public business can do the same.

              1. “We reserve the right to refuse service to anyone.” What’s wrong with this statement, Lamar? Anything? Or should it read “We reserve the right to refuse service to anyone except the people the law says we can’t”?

                1. “We reserve the right to refuse service to anyone.” What’s wrong with this statement, Lamar? Anything? Or should it read “We reserve the right to refuse service to anyone except the people the law says we can’t”?

                  Just be honest and say “We reserve the right to refuse service to niggers even though we benefit from the taxes they pay”.

                  1. Lamar, I don’t follow who programs leftists, so maybe you could point me in his direction — I’d like to point out the inherent flaws in the meme he is broadcasting, that “getting (bog standard) benefits of government” somehow neutralizes any rights you might hold against government, notwithstanding that you actually pay for those benefits through taxes.

                    Namely, that it would mean that no one has any rights, since everyone receives benefits from the government. Which is sort of a questionable assertion in light of our history, not to mention in light of the fact that the people who institute governments (presumably to thereby gain some benefits) also really still want to have most of their rights.

                    1. You’re right. The state doesn’t need to spend tax dollars to your benefit in order to regulate you. Take that clause about taxes out. Thanks!

                  2. So what exactly is this benefit to property owners from those refused? Or are you talking about public services?

                    Either way, today, I worry enough about food preparers washing their hands… The last place I desire to eat at is one owned by a racist, closeted by law or otherwise.

                    Political correctness may help alleviate the uncomfortable nature of difficult conversations… at the expense of the feedback loop.

                2. You can still refuse service to individual black people, so long as you’re not doing it BECAUSE they’re black. In practice, if you operate in an evenly divided racial area and refuse service to 10 black people and one white person on a typical day, you’re going to be in trouble, while if you refuse service to 6 black people and 4 white people you’re probably ok.

              2. “It isn’t all that ‘private’ if it holds itself out to the public. So while I would agree that a private club NOT holding itself out to the public could discriminate, I don’t agree that a public business can do the same.”

                Where do you draw the line? If someone holds a block party does that count?

                1. “Where do you draw the line?”

                  The statute would define it.

                  1. “The statute would define it.”

                    Lamar, where do YOU, personally, draw the line. I am asking about ethics here, not law. Where do YOU draw the line.

                    1. I am not worldly enough to envision the circumstances of people, customs and acts outside of my limited area of knowledge.

                    2. So you have no way to define it?

                      Why then, should this not be left up to the individual rather than to corrupt politicians?

                    3. No need to define it for purposes of this discussion since this type of discrimination would fall into my definition however constructed.

                    4. “No need to define it for purposes of this discussion since this type of discrimination would fall into my definition however constructed.”

                      You are evading. You do not want to show your hand because you know your cards are weak. If I am wrong I welcome you to show your hand.

            3. You may not be defending Jim Crow itself, but you’re essentially arguing that it would be better to have had Jim Crow laws on the books for the past 45 years than to have the CRA on the books for that time.

              1. Exactly. And to me that doesn’t make sense. I would rather take my chances with the CRA and try to fix it now than have lived with Jim Crow for another ten years let alone forty.

              2. You may not be defending Jim Crow itself, but you’re essentially arguing that it would be better to have had Jim Crow laws on the books for the past 45 years than to have the CRA on the books for that time.

                Bullshit. Its saying that better to have neither Jim Crow laws nor Title 2&7 of the CRA on the books.

              3. False. No one is disputing the federal power to ban Jim Crow laws.

                1. Actually, Plessy, like the Slaughterhouse cases, is a great example of judical activism. A federal court, without any express grant of power to do so, went out of its way to uphold state deprivations of liberty. In so doing, the court violated its solemn duty to adhere to Madison’s command to be an impenetrable bulwark against every assumption of legislative power.

                  1. Actually, Plessy, like the Slaughterhouse cases, is a great example of judical activism. A federal court, without any express grant of power to do so, went out of its way to uphold state deprivations of liberty. In so doing, the court violated its solemn duty to adhere to Madison’s command to be an impenetrable bulwark against every assumption of legislative power.

                    In Plessy was not the railroad the depriver of liberty, not the state?

                2. “False. No one is disputing the federal power to ban Jim Crow laws.”

                  Well said.

                  1. True, I dispute such a power. The Federal government has no power to ban Jim Crow laws under the commerce clause.

                    The Federal Government has the power to ban such laws under section 5 of the 14th amendment.

              4. Jim Crow laws were bad for the same reason laws mandating desegregation of private businesses are bad–they dictate to property owners what they can do with their own property.

    3. I wouldn’t. That doesn’t make sense.

      /not a criticim of you, just of anyone who would say something that patently stupid

      1. Well, racism might have gotten better in America, but the problem of perceiving racism everywhere for political gain grows worse every year. As long as the screechers control the narrative, nonsensical-to-our-ears is probably better than giving the press a RACIST club to beat you with.

        I’ll firebreathe about a whole lot of stuff, but the libertarian in the election debate that starts off freaking out about stoplights is an unelectable fool.

        1. That might depend on the jurisdiction. I imagine there are pockets of the country tired of race hustlers and racial bed wetters. In Kentucky, this might even help Rand.

          I’ve been called a racist more than once. It doesn’t bother me because I’m not.

        2. SugarFree|5.25.10 @ 11:38AM|#
          “I’ll firebreathe about a whole lot of stuff, but the libertarian in the election debate that starts off freaking out about stoplights is an unelectable fool.”
          Then you’re part of the problem. Along with libertarians, it would be nice to have self-described anarchists and socialists to add diversity and provide context for policy decisions.

          I’d like the difference between parties to be a little more complex than Toyota Prius vs. Ford F-150.

  20. Former Detroit Mayor Kwame Kilpatrick was sentenced to up to five years in prison Tuesday for violating the terms of his probation on an obstruction of justice conviction.

    Kilpatrick, 39, asked Judge David Groner to show him compassion during the hearing, but Groner said “that ship has sailed.”

    http://www.sfgate.com/cgi-bin/…..&tsp=1

  21. Additionally, having lived here my whole life, Kentucky is not nearly as racist as the MSM likes to portray it. Can I go out and find you a racist? Sure. But I bet you he’s not eligible to vote or not registered. We have a lot of social conservatives to make us a red state, but not a lot of slavering racists. I can go weeks without seeing a Confederate flag anywhere.

    1. It is not 1964 anymore. Both sides make that mistake. The liberals assume nothing has changed since then. Libertarians have a bad habit of thinking that everything was the same back then and under estimate how horrible it was. Those of us born after 1970 really have no clue what it was actually like. And I suspect anyone who had to live under those conditions would find arguments over property rights and the commerce clause to be pretty thin gruel.

      1. Ron Paul attended Duke and lived in Texas during that era, and he still opposes CRA.

        1. And I disagree with him. I don’t see how someone could have lived through that era and not want it ended even if doing so meant expanding federal power.

        2. False. He never said he opposes the CRA.

          Please read the transcript of the actual interview.

    2. You mean a bunch of people based out of New York have inaccurate perceptions of the South? Shocking. Next you’ll try to tell me journalists aren’t experts on every conceivable subject are susceptible to being hoodwinked by “experts” with a plausible line of bullshit. How can I retain faith in the media when you say things like this, SF? Soon I’ll have no faith, and no hope, and then nothing will change.

      That’d be a violation of my civil rights. I need a bailout.

      1. This blog needs a fainting couch.

        1. Can we get the feds to provide us stimulus funds to buy one? It’s a legitimate medical expense, and we can buy one built in the USA with union labor.

