Ruth Marcus of the Washington Post beat me to the punch in noting the
similarity between Republican senatorial candidate Rand Paul’s recent
ruminations about the 1964 Civil Rights Act and an ancient (1963)
article by Robert Bork in The New Republic. That article played a big
role in defeating Ronald Reagan’s nomination of Bork to the Supreme
Court in 1987. Democrats hope that Paul’s comments may have a similar
career-crushing effect on him.
The argument in both cases is
boilerplate libertarianism: racial discrimination may be very wrong,
but the government doesn’t exist to right every wrong. If someone
doesn’t want to serve African-Americans at his or her lunch counter,
that’s his or her own business, not the government’s. Bork described
the imminent Civil Rights Act as “regulation by which the morals of the
majority are self-righteously imposed upon a minority,” and he compared
it to Prohibition.
Rand Paul (son of Ron) is surely sorry he
ever wandered into this thicket. He made the classic political
beginner’s mistake of listening to a question, thinking about it, and
then answering it honestly. Senator Jon Kyle no doubt expressed the
view of many Republicans when he said, in effect: save all that
thinking and stuff for dorm-room bull sessions. We’ve got elections to
win. This doesn’t help.
I, on the other hand, am glad that Rand
Paul brought this up. And I wish The New Republic would put the Bork
article on-line. Not just because it will embarrass Republicans, but
because it is a healthy reminder of how big a deal the Civil Rights Act
was. Today, it’s hard to imagine why anyone except a racist would
oppose this exercise of social engineering. Bork, a Yale Law School
professor at the time, and no racist, makes a case for freedom to
discriminate which is not persuasive. But it ought to give you pause.
Or turn it the other way: what political disagreements today—when
everybody agrees about the Civil Rights Act-- will seem inexplicable 47
years from now?
Bork, by the way, did not remain a libertarian
for long. By the time he had his 15 minutes, he was sneering at “the
shopworn slogan that the individual should be free to do as he sees fit
so long as he does no harm to others.” And, in hindsight, he was in
favor of the Civil Rights Act.
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