Why Rand Paul is wrong about Title II

by Roger Koppl

Rand Paul won the Republican primary in the Kentucky Senate race and almost immediately stepped into a big pile of steaming controversy by telling Rachel Maddow that he did not support Title II of the Civil Rights Act of 1964.  Since then few voices have defended his statements on Maddow’s show, with John Stossel as one of the rare exceptions.  In his recent Christian Science Monitor op-ed on this topic, Sheldon Richman defends Paul’s statements saying, “individuals are either free to do anything peaceful or they are not.”  I reject libertarian objections to Title II precisely because I agree with the quoted remark: individuals are either free to do anything peaceful or not. (For the record: I’m not a libertarian, but the quoted statement is a logical truth, not a political program.)  Black and white people in the recently-Jim-Crow South would not have been free to associate without the assistance of Title II.

There was quite bit of non-state violence in opposition to integration.  The murder of Medgar Evers is an historical representation of the problem.  Harper Lee’s “To Kill a Mockingbird” is a fictional representation of the same problem.  Thus, an entrepreneur who served black and white customers indiscriminately might have been at personal risk of injury or death.  Non-state actors used coercion to prevent free association.  In that context, it makes sense to defend the right of association by prohibiting “places of public accommodation” from discriminating on the basis of “race, color, religion, or national origin.”  The law protected entrepreneurs by making it hard for persons who prefer forced segregation of the races to identify fitting targets of racist violence.  It would have been better if no coercion had been applied either by state actors or non-state actors.  But that option was not available.  Title II was a reasonable pro-liberty measure to reduce coercive restrictions on the right of association.

We cannot measure how much coercion would have been applied to prevent blacks and whites from associating had Title II been absent from the bill.  We cannot measure it the way we can measure the circumference of the earth.  Part of the problem is that coercion includes the threat of violence and the threat of non-state violence is vague and hard to measure.  It is very real nevertheless.  Thus, it might be possible to challenge the empirical grounds of my argument.  But I think the history of the civil rights movement contains enough episodes of segregationist violence to support the hypothesis that Title II reduced coercive limitations of the right of association.

50 thoughts on “Why Rand Paul is wrong about Title II

  1. It is disturbing that anyone could write such a piece. It is one thing to be against freedom; lots of people hate freedom. That is, to some degree, a logical position. However, your post has a doublethink quality that defies belief.

    We should prohibit one peaceful act, because with out such prohibitions people would face the threat of violence from another murderous group of thugs, that you have decided are more evil? How about, maybe, try to stop crime? Or have you, despite being a not a libertarian, realized that the state is unable to even perform the most basic functions? Why not prevent morons from voting so as to avoid pointless war? That seems a more sensible compromise and would likely save more lives (and tax dollars). I could think of a million better ways to slide down your slippery slope, but I do not suspect it would help.

    Freedom truly is slavery.

  2. “Black and white people in the recently-Jim-Crow South would not have been free to associate without the assistance of Title II.”

    While many people view, and continue to view, Title II as “necessary” during its time period, we should all ask why.

    From http://www.jimcrowhistory.org:
    “[I]n general the Jim Crow era in American history dates from the late 1890s, when southern states began systematically to codify (or strengthen) in law and state constitutional provisions the subordinate position of African Americans in society. Most of these legal steps were aimed at separating the races in public spaces (public schools, parks, accommodations, and transportation) and preventing adult black males from exercising the right to vote.”

    To restate the above quote, “Black and white people prior to Jim-Crow LEGISLATION would have been free to associate without the assistance of Title II.”

    The government’s claim that it helped eliminate discrimination via Title II is on par with BP claiming it is responsible for a cleaner ocean.

  3. If I understand you correctly, you’re arguing that the threat of coercion from nefarious persons against some individuals who choose to do business in a certain way warrants the use of force by the state to compel all individuals to do business in the same way, at least with respect to customer policies. This doesn’t make sense to me. Wouldn’t it be an effective countermeasure against the threat of coercion from racists if the government simply policed against that sort of violent crime?

    Should we say that since kidnappers threaten to abduct children from parks, everyone must be forced to bring their children to parks? Even if the parents who choose to go to the park feel safer in large numbers, that doesn’t give the government the right to force everyone to go to the park. Personally, I think it’s horrible for parents to keep kids locked up indoors and not take them to the park; they deprive their own children and their neighbors children of the benefits of associating with each other. But in a free society we have to tolerate some abhorrent behavior from bad parents, because the only way to protect our own freedom is to tolerate the freedom of others, especially those who we find repugnant. We are free to scorn them, rebuke them and even abstain from associating with them, but we should resist the temptation to use the force of law to compel others to behave according to our wishes.