          1. As long as it’s union labor, preferably one whose pension we bailed-out with tax money.

          2. As long as it’s union labor, preferably one whose pension we bailed-out with tax money.

            1. Stupid double click.

    3. KULTUR WAR

  22. If we want libertarian ideas to be successful in the larger world, views like Rand Paul’s will be publicized and debated. Some enemies will be aroused. Other people will be convinced. Or we can stay underground and remain ineffectual. If libertarian ideas make you uncomfortable or you can’t logically defend them, then go find another set of principles you can defend and wear proudly.

  23. But when will there be a law to help the shirtless and shoeless? Don’t they have a right to service as well?

    1. Nobody needs to see you without a shirt. If we have to violate your civil rights to prevent a mass outbreak of projectile vomiting, that’s the price we pay for civilization.

      1. But I’m so hirsute and fish-belly white. And I still have all my toes.

        1. When I made my “rude in other people’s photos” comment, I didn’t know you were actually ugly.

          1. It’s OK. I’m a fat, bearded, diabetic, insomniac who is very well-read in science fiction hangs out on-line way too much. Except for my piercing blue-gray eyes that you can just stare into for days, you can imagine what the rest of me looks like.

            1. Have you considered shaving?

              1. The beard is the best part. It is thick and manly. The most trustworthy of all facial hair.

    2. There are lots of places for you to show off your $5,000 Star Trek NG cast tattoo on your back. You don’t have to do it in a restaurant.

      1. Digestion fascist.

      2. That’s a good strategy for avoiding prison rape. Unless you get some perv who’s into Beverly, in which case all bets are off.

    3. “Randy, you know when I want advice on cheeseburgers or not wearing a shirt, you know you’re the person I’ll come to.”

      1. “He never wears a shirt or shoes! How has he not died from a lack of service?”

  24. I have a question for the purists. What about the ADA? I think this is even more difficult a problem for those who claim that government shouldn’t interfere with business. Because while you can (implausibly) claim that racism is no longer an endemic problem, and therefore there is no jurisdiction where being a racial minority could be considered an inherent barrier to engaging in commerce, you can’t pretend that disabled people don’t exist. Should disabled people be vastly restricted in their ability to participate in their society? How is the market “free” for them if they don’t have access to it?

    1. Wow Tony. That is an interesting point. My response would be that while things are not great for the disabled, they were never Jim Crow level bad. The CRA was a drastic response to a drastic emergency. I am not convinced such an emergency existed in 1991 with regard to the disabled.

      The other problem is that it is not as simple to end discrimination against the disabled as it is against black people. Unlike being black, being disabled really does affect your ability to do a job. Further, what is a “reasonable accommodation” for some disabilities is a detriment to others. For example, making door nobs accessible for people in wheel chairs totally screws people with arthritic hands since those kinds of handles are very difficult for someone with bad hands to use. Also the cost of making a building accessible often outweighs the benefit. Why should the tax payers pay $100,000 to build a ramp to the post office when they can just have the employees let someone in a wheel chair in the back door for nothing? But since we now speak of disabilities in the same language as race, having them come in the back door is verboten so we spend millions on unneeded ramps.

      1. It’s not an interesting point, because he already knows the answer. It doesn’t matter how you change the facts, or what new social circumstances you impose on the hypothetical. We are FOR unfettered and absolute property rights.

        1. Do you have the right to murder babies as long as it’s on your own property?

          See, you don’t have unfettered and absolute property rights, and you wouldn’t want it to be the case either.

          1. Idiot.

            1. Well everyone’s trying to convince me that they have absolute sovereignty over what they deem is their private property, and I’m saying that’s just not true.

              You have certain (pretty broad) rights with respect to private property, but it’s not absolute. Especially when we’re not talking about the feds. The feds are pretty restricted, which is why they needed interstate commerce to justify the ERA etc. But these outlandish claims about unfettered property rights are nonsense.

              1. Two words: Utility easements.

            2. What’s that word people use to describe someone who is dumber than an idiot?

              1. That word is “Tony.”

                1. The 3rd Amendment discriminates against soldiers.

              2. You mean a Nidiot?

            3. Thanks. You can check my history (at least recent): I don’t respond to the trolls. Another principled position of mine.

              1. Locking your doors at night discriminates against burglars and unduly burdens them.

          2. Re: Tony,

            Do you have the right to murder babies as long as it’s on your own property?

            Your thinking is very one-dimensional. The baby also has absolute property rights – he owns HIS body. Ergo, the other property owner cannot kill him. If he COULD, then you’re not talking about ABSOLUTE property rights, but actually RELATIVE property rights (as in “well, it depends…”)

          3. Tony has obviously been over at CNN. Sorry, but the argument is still bullshit. First, you don’t have a right to simply take the life of another. Second, you would be violating the property rights of the baby if you consider ones own body as personal property.

          4. If the baby consents to the rules of your property, then yes.

      2. While perhaps the animus behind Jim Crow was never as bad for the disabled, their level of access to commerce was at least as impeded because of restrictions on their mobility.

        The requirements aren’t onerous. Removing physical barriers should be “readily achievable” and thus are subject to a balance test between cost to the business and accessibility.

        I think you get the basic point, John, based on your posts above. Let me try to take it a step further and say that these “restrictions” on business are actually pro free market in the way Epstein describes. If you aren’t free to participate in voluntary transactions in the way other people are, then the market isn’t really free for you. This is a legitimate role for the government to play in the service of a free market. The market does its thing, and government ensures that everyone has more or less equal access to it based on the practical realities of society.

        1. The requirements aren’t onerous. Removing physical barriers should be “readily achievable” and thus are subject to a balance test between cost to the business and accessibility.

          You’re obviously not an architect. They are onerous, especially in the case of older or repurposed structures. Nevermind the hack lawyers that bring suits just because the handicap stripes in the parking lot are 6″ too narrow. Oh yeah, thousands of dollars to restripe a parking lot because of threat of lawsuit even though it doesn’t actually affect anyone because the mandated sized are generous isn’t onerous at all.

        2. Market freedom is a negative liberty. Done and done.

      3. I believe the ADA should be repealed. I am not kidding. If as a business owner, I want to make my business accessable, then I will and will likely get additional business.

        As a wheelchair-bound person (I am not) it is MY responsibility to make adjustments and accomodations to achieve my goals (e.g., buying coffee, going to a movie). NOT society’s.

        The ADA is typical Leftist nanny-state eaqual outcomes bullshit.

        1. Says someone who presumably has maximum access. If you were restricted from participating in virtually all commerce in your society, would you take it like a man and resign to your unlucky lot in life as you are demanding of all disabled people?

          1. “If you were restricted from participating in virtually all commerce in your society, would you take it like a man and resign to your unlucky lot in life as you are demanding of all disabled people”

            Yes.

            1. You’re not exactly in the position to claim that with total certainty.

              I knew you guys were darwinian but surely you can understand why people would prefer systems other than raw physical darwinianism when it comes to participation in the market.

              1. Sure we can. I’d prefer to have the the Ring of Gyges and do all sorts of stuff. But that doesn’t make it right.

          2. That begs the question, what of those who are disabled that overcome their disabilities and succeed and have interacted with society and benefited from it? Is that a result of a law? I am not saying that a disabled person should not be helped, but when does it become needless meddling by government? I am not opposed to handicap accessibility, but I certainly am not opposed to solving issues of access through kindness and charity….I guess ultimately I have not developed the thick skin to view society as filled with more evil people than good people.

            Knight

    2. I’m a diabetic. All pie stores should have to accommodate me. I’m allergic to crabs, no restaurant should get to serve crabs in case I might want to eat there.

      You are still an idiot.

      1. My niece is severely allergic to peanuts, beef, eggs, and milk. When she entered public school, my [incredibly liberal] sister, on whom Forrest was based, threatened the school district with ADA litigation unless they made a gigantic list of special accomodations, some of which would be either prohibitively expensive or disruptive to the learning environment in my opinion, and they caved in to her.

        So your reductio ad absurdum is not as absurdum as you may think.

