Because blacks were regarded as inferior, both in "morals as well as in politics,' Chief Justice Taney reasoned that they could not possibly have been part of the political community that formed the nation, and therefore could not be full and equal citizens of that nation. It was the prejudices of white people, not the discrimination and prejudices of the states, that ultimately led the Chief Justice to inscribe a race line into the heart of American citizenship. The Fourteenth Amendment, the Reconstruction Amendment that underpins the Civil Rights Acts, was passed specifically for the purpose of overturning Chief Justice Taney's legal holding. It did precisely that, first and foremost, by extending the status of national citizenship to all persons born or naturalized here, not simply white persons. And it was passed over the objection of President Johnson, who vetoed the precursor Civil Rights Act of 1866 precisely because he believed it went too far, reaching beyond state action and into private conduct, and was therefore unconstitutional. In fact, the Fourteenth Amendment was passed to override such objections, and put them to rest forever.
The distinction that Rand Paul is making between private and public discrimination, between state sponsored segregation and Jim Crow and private discrimination, is a false one. Not only are laws a product of private values, but laws also drive and influence private attitudes. A history of race in North America makes clear that racial attitudes and racial prejudices were, in large measure, a product of colonial laws, such as colonial anti-miscegenation statutes, which accelerated the understanding of racial difference. In fact, colonial elites (the colonies were not democracies) passed the first anti-miscegenation law in 1662, and did so specifically to keep the races apart as a way of color-coding labor, a process instrumental to the development and promotion of racial prejudice that would accompany and come to justify full blown racial slavery. As Steve Martinot points out, if there had been general antipathy to mixed marriages, its occurrence would have been minimal or required no law to prevent. As a result, these colonial statutes, and others serving similar ends, were a precondition to the full development of a racial worldview, and the racial prejudice that it engendered.
Private attitudes and private market decisions are often a product of or influenced by state action, and state action is often a product of or influenced by private attitudes and private conduct. Libertarians elide this reality. Yet, no one can deny that the market demand for automobiles is preconditioned by the state created network of highways and roads that make automobile travel both convenient and possible. The private market and state action are not as neatly divisible as libertarians assert, and this is no less true in the race context, where state action and private attitudes and market behavior are deeply intertwined.
The Civil Rights Acts and the Reconstruction Amendments whose values they carry were targeted at racial discrimination in its entirety, both its expression in law, but also at the social norms and private customs that those laws embodied. The Radical Republicans not Rand Paul and his fellow tea partiers but the Reconstruction era Republicans, sought not just to free slaves and make citizens of them, but to remake society and to purge our nation from the racial prejudice that was used to justify racial slavery and that survived its aftermath. After all, if Chief Justice Taney denied black's citizenship because of social relations and private attitudes, then reversing that decision, and granting full citizenship to blacks, not just as a legal technicality, but as a matter of social reality, required that those amendments reach into the sphere of private conduct. The Civil Rights Acts of the 1960s were an attempt to see that promise fulfilled.
The Civil Rights Acts were targeted at racial discrimination broadly, both at the racist attitudes and private conduct that continues to negatively affect so many in our society, and at the legislation that embodied those racist attitudes. What Rand Paul sees as government overreach and interference in private markets is nothing less than a moral imperative to ensure a fair and just society, to guarantee that no one is denied a job, a promotion or other opportunities to succeed in life because of their race, sex, religion, familial status, or disability. Hiding behind the claim that the purpose of the Civil Rights Act was simply an attempt to redress institutionalized discrimination both misses the point and is entirely wrong. If someone asks Rand Paul specifically about the Fair Housing Act, which targets private housing discrimination, he won't be able to hide for very long.
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Stephen Menendian is the senior legal research associate at the Kirwan Institute for the Study of Race and Ethnicity at the Ohio State University. Stephen directs and supervises the Institute's legal advocacy, analysis and research, and manages many of the Institute's most important projects.His principal areas of advocacy and scholarship include education, civil rights and human rights, Constitutional law, the racialization of opportunity structures, talking about race, systems thinking and implicit bias.
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