  4. I get Koppl’s point. In the same way Jim Crow laws allowed cover for racists to discriminate without economic consequences, the Civil Rights Act allowed cover for business owners who cared more about money than racial discrimination to say, “Hey, I can’t help it. They’re making me let them in.” Of course, one may argue too that this is the sort of thing that demonstrates the validity of sunset laws — it hardly seems appropriate anymore. In fact, the law probably protects racists from themselves and thus from what could be the economic conseuqences of their attitudes. Thus it seems to me that this law was one of those libertarian nudges — but what happens when the nudge is no longer needed?

  5. Granted that non-state violence would have prevented the free association of blacks and whites in the “recently-Jim-Crow South,” wouldn’t the best solution have been to outlaw and crack down on that violence? In this sense I agree with Pete. Say a business employs some other profitable business strategy on a block controlled by a gang that doesn’t like that strategy and the gang therefore makes threats of violence against that business. Isn’t the more sensible solution to crack down on this gang rather than to mandate the use of that business strategy by the rest of the businesses on the block?

  6. Correction: It was Sheldon Richman who wrote, “individuals are either free to do anything peaceful or they are not.” Not Sheldon Richmond. 🙂

  7. “Black and white people in the recently-Jim-Crow South would not have been free to associate without the assistance of Title II.”

    Roger, did you read my piece?

  8. I don’t think it works to say that we should have just ramped up enforcement of the law. How precisely would that work? Law enforcement was (and remains mostly) local and not national, but there was good reason to think local law-enforcement agencies would not have enforced the law equitably or effectively. I mean, that’s sort of why the federal government jumped in to begin with. (Or at least why it was on net good that it did so.) The FBI or any other federal entity would have been an alien force lacking local knowledge. The resources required to do the job may have been out of reach for any police entity. Effective enforcement might have implied an unacceptable level of intrusion into people’s lives. And so on. I think Daniel and JJ may have been momentarily forgetting that “law enforcement,” like anything else, has its limits. We should not simply assume that “law enforcement” can achieve any end we set it to.

  9. Roger,

    Two questions:

    1. One could have argued that it was appropriate for the federal gov’t to override local cops in enforcing existing law against murder/lynching/property damage against entrepreneurs who wished to integrate. Why did we need a whole new statute to do that, esp. if one believes that the CRA would be harder to enforce and lead to more problematic unintended consequences than existing law?

    2. I think you’re ignoring Sheldon’s argument about the already-existing ways in which non-state action was breaking down segregation. Isn’t it plausible that, over time, the net benefits for liberty of the CRA Title II (when we consider that it has opened the door to all kinds of other forced association and problematic anti-discrimination law that was unrelated to the original context) have been less than encouraging these other forms of resistance and enforcing existing law with federal help would have been?

    All of that said, were I in Congress in 1964 and faced with the CRA as a package deal, I would have voted for it without any hesitation and with some degree of enthusiasm. The gains to liberty from ending Jim Crow LAWS were much greater than the costs in terms of the limits on the right of association.

  10. It’s odd to me to read some folks commenting as if the conflict between the federal government and a state government in the case of Jim Crow laws is somehow a logical contradiction. No, it’s just historical conflict, not necessarily a failure of government, as such.

    Also historical: there’s more than one source for “the Law.” Civil rights were advanced largely through court decisions based on Constitutional principles or rights found in the Bill of Rights, but in the case of Title II, the support came from Common Law, and the principle of nondiscriminatory public accommodation, as Brad DeLong has noted: http://delong.typepad.com/sdj/2010/05/common-low-duties-of-non-discrimination.html

  11. How do you explain the success of the lunch counter boycotts four years before the passage of the Civil Rights Act?

  12. Sheldon asks if I even read his piece and now Steve and Mike are making the same point about the success of lunch counter sit-ins.
    Yes, Memphis lunch counters were desegregated, but the Sixteenth Street Baptist Church was also bombed on 15 September 1963. I don’t quite see why we should think the sort of gain seen in Memphis would have been followed promptly by a complete desegregation. Sit-ins and freedom rides and so on were all met with non-state violent action.

    If the US political system had somehow relied only on sit-in and the like to achieve desegregation, how long would we have had to wait for desegregation and how much violence would have accompanied the process?