        1. I had those cases in the back of my mind. And the story posted here a few years ago about the grandmother who sued under the ADA to get a neighbor to cut nut trees that didn’t overhang her yard for the sake of her granddaughter that didn’t live anywhere near her.

          I still think the crab example is a little more cutting to Tony’s silly argument. That all business have to accommodate in the absence of a proven desire for a disabled patron to go there then the equivalent would have been your sister getting peanuts, etc banned from all schools across the country in case your niece happened to eventually transfer there.

          1. How about, “If and when a cripple shows up, we’ll send someone out to fetch him.”

            1. Not everyone gets to do everything they want. I can’t metabolize sugar. That doesn’t mean the makers of desserts are discriminating against me. I just can’t eat them.

              I’d be hard pressed to climb five flights of stairs. Should be able to sue the business up there in order to demand an elevator? Ridiculous.

      2. The ADA doesn’t require anything so draconian. I think reasonable requirements to have ingredients lists available or to have warnings about ingredients that people are commonly allergic to, such as peanuts, are sufficient.

        1. That was already required before the ADA.

          The ADA destroyed many small businesses by forcing them to build costly ramps and enlarge their bathrooms at the expense of retail/dining space. In increases the difficulty of converting residential homes into commercial space, forcing people to demolish historic houses to build strip malls that conform to ADA code.

          1. Citation please. The ADA has exemptions for historical buildings and only requires existing facilities be altered if doing so is “easily accomplished without much difficulty or expense.”

            1. That’s not how it works in practice. In practice businesses are scared of lawsuits, particularly since the government actively monitors compliance and disability groups actively seek non-compliant businesses to target for complaints.

              So what tends to happen is that some businesses that can’t afford to make the minimum changes needed to avoid dealing with a lawsuit. So they just shut down.

              Try reading this:
              http://www.hotel-online.com/Ne…..erADA.html

              1. I have had to deal with this for clients in the past and it is a total PITA. It does happen.

            2. all old buildings are not “historic” buildings.

              1. er not all old buildings….

      3. if you don’t want crabs, stop fucking those whores. seesh

        1. This is why I support shaving.

        2. It’s not prostitution is you pay her in delicious seafood.

    3. How is the market “free” for them if they don’t have access to it?

      Resources would be freed up for other uses. Disabled persons would be better off and able to drive a little further to the Wal-Mart with the ramp.

    4. The ADA is a joke. It has little to do with the disabled and is all about giving tort lawyers a way to collect fees. It was ultimately a payoff to the trial lawyers association.

      At its best it is another example of the Federal Government following the people, not leading. Ramps, handicapped parking, wider doors, and hiring the disabled were all happening a long time before the ADA started. What wasn’t happening was groups of predatory lawyers having the ability to go out and sue small businesses for petty infractions. That’s what the ADA is really about.

    5. I don’t think anyone is seriously saying there is no such thing as racism today, Tony… OTOH, it’s not nearly as bad as it was forty years ago, for instance.

    6. Just yesterday I was making the argument that the ADA was the unholy spawn of the anti-discrimination legislation of the 60s and 70s. Thank you Tony for agreeing with me.

      I’m pretty sure that YouTube was not intent on discriminating against blind people when it failed to include special code to accommodate Braille browsers.

        1. I bet she smells like stale sweat.

        2. On the other hand, I, as a 5’8 112 lb male, have extreme difficulty finding clothes that fit me. Everything’s too big. DISCRIMINATION! THE PATRIAR–uh, MATRIARCHY!

          Oh wait, I don’t scream and whine about it. I just keep looking till I find something that does fit, or buy stuff from the boys’ department.

          SUCK IT UP, CUNTS

      1. Time has certainly confirmed Jesse Helms’ observation that the ADA should be called the Lawyers Full Time Employmnet Act.

    7. 10,000 square miles of empty government mandated wheelchair accessible parking slots is not efficient land use.

      Note: I may or may not be exaggerating that 10,000 square mile number.

    8. How is this a problem? Why should anyone be able to externalize their opportunity costs through coercion?

      If people in wheelchairs went to get around, they can pay for it.

      Done and done.

  25. My argument is that Jim Crow was so bad that arguments about the reach of the commerce clause really didn’t outweigh the necessity of ending it.

    Then why not amend the Constitution, if the Constitution as written didn’t allow the government to prohibit racial discrimination on private property?

    Was ending private discrimination important enough to disregard our Constitution of limited, enumerated powers, and give the national government plenary power over the use of private property? Is that the position you’re taking, John?

    I have a question for the purists. What about the ADA? I think this is even more difficult a problem for those who claim that government shouldn’t interfere with business.

    Not really. Its the same issue, all over again. The national government doesn’t have the Constitutional authority to do this, but can get that authority if it can convince enough people to amend the Constitution.

    1. Was ending private discrimination

      Businesses that hold themselves out to the public are not purely private.

      1. Yes they are. Stop redefining words. You’re bootstrapping the hell out of that fallacy.

    2. “Was ending private discrimination important enough to disregard our Constitution of limited, enumerated powers, and give the national government plenary power over the use of private property? Is that the position you’re taking, John?”

      Yes. That is exactly my position. And any white person living in our free society who doesn’t at least take that argument seriously is either ignorant of how bad Jim Crow was or doesn’t care about its victims.

      What if Jim Crow were going on today. What if the civil rights movement were just starting now and nothing had changed since 1960. Would you honestly go down and look a black person in the face and tell them that you were sorry things sucked so bad for them but the Constitution is sacred and if keeping to it means they have to live as second class people for their entire life, that is just how it has to be? That is fucking nuts.

      1. Jim Crow is a moot point, as it will never be making a comeback – despite the bleatings of the leftists, that statement is chiseled in granite.

        1. Fine. Maybe now is the time to repeal the CRA. I am open to that argument. But don’t pretend that it wasn’t needed at the time.

          1. Constantly reliving the past is part of why we’re still having racial problems, John. The left acts like any minute now, we’ll be back to segregated lunch counters and bans on mixed-race marriages.

            Ain’t gonna happen. Riots are a bitch.

          2. Whatever happened to section 1983?

        2. “Jim Crow is a moot point, as it will never be making a comeback”

          Unless you live in Arizona and have an Hispanic accent.

          1. Not the same thing. Quit being disingenuous for the sake of rah-rahing for your party.

            1. It is you being disingenuous by refusing to see the parallels. Of course being Hispanic in Arizona is not the same as being black in Alabama circa 1930. But let’s not pretend that “Jim Crow” is a moot point for purposes of civil rights debates. History is prologue.

      2. John, with specific regard to the public accomodations provision of the CRA – yeah, I don’t care about the victims. Check off one name on the “Don’t care about the victims” list.

        If I possess a piece of property, you have no right to it or any expectation that I will let you access it or buy it. Since you have no pre-existing right, nor any expectation of possessing such a right in the future, if I keep the property to myself I’m not taking away from you anything that should be actionable.

        There are no “victims” anywhere who can claim that I have harmed them by not selling them the milk in my refrigerator at home. And I do not acknowledge, for even a moment, that there’s any difference between the property right I have to the milk in the fridge at home, and the same milk if I paint a “Milk Store” sign on my front door.

        To me, claiming that there is a class of “victims” who become such when they are denied my milk is like claiming that I’m creating “victims” when I refuse to give random people head. Random people have no right to have me give them head, so they aren’t losing anything actionable when I don’t.

        1. If you are running a business, that is a bit different than what is in your home.

          And your post is a good example of why people don’t take Libertarians seriously. You can’t claim that what was going on in the South in the 1960s is the same as you not selling me milk out of your refrigerator.

          You can claim that. But it just makes you look like a nut. Or if you don’t act like a nut in other areas, a racist looking for an excuse to justify your racism.

          I don’t think you are either. I think you are just wildly naive. But political opponents of Libertarians are not so charitable.

          1. You can’t claim that libertarians oppose the entire CRA and support Jim Crow laws, and yet you do.

          2. If you are running a business, that is a bit different than what is in your home.

            People keep saying this, but without any convincing explanation. The “open to the public” or “open for business (to everyone)” argument fails because by their own admission the business is not open to everyone.

            1. x,y: Whether something is a place of public accommodation is not up to the owner of the place, it is defined by law. The legal concept of “public accommodation” has been around since the 1800s.

              1. I’m not concerned with what the law says, I’m concerned with what’s right. Not only does the law violate property rights, it also rather disingenuously defines “public” accomodations as those not necessarily serving everyone — because by definition a discriminatory business is not open to the public. That’s the point I’m making.

                1. There are a million parts of our capitalist system that violate absolute property rights. Most of the time I would agree that the regulation or whatever is unwise. But when it comes to human rights, I have a different view of liberty.

                  1. “I have a different view of liberty”

                    What is your view of liberty? Do I have the “liberty” to tell you what to do on your property?

                    1. Am I running a public accommodation on that property?

                    2. “Am I running a public accommodation on that property?”

                      Apparently so, you invited people over didn’t you? You have not denied this.

                    3. I posted what people mean by “public accommodation” and it has nothing to do with inviting your friends over for a backyard barbecue.

                    4. The law may not define it as such but a good dictionary does.

                  2. There are a million parts of our capitalist system that violate absolute property rights. Most of the time I would agree that the regulation or whatever is unwise. But when it comes to human rights, I have a different view of liberty.

                    Define human rights.

          3. You can’t claim that what was going on in the South in the 1960s is the same as you not selling me milk out of your refrigerator.

            Government-sanctioned discrimination was going on in the South.

      3. So the Constitution should be followed as long as it is convenient. Good call.

        1. Hey, not like it’s treason or anything..

        2. There’s a constitutional right to discriminate?

          1. “or the right of the people peaceably to assemble”

            1. Or that takings clause.

      4. Would you honestly go down and look a black person in the face and tell them that you were sorry things sucked so bad for them but the Constitution is sacred and if keeping to it means they have to live as second class people for their entire life, that is just how it has to be?

        Our elected officials took an oath to preserve, protect, and defend the Constitution.

    3. The constitution was amended to prevent states from enforcing Jim Crow laws in 1865. Unfortunately your buddies in the progressive movement did everything they could to make that amendment toothless as possible.

      1. Exactly right. If the government had simply enforced the 14th amendment it would have struck down the Jim Crow laws without a need for the CRA.

        1. And the portions of the CRA that struck down Jim Crow laws are grounded in the 14th amendment.

          And no one is arguing otherwise, no matter how blinded John is by his father’s experience with racism.

        2. If “ifs and buts” were cookies and nuts, it’d be Christmas everyday.

          If we had some ham we could have ham and eggs, if we had eggs.

          1. Deep, thanks for sharing.

    4. The national government doesn’t have the Constitutional authority

      But you’re just factually wrong. The constitution isn’t whatever you claim it is, it’s what the case law determines.

      I ask again, where in the constitution does it say you have absolute, unfettered private property rights?

      1. Re: Tony,

        The Constitution is not a document that grants rights, it expressively limits the scope of government. The right to private property is a given, especially in light of what the 3th Amendment, the 4th Amendment and the 5th Amendment state.

        1. The constitution doesn’t bar me from killing pandas. Do I therefore have an unfettered right to kill pandas?

          1. Re: Tony,

            The constitution doesn’t bar me from killing pandas. Do I therefore have an unfettered right to kill pandas?

            Are they YOUR pandas? Because if they’re NOT, then your argument is moot.

            1. Assume they are my pandas.

              1. Re: Tony,

                Assume they are my pandas.

                Ok, assumed. So, what is now the point of your question?

              2. how about we don’t get into an endangered species act tangent and shift it over to killing pet fish or something. I kill lots of my fish all the time. A breeder has to cull after all.

                1. skr: the point is that even if it is an endangered species, it is still your property.

                  1. Yeah, Tony is pretty transparent.
                    But I believe there is actually no way to own a panda. IIRC, they are all the property of the PRC.

      2. The constitution isn’t a list of rights. It’s a list of what government has the power to do.

        1. One of those powers is eminent domain. How does that square with the absolute property rights concept?

          1. Re: Tony,

            One of those powers is eminent domain. How does that square with the absolute property rights concept?

            It doesn’t, and neither does the 16th Amendment. Nobody said the Constitution is an anarchist document, or did someone say that?

            1. So we don’t have absolute property rights?

              1. Idiot.

              2. Re: Tony,

                So we don’t have absolute property rights?

                No, we have leftist-defined property rights. That is, we live in dark ages . . .

              3. Have you not noticed that libertarians are against eminent domain, or something?

                1. Sorry, you guys aren’t always clear on the “is/ought” distinction.

          2. Eminent domain must be compensated.

  26. The answer is should have given:

    Why the fuck are you asking me a question about something that has no chance of coming up during my 6 year term in the Senate?

    The best part would be MSNBC having to pay the FCC fine.

    1. This.

  27. Seeing as how the states grant incorporation and limited liability, it seems they can ban discrimination since doing otherwise would violate the 14th amendment. Each taxpayer provides funds in order for states to provide limited liability to corporations within their state, yet if each patron is not provided access to said corporation it would violate equal protection.

    1. That’s actually not a bad argument, but I think it leaves out the fact that businesses probably pay their own freight in taxes. And LLC has no tangible cost to taxpayers en masse, just particular litigants. Not doing something (disallowing civil lawsuits to go after shareholders) is fairly cheap and surely subsumed by business taxes. And the fees and legal costs of establishing and maintaining LLC status.

      1. Libertarians need not worry about this argument because libertarians (not the Beltway types) don’t believe the state should be in the incorporation business, which necessarily means the state should not be in the business of granting certain groups of individuals limited liability.

      2. Yeah, the LLC argument is potent in both this and the first amendment context. However, the counter argument is that that restrictions inherent in extension of LLC privileges violate equal protection or condition speech in an unacceptable way.

        So basically, I think the unamended Constitution would give the Feds the right to condition LLCs a a privilege – however Federal regulation of LLC charters may or may not be a commerce clause overreach.

        I assume that perhaps article 5 of the 14th amendment may allow for such regulation, but if we get into the amended constitution, we have to again contend with 1st, 5th, 10th and 14th amendment issues.

        So that’s the one interesting debate that exists.

        Of course, neither should the Feds regulated LLCs, nor should LLCs exist at all. Down with limited liability.

    2. I should also note that states do not provide limited liability to companies via the incorporation process. What they do is provide (some degree) of limited liability to the owners. As long as I maintain the corporate form (no commingling of personal and corporate assets, among other things), my investment is a liability ceiling. I can lose it, but not my house too, for example.

      1. Also, also, not all businesses are incorporated.

        1. Yes, of course. LLCs, for example, are “organized.” The point is the same, you pedanitc, scum-sucking lawyer.

          1. pedanitc, scum-sucking lawyer.

            Take back that last one. Not even remotely true.

  28. Just be honest and say “We reserve the right to refuse service to niggers even though we benefit from the taxes they pay”.

    Oh, for fuck’s sake.

    1. Yeah, I know. Nobody likes it when a hypertechnical argument is met with a ridiculous but similarly hypertechnical argument.

      1. Don’t let the neo-nazis protest on the Mall because my tax dollars pay for that public land and I’m offended. Wait. What? A right you say?

        1. yep, right to free speech means more liberty. Right to patronize places of public accommodation also means more liberty.

          1. Do I have the right to put my lawn sign in your yard?

            1. My lawn is not a public accommodation. But if you are a utility, you can probably put your pipes under my property without compensation.

              1. “My lawn is not a public accommodation.”

                Has anyone other than yourself ever used your lawn for any purpose whatsoever? Have you not ever accommodated someone in some way using your lawn to do so?

                1. I’m not holding my lawn out to be a place of business or community activity.

                  1. “I’m not holding my lawn out to be a place of business or community activity.”

                    Really? So you have never invited any friends over who have walked on your lawn?

                    1. Inviting friends over the walk on my law doesn’t make it a place of public accommodation.

                      42 USC ? 12181(7) Public accommodation
                      The following private entities are considered public accommodations for purposes of this subchapter, if the operations of such entities affect commerce?
                      (A) an inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of such establishment as the residence of such proprietor;
                      (B) a restaurant, bar, or other establishment serving food or drink;
                      (C) a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment;
                      (D) an auditorium, convention center, lecture hall, or other place of public gathering;
                      (E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;
                      (F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment;
                      (G) a terminal, depot, or other station used for specified public transportation;
                      (H) a museum, library, gallery, or other place of public display or collection;
                      (I) a park, zoo, amusement park, or other place of recreation;
                      (J) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education;
                      (K) a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and
                      (L) a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.

                    2. This is circular logic. You are using the law itself to defend the very law we are discussing.

                    3. You wanted a definition of “public accommodation”, and I gave you one. You kept likening my front yard to a place of public accommodation, and that just isn’t the case.

                    4. Also, PIRS, since we are discussing this law and you keep attempting to apply it to areas, such as lawns, that are not contemplated by the law, I think it is reasonable to focus the debate on what we’re actually talking about.

                    5. The law may not define it as such but a good dictionary does.

              2. No, that’s a physical touching of property and even now still considered a taking. 100%

  29. I think Epstein is wrong about the origins of Paul’s name. My understand is that he was, in fact, not named after Ayn Rand.

    1. I don’t know, it seems like a fairly odd and conspicuous first name. Definitely causing some confusion here when people refer to “Randian” politics!

      1. His first name is Randall. IIRC, he was “Randy” until 1988, when he shortened it to “Rand” during his father’s run for prez on the LP ticket.

  30. Paul answered yes, based on a rote application of the Randian approach [???].

    The “Randian” approach? Imposing your will on another person’s choices is immoral from the standpoint of the ethics of liberty, not just Randian objectivism.

    “The correct answer to that question was no, for reasons that place normative libertarian theory [sic] in its proper social and historical context, to which Paul was blind.”

    libertarian law professor (and Reason contributor) Richard Epstein

    So Richard Epstein is instead an historicist, not a libertarian.

  31. As I was saying last night:
    New idea.

    Instead of banning private discrimination, start a consumer movement to get white consumers to preferentially patronize black-owned businesses.

    The fact that whites don’t tend to shop at “black” stores probably results (still today) in more economic harm than lunch-counter discrimination or hiring discrimination. This due to the difficulty in getting a small business running when your market is artificially limited to people of the same racial minority.

    I’ll note that one area where black entrepreneurs have really suceeded – the music industry – is one where the white population actually does purchase their product in large numbers.

    1. maybe whites don’t shop in “black” stores because black stores are in black neighborhoods?

      We should bus consumers, not just students.

      1. Maybe black-owned stores are in black neighborhoods because black store owners know that’s where the vast majority of their customers are?

        1. So why do these blacks self-segregate?

          1. Because white people won’t shop at them. That’s what I’ve been trying to get at.

            White people preferentially shop at white-owned retail stores with white staff, and eat at white-owned restaurants with white waiters.

            This, IMO has a strongly negative effect on black-owned businesses. It’s very difficult to start a small business if 85% of the population avoids shopping in your store.

            1. Man, I don’t care what race the people who work at whatever store are. I care what products or services they sell, and how they compare to similar providers.

              The only black-owned/run businesses I can think of are rap/hip-hop music stores, and, like, barbershops, though. At least around here. And I don’t really like rap or hip-hop much. Not because of the race thing, but because as a general rule, the music doesn’t appeal to me. So yeah, I’m not going to shop at the rap store. Sorry to have such a negative impact on black entrepeneurs.

              Sell me something I want at a price I consider reasonable, and I’ll patronize. I don’t care if you’re black, brown, white, or some unholy shade of green.

              1. You might. I’m not sure the rest of the non-black population is likely to.

                IMO, it’s probably enough of a bias to make it harder for blacks to start up businesses.

      2. I can imagine those being like DUI checkpoints. Whenever one pulls into a supermarket , a few police officers will randomly grab some customers before they enter, drive them to another neighborhood, and drop them off at a minority-owned business. They will not be transported back until they purchase an acceptable amount of groceries.

        1. You point is amusing as a mirror image of the Title II provisions, but my sugesstion is to start something like the ‘fair trade’ coffee movement, and have white people feel good about themselves for buying products from minority, particularly black-owned, businesses.

          It’s kind of odd how nobody has really notice consumer-side discrimination all these years ….

          1. Seems like this is done frequently…

            That said, I have never noticed the consumer discrimination you are talking about occurring in a big way any place I have lived. The only times I do see it are in the restaurant business…and in this case the discrimination is in favor of the minority (i.e., people want “authentic” cuisine).

            1. How about the retail clothing business? Or the mechanic you take your car to? Or your dentist or doctor?

              I’ll bet that the vast majority of black dentists and doctors see mainly black patients. Because white people will self-select to go to white dentists and doctors.

              Similarly, I bet a lot of white people feel more comfortable buying a used car from a white man, or taking his car to a white repairman.

              This isn’t necessarily overt racism. Just enough to make it harder for black entrepreneurs to get going. So you have fewer blacks owning their own business, which makes it harder to build capital.

              My general thrust here is taht consumer-side discrimination is probably worse than private owners not serving blacks. And can be remedied through social pressure, which for some reason nobody has actually attempted.

              1. Hazel where in the hell do you live? Maybe I’m naive to the vast undercurrent of market racism since I live in an urban area where the only thing diversity does is make people more tolerant more liberal and more appreciative of good food.

                1. Tony, there’s more to diversity than food. Jesus.

  32. I think the act was necessary back then to reverse Jim Crow laws, but is no longer necessary or relevant, as no business that openly discriminated could survive in a free market today. I suppose creating yet more laws to fix previously worse laws is an ugly but necessary side effect of the Libertarian platform.

    1. What purpose could repealing it possibly serve, then?

      If you admit that the law was necessary to combat a vast social injustice, are you claiming it was constitutional then but not now? Or are you saying sometimes we need to go beyond the constitution to deal with practical reality?

      Why can’t you just relax and admit it’s both constitutional and practically necessary?

      The only thing that would happen if a movement appeared to repeal it would be horror on the part of black citizens, seems to me.

      1. I don’t think anyone wants to bother attempting to repeal it. This is way down the list as anti-libertarian policies in effect today go. makes mroe sense to get a libertarian court, and wait for them to eventually strike it down.

      2. I guess I’m saying that from a Libertarian perspective, we are justified in sometimes creating bad laws in order to combat worse laws.

        The Civil Rights Act was never constitutional (banning bias in public sector is OK, but not in private sector), however I don’t advocate repeal now 46 years after the fact. I look at the act as a historical artifact which has only had the small side-effect of generating frivolous discrimination lawsuits against American businesses.

        What I’m trying to understand is: was it worth it in order to reverse the far more unconstitutional Jim Crow laws? at what point do you go from idealistic Libertarianism to practical?

        Also, agree that the cost of repealing the private sector part of the bill would be too high for such impotent and ancient legislation.

        1. Thanks for clarifying your point. As supportive as I am for taking practical steps to end injustices that are widespread in the private sector, I’m uncomfortable with the idea that such practicality extends to creating unconstitutional laws.

          Whether it’s actually justifiable under interstate commerce as the founders envisioned, I’m glad that case law has found it to be so.

          The principle is that businesses that are open to the public get a lot of benefits from their society: public utilities and roads etc.; a customer base with the money to spend on your service thanks to our relatively prosperous socioeconomic structure; police and fire protection; the ability to engage in commerce at all thanks to a coherent monetary system. I think that society should be able to set reasonable standards of access if you are going to have the privilege of making money from it.

          1. Thanks for clarifying your point. As supportive as I am for taking practical steps to end injustices that are widespread in the private sector, I’m uncomfortable with the idea that such practicality extends to creating unconstitutional laws.

            In order for there to be an injustice, a right has to be violated.

            1. New rights can be discovered/invented and that’s been the project of western civilization since it began.

              There is now a right not to be discriminated against by businesses that serve the public in this country. Hooray! Freedom has increased.

              1. There is now a right not to be discriminated against by businesses that serve the public in this country. Hooray! Freedom has increased.

                So what constitutional amendment created this right?

                1. None, a law did. Amendment wasn’t necessary. Aren’t you glad? More freedom! Yay! …

  33. Re: Tony,

    I ask again, where in the constitution does it say you have absolute, unfettered private property rights?

    The Constitution does not grant rights, Tony – you are already born with them.

    1. People forget this point – it’s very important. The constitution wasn’t written to define the rights of individuals and leave the rest up to the the federal government. It was written to LIMIT the federal government so that the unalienable rights of individuals could not be infringed upon.

      1. Wasn’t that the slippery slope of the Bill of Rights debate?

  34. Re: Tony,

    Do you have the right to murder babies as long as it’s on your own property?

    Your thinking is very one-dimensional. The baby also has absolute property rights – he owns HIS body. Ergo, the other property owner cannot kill him. If he COULD, then you’re not talking about ABSOLUTE property rights, but actually RELATIVE property rights (as in “well, it depends…”)

    1. So property rights are restricted with respect to killing babies. Anything else? Oh yes, let’s include anything else that’s illegal, defying a warrant (granting the government’s right to trespass, except it’s not trespassing), selling poisoned food, having unsafe working conditions, and about a thousand other things including discriminating based on race.

      1. Tony, your property rights are restricted only by the rights of others, not your pet peeves. No one has the right not to be discriminated against because that would contradict the basic property rights of the individual doing the discriminating. By your logic, consumers should be forced to patronize black-owned and white-owned businesses equally.

        1. I don’t see why that follows at all, except in the mind of a freshman logic student which seems to be the main constituency here.

        2. Maybe that’s where we differ. I believe we have a right to be free from discrimination in the marketplace. Your home is a different story.

  35. This is what Rand Paul should have said:

    Can a black restaurant owner refuse service to a Klansmen?

    Can a gay owner refuse service to a homophobic customer?

    1. Being a Klansman or a homophobe is a choice.

      1. Can a black restaurant owner refuse service to a white person?

        Can a gay owner refuse service to a straight person?

      2. “Being a Klansman or a homophobe is a choice.”

        But the principle of property rights involved in both cases is the same.

        1. But the principle of human rights is different.

          1. “But the principle of human rights is different.”

            The term “human rights” means different things to different people. Just so we are on the same page, could you please explain how YOU personally, define the term.

            1. It is sufficient to say that racial discrimination in the marketplace is covered by my definition.

              1. OK … so then what is your definition?

              2. So, I have the right to be served by any business owner? I can just go in to any restaurant and demand to be served? Awesome.

          2. How does it violate my rights if a black owner doesn’t want to serve me food? It is essentially a trade – I trade my pieces of green paper for his food. If he doesn’t want to make the trade, fine. I’ll make it with someone else. It’s his damn restuaurant and his damn food. If he doesn’t like my money, someone else will.

            The same if reversed: if I refuse to accept his food because he’s a black owner. He doesn’t care much – someone else will eat at his restaurant. It’s my choice to make. It’s my body, and I can choose what food and from what restaurant I want to accept, even if I refuse to eat at his restaurant for racist reasons.

            I don’t have a right to be accepted by every restaurant owner. But the restaurant has the right to refuse service to whoever he wants. It’s his damn restaurant and my damn money! Simply put, Lamar, you’re straight-up wrong.

            1. If that were only true in practice.

              1. The typical statist.

                Straw arguments. No substance. Calls on the state to solve any “social injustice.”

                1. Yes, Lamar the big giant statist yet for some reason continues to write checks to the Reason Foundation. Jerk off.

              2. If that were only true in practice.

                Of course it is true in practice.

                1. The free market is the best allocator of capital and resources. As an enforcer of human rights, not so much.

                  1. You still have not defined what you mean by “human rights” have you? Very convienient.

  36. I also hate racists but the problem with laws such as this is that it often creates more of the problem it purports to solve. How much do you know about the history of Yugoslavia? Back before the breakup there were laws against even speaking ill of another ethnic group within Yugoslavia. The result was built up hatred that had no way to vent itself. The result was, once the Iron curtain fell that ethnic hatred spilled itself out in very horrific ways. We all know what that resulted in.

    Allowing private people to discriminate in their own private ways can actually create a SAFER situation for racial and ethnic minorities. Besides, why would you want to do business with someone who hates your guts anyway?

    Excellent point. The era after the passage of the CRA was the era of George Wallace and Stokely Carmichael. To say that everything changed for the better when the law passed is just naive. Tensions were even more exacerbated, businesses were even more prone to ignore the law in actual practice (as pointed out, lawsuits are rare under title ii, practically speaking, if someone throws you out of their ‘public accommodation’ its not worth your time unless you are an activist to sue). What we view as the normative results of the law where those matters have been reversed every HR departments is damn careful to follow the letter of the law, is a relatively recent phenomenon which reflects economic and social betterment in spite of government efforts to stifle improvement than the efficacy of the law.

  37. And you think that it is A-Ok to have an entire society that does that and treats the majority of its population as less than human? If sitting here fat dumb and happy forty years on and thinking that black people should have been subjected to Jim Crow for even one more day so that I can later wax philosophical about property rights means being one of you, no I am not one of you and never will be.

    We are not talking about too much salt in foods or people having to pay for their own retirements. We are talking about the organized and systematic oppression of millions of American citizens.

    John, I applaud you.

    1. For being an idiot?

      NO ONE on this thread has argued for another day of Jim Crow. Title 2 has nothing to do with Jim Crow at all.

      1. For keeping human rights the priority over a gottdam political philosophy.

        GO BACK and read John’s other comments about Jim Crow and the CRA.

        1. “For keeping human rights the priority over a gottdam political philosophy.”

          The term “human rights” means different things to different people. Could you please explain what you mean by the term?

          1. PIRS,
            The definition I am using is contained entirely in the context of John’s comment.

            1. OK, but, but my question is do you mean it to include the prohibition of voluntary discrimination? I want to emphasize I think racists are the scum of the Earth – but principles mean nothing if I am unwilling to defend the rights of even the scum of the Earth. So, by your definition, do the scum of the Earth have a human right to discriminate on the basis of race?

              1. If you read John’s comments, I think he addresses that. At the time, the choice was to end apartheid in the US or to protect the racists’ property rights. If the middle ground was to wait it out, this was not acceptable.

                Related to this discussion:
                I just read a biography of Jackie Robinson. Conservative as he was, his involvement in the civil rights movement provides an interesting perspective.

                1. “At the time, the choice was to end apartheid in the US or to protect the racists’ property rights.”

                  These are false alternatives. All one needed to do is remove the legal barriers to black people starting their own business and have equality under the law and the who racist system would soon crumble of its own weight.

                  1. That’s the speculative alternative history I was waiting for.

                    1. The laws of economics are not speculative any more than the laws of physics are.

  38. John, I’m disappointed on two counts:

    (1) You keep conflating Jim Crow (state-mandated racial discrimination, which no one supports) and private racial discrimination. You do understand that they are not the same thing?

    (2) You believe that the destruction of our Constitutional limits on the power of government is justified, in the right cause, rather than going to the trouble of amending the Constitution. You think the government did the right thing when it kicked the door down, so don’t complain when it walks in and takes over.

    1. RC.

      You either don’t understand or haven’t read any of my posts. First, Jim Crow was both private and public discrimination. As Epstein rightly points out one supported the other. Second, I have said about 20 times on this thread that while circumstances in 1964 probably justified the CRA, it is not 1964 anymore. I would be completely open to the idea of repealing it even though I would have supported it, because the Slaughter House Cases left us no alternative, in 1964.

      As far as the destruction of the Constitutional limits of power, yes I think they needed to go in 1964. That is why I hate Jim Crow southerners. Their degeneracy left the country the choice of breaking down the constitutional barriers to power or living with Jim Crow for who knows how long.

      The point I am trying to make and that no one here wants to listen to is that we had two alternatives in 1964; either live by the Constitution and tell the blacks sorry but you will have to live under Jim Crow for a few more years or for how long we don’t know until white Southerners decide to change, or pass the CRA and end it. For you and I, two wealthy white guys who have never experienced anything like Jim Crow to sit around in 2010 and wax philosophical about how it didn’t matter how long Jim Crow lasted and how property rights are more important than ending it, just makes you look like a douschebag. And a serious one at that.

      You and the others on this thread sit around and talk about these things like it would have been no big deal if Jim Crow will still around today or had lasted another ten or fifteen years. It would have been a big deal. A very big deal. And while the sins of big government are great today, they are nothing compared to the sins of Jim Crow. Yeah, it sucks that the limits of government were lowered. I would support putting them back. But I only support doing that because things are not the same today as they were in 1964.

      The problem with ideologies and intellectuals is that they forget that people are the most important thing. Leftists do this most often. But Libertarians will do it sometimes. And this is when it is the most considering CRA and Jim Crow. You remind me of COL Bat Guano in Dr. Strangelove. Lionel Mandrake asked him to shoot up a coke machine to get change to call the President to stop a nuclear war and Guano says “well that is private property”.

      The same thing is happening here. You are placing yourself back to 1964 and seeing millions of people living in what amounts to bondage and when someone says it needs to stop saying “that is private property”. It is just lunacy.

      You can scream you don’t support segregation all you want. And I don’t think you do. But you have to understand the situation in 1964. In 1964, if the Feds hadn’t acted, segregation would have continued. So the choice was act or watch segregation go on for God knows how long. To argue that we should not have acted is to say that the Constitution is more important than people. And as much as I like the constitution, it is not. People are more important.

      1. Even assuming you are right about the term “Jim Crow”*, you are admitting that the term is ambiguous by saying that it referred to two different things. If you used terminology that differentiated the government supported discrimination from the native public discrimination, I think the conversations would be much more productive.

        * most people take “Jim Crow” to refer to the laws only

        1. The southern system of segregation was supported by violence and intimidation and a large amount of social support as well as state laws. Passing a law that said states could no longer enforce segregation would have helped, but it wouldn’t have ended segregation. It took the CRA and a lot of enforcement to do that.

          1. I don’t disagree with your first sentence. In fact, this is exactly the sort of clarity I was suggesting, not using a loaded term that apparently means different things to different people.

      2. John,

        I’m with you on this. I have never understood “Jim Crow” to refer only to the laws. I understand it as the Jim Crow era, and that the term refers to customs and well as laws.

        1. The term Jim Crow specifically refers to the Jim Crow laws.

          1. No, the term “Jim Crow laws” refers to the Jim Crow laws. The term “Jim Crow” refers to “segregation laws, rules, and customs which arose after Reconstruction ended in 1877 and continued until the mid-1960s.”

            http://www.ferris.edu/jimcrow/who.htm

      3. Great post John.

        1. Yeah, GREAT post, John.

      4. To argue that we should not have acted is to say that the Constitution is more important than people. And as much as I like the constitution, it is not. People are more important.

        So you are willing for the government to violate the Constitution if the cause is good?

        Fine, but remember that other people have different ideas for good causes.

        1. True, and John’s anxiety would be assuaged if he’d just allow a little broader interpretation of the constitution.

          Let’s put it another way: the ERA, the end of systematic discrimination, is an unalloyed good thing. If it wasn’t allowed in the constitution then the constitution was flawed. Thankfully it’s not something we have to worry about since the courts have consistently acknowledged its legitimacy.

          1. What a classic. The ends are good, therefore the means are good. Ipso facto, right Tony?

            1. No… but I don’t see how the means were bad here.

              The only argument you guys have is that allowing this law under the constitution opens a slippery slope toward totalitarianism. Take your meds. It will be ok.

      5. Sorry John, but the ends don’t justify the means.

        1. What means? Passing a law and having it upheld in court? What is the horrible price we paid for this law? Restricting the freedom of business owners to take part in apartheid? Do you have anything to offer besides a cliche?

  39. And you think that it is A-Ok to have an entire society that does that and treats the majority of its population as less than human?

    Jeebus, John, you sound more like an Obamanaut the longer you go on. You do understand that stopping short of full-on jackbooted state prohibition of X, is not the same thing as being A-OK with X, right?

    1. Right. Turning your head and tutting that you would love to do something about it, but it would violate your principles is one that you find morally defensible.

      1. There are many thing you can do to show your non-supportiveness of racism, such as boycotting, protesting, and awareness-raising, that have nothing to do with violating someone’s property rights, dumbass.

        1. Oh, oh, look at me! I’m showing my non-supportiveness of racism! I’m changing the world!

          1. Waaah waaaah, it’s really hard to get rid of racists! Why won’t Mommy and Daddy just let me kill them? Racists are subhuman anyway!

            1. Nobody is telling racists to stop being racist. We just don’t allow it in the marketplace.

  40. I’m not even going to read the comments. I’m guessing the reason there are 200+ is because the Paulistas have emerged to defend this stupid shit.

    Someone highlight the dumbest one for me. I can’t go looking for it… i still feel ill after the Chris Hedges post.

    1. Read the ones by Tony.

    2. Do you understand the point Rand Paul was making?

      1. Yes, we understand the point he was making. We understand unintended consequences. If you want to jabber with a bunch of uninformed yokels, go over to HuffPo. We have simply arrived at a different conclusion than you.

        1. My question was aimed at Gilmore. If you would like to respond we are engaging in debate upthread. This question was of Gilmore.

          1. Well, accidents happen.

            1. That’s what I said.

  41. I see that people here still don’t understand the ADA…particularly in regards to accommodations for employees.

    An ADA claim can not be valid if your disability prevents you from being able to do the job. It is only valid if you are able to do the job, but can’t because the business will not make a reasonable accommodation. “Reasonable accommodations” takes the cost to the business into account. It would be unreasonable to expect the business to carry a heavy burden to accommodate your disability.

    1. If it were reasonable, the business would have done it at already.

  42. Ohh… and “nut allergy”…not covered under the ADA…likewise diabetes itself is not covered unless you can demonstrate secondary disabilities resulting from it OR that the employer is discriminating against you because he FALSELY believes that your condition makes you unable to do the job.

    1. You don’t really expect us to make cogent arguments to counter Tony’s nonsense, do you? He can’t even admit a difference between free trade and crony capitalism.

      1. That’s because you guys will call total indentured servitude of all humans save one “freedom” as long as government isn’t doing the enslaving.

        1. Are you a total moron? Libertarians do favor laws protecting individual rights.

          We’re not against government intervening to stop people from harming eachother. We’re just against the goverment forcing individuals to take positive actions to benefit others.

          1. There’s no real difference. Forcing me not to trespass on your property means I have to take the positive action of walking around it, for your benefit.

            1. Your trolling has improved considerably.

            2. “Forcing me not to tresspass”.

              Bullshit. Tresspassing actively harms the landowner. Not selling someone a sandwich doesn’t harm the consumer.

              1. I disagree. Racial discrimination does harm to the community, and hence to each individual in that community.

                1. I could just as easily say that political dissent harms national unity, and hence harms every citizen.

                  Therefore, speaking out against the government in times of war should be illegal.

                  1. Racial discrimination reduces the informational inputs to the market, decreasing its effectiveness. By contrast, speech adds information to the marketplace of ideas, increasing its effectiveness.

                2. Tony, your presence on this planet is doing harm towards me and the community. Leave.

            3. “There’s no real difference. Forcing me not to trespass on your property means I have to take the positive action of walking around it, for your benefit.”

              In this scene, Tony acts like he doesn’t know how rights work.

              1. I suspect you don’t realize that there is no thick black line between negative and positive rights.

                1. Sure there is.

                2. Sure there is.

      2. Well, to be fair, Tony did bring up the “reasonable” aspect of the ADA.

        Slippery slope arguments then began slipping and sliding around.

        The reality of ADA is that people have found it very hard to get relief under ADA because the “that’s an unreasonable accommodation” argument works for so many cases.

        In practice, the law ends up having pretty weak teeth.

  43. Laws against murder are discriminatory against my followers who are of a religion that teaches them to kill all infidels who are unwilling to convert.

  44. John at 3:18 sez:

    The point I am trying to make and that no one here wants to listen to is that we had two alternatives in 1964; either live by the Constitution and tell the blacks sorry but you will have to live under Jim Crow for a few more years or for how long we don’t know until white Southerners decide to change, or pass the CRA and end it.

    No, we had at least two other alternatives:

    (1) Pass the portions of the CRA that were actually constitutional, but not the unconstitutional restrictions on private property and private activity, and/or

    (2) Pass an amendment to the Constitution to give the federal government the authority to control private property and private activity.

    Seriously, John, usually I follow along with your thinking more than many others here, but on this one, I think you’re just out there.

    A CRA without the unconstitutional bits would still have been a hell of a step in the right direction and would have broken the back of Jim Crow (laws) and private discrimination.

    A Constitutional amendment either would have passed, making all you want to do perfectly legal, or it wouldn’t have, preserving our Constitutional government. Either way, we would be better off.

    But once you say, “Well, this social cause is so worthy we needn’t bother ourselves with amending the Constitution”, you have opened the door for every snivelling kleptocratic nanny-state redistributionist control freak to play out their fantasies with your government.

    1. John made the point that without the federal gov’t stepping in, local gov’ts would have found ways to force business owners to remain segregated. Do you disagree?

      1. John made the point that without the federal gov’t stepping in, local gov’ts would have found ways to force business owners to remain segregated. Do you disagree?

        Yes, they would have.

        Enforcing the 14th has been a legitimate function of the federal government since 1868.

        1. Enforcement of the 14th Amendment and the CRA are separate but equal.

          1. Except that title II doesn’t address the 14th amendment’s state action requirement.

    2. Pass an amendment to the Constitution to give the federal government the authority to control private property and private activity.

      So the only thing standing in the way of you supporting all those federal activities you abhor as a part of your philosophical DNA is a 2/3 vote in Congress (or 2/3 vote of state legislatures) ratified by 3/4 of the states?

      Why not just stop worrying and accept case law precedent on interstate commerce?

      1. Democracy sucks, eh?

  45. What Rand Paul REALLY should have said:

    1. Privately owned businesses are not public properties.

    2. The a homeowner can discriminate in choosing who can and who cannot enter his private property. Therefore a restaurant owner should be able to do the same.

    THE END.

    1. Do you really fancy yourself clever? Rachel Maddow would eat you for breakfast. Hell, WGN Morning News would have you begging for mommy.

      1. Clever? Possibly. It’s pretty hard for people gauge their own intelligence.

        Correct? Yes.

        Remember kids, just because a pundit is on TV doesn’t mean they know what the fuck they’re talking about. highnumber thinks that number of viewers and ratings are equivalent to smarts. Don’t fall into this fallacy.

        1. Don’t strain yourself – it’s been easy for me to gauge your intelligence.

          No, that’s not right. I don’t think you are unintelligent. I think you are viewing this issue through the wrong filter. My suggestion to you is to read up on the civil rights struggle.

          1. Don’t strain yourself – it’s been easy for me to gauge your intelligence.

            No, that’s not right. I don’t think you are unintelligent. I think you are viewing this issue through the wrong filter. My suggestion to you is to read up on the civil rights struggle.

            Fuck you, honky. You think you have a conscience because you point your finger and beat your brows against those with an unpopular but principled stand? No, you fucking don’t. Your kind are the worst pieces of shit of them all. Pat your back on somebody else’s dime and leave the black man out of you drama.

            Again, fuck you.

            1. fuck yerself, sock puppet.

              1. Forgot to switch back, and can’t now, for that would mean Episiarch would know I agree with him on something.

                Still, fuck you.

          2. I took history in high school buddy. That doesn’t change my principles in this matter. Look at it through whatever filter you want. The fact is that businesses are not public properties and property owners have the right to restrict whomever they wish from their property, regardless of their reasons for doing so.

            1. Not on Main Street.

            2. We all have principles. Sometimes our principles come into conflict with other principles we hold. We may find that we have to prioritize. As John said, “To argue that we should not have acted is to say that the Constitution is more important than people. And as much as I like the constitution, it is not. People are more important.”

  46. Could Tony or John tell me if they think a black man has to say yes if a white man wants to enter his home?

    1. highnumber? Anyone?

    2. What does a man’s home have to do with places of public accommodation?

    3. Nobody’s talking about private homes.

  47. Can’t we all just realize Episiarch was right,

    Yes, let’s all get caught up in a fervor over a stupid argument about semantics over Rand Paul. Exactly what TEAM BLUE wants right now: a distraction from how much they’re going to get hammered in November.

    and move the discussion along to something more pertinent like ending the drug war? Swat raids done a dozen times a day or every bit as violent as lynchings with people unnecessarily and unjustly getting killed. You wonder why people tolerated racism and its effects on blacks? Why do you have to wonder when you have what is going on around you but outside your own neighborhood? Out of sight, out of mind.

  48. Guys, as long as you dedicate so much time to arguing over such trivial aspects of private business restriction (not serving people because of their race), the world outside of the Libertarian sphere (reality) will continue to mock degrade, and make absolute buffoons of you. You have to care.

    This is the problem with ideology such as yours: Whatever you might win from such arguments, it is not worth the effort that you have to put into it.

    Talk about a lack of priorities. This masturbatory philosophizing is only making you appear inordinately concerned with the ability for businesses to discriminate based upon race.

    This is not an issue that will improve our society, nor is it an issue that will, or has gravely affected free enterprise. So, why on Earth are you goons so invested in it?

    Reality has now had a taste of Libertarian ideals, and reality has said “Thank you, but no.”

    At what point do you acknowledge that? Is there an endgame scenario where you will have accepted that much of your vision is unworkable, or is it simply a matter of clinging to what is a cult-like political philosophy?

    What are the standards for Libertarians being proven wrong? I’m beginning to think that there aren’t any. It’s pure identity politics.

    If it is simply a matter of ego, then I suggest therapy. It seems to me that so many of you have based your entire lives around this ideology that moderating yourselves at this point would be akin to suicide. You’re that invested in not being seen as wrong.

    All I’m asking you to do is to think about the context in which you are discussing these issues. It is beginning to resemble a form of madness. I mean that. I’m not simply trying to push buttons.

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