    Also, if the right to association means that you can exclude blacks from your business, then the protesters were violating the sacred property rights of business owners. Would not calls for enforcing the law imply the necessity of arresting, trying, and convicting such protestors. By the libertarian standards some are upholding, those engaged in lunch-counter sit-in should be castigated as coercive violators of property rights. At any rate, I don’t quite see what that argument is mistaken.

  13. Mike – what’s to explain? A particular political action made it undesirable for that business to continue that practice in that locality, at least for that moment. So local people reached some local agreement. Do you think that makes for a counterexample that disproves a theory? Nope. It’s just more history.

  14. This argument looks very weak. If one is not a libertarian, why not just say that a free society cannot exist with a part of the people being basically excluded from it?

  15. “Thus, an entrepreneur who served black and white customers indiscriminately might have been at personal risk of injury or death.”

    Well, thanks to the lunch counter sit ins, there were a number of business owners in cities across the South who did just that, years before the Civil Rights Act passed. How many actually suffered violence?

  16. “Black and white people in the recently-Jim-Crow South would not have been free to associate without the assistance of Title II.”

    Roger, given that it’s been more than a generation since the recently-Jim-Crow era, would you today be okay with repealing Title II?

  17. Larry,

    This is my view. Whether or not the public accommodations law was justified in 1964, today discrimination would likely be the exception rather than a systematic cartelized-style exclusion. At this point the value of freedom of association would seem to be the dominant consideration.

  18. Larry,

    No, I don’t think so. Troy Camplin raised the same issue. My post was an attempt at showing that libertarian reasoning supports Title II as of 1964. I don’t see a clear libertarian argument for retaining Title II today, although there might be one out there. Personally, however, I would *not* favor repeal of Title II.

    I am not a libertarian, so I don’t go for the corner solution of minimizing coercion to the exclusion of all other political values. OTOH, I confess that I am not interested in working out a tight argument in defense of my preference on this matter. Even if it should be repealed in some absolute sense, there are many infinitely more important things for Congress to work on. If Mario is right to think that Title II is now superfluous, very little harm indeed is caused by keeping it.

    The Blackstone quote noted above suggests that there probably is a (“classical”) liberal argument for keeping Title II. If Title II pretty much just codifies a bit of common law, then its repeal might have the effect of saying that Congress repudiates that bit of common law. If the common law got it right, however, that would be a loss.

  19. Roger,

    Don’t the Selma March and the Montgomery bus boycott work against your assertions here?

    The willingness of the freedom riders and other groups from the north to peacefully enter the states of Mississippi and Alabama and shame the hell out of the bigots by making them beat them until they understood that their blood was the same as theirs ended the idea of racial hierarchy.

    I worry that you make cheap these sacrifices by suggesting that article II of the civil rights act was what brought about change.

  20. One of the benefits of having a sunset on all laws is precisely that you can allow archaic laws die without repealing them. Again, Roger is right about the message outright appeal would send (and we cannot underestimate such things). But allowing it to just fad away quietly would be another thing entirely. Of course, that makes my argument more of an argument for sunsetting all extraconstitutional laws than it does for repeal of Title II.

  21. Hi Michael,

    You are forgetting that the Selma marches began after CRA64 passed. They were mostly about voting rights, at least initially.
    I think it somehow minimizes freedom riders and others to say that Title II was not a violation of the right of association.

  22. If a Klansman in white hood walked in to a black restaurant, should black man be forced to serve the Klansman? Since the restaurant is a public accommodation, should black man be prevented from ordering the Klansman out of his restaurant?

    If a Neo Nazi dressed as Adolf Hitler walked in to a Kosher Deli, should a Jew be forced to serve the Neo Nazi corned beef on rye? Or should the Jew be able to tell the Neo Nazi to get the hell out of his store?

    Or are you allowed to discriminate against political incorrect groups only?

  23. Tom,

    Um, race is, um, you know, like an unchosen condition. Oh, and, um, I’m pretty sure there were rather more lynching of blacks by klansmen than the reverse.

    If we are interested in minimizing the sum of coercion by both state and non-state actors, then the historical context matters. If we are interested in minimizing only the amount of state coercion formally permitted by the explicit, legislated rules, then Title II has to go. But my very point is that this objective requires abandoning the objective of minimizing the sum of state and non-state coercion.

    Oh, and neo-Nazi *did* have the right to march through Skoie and the ACLU defended that right in court.

  24. Let me get this straight.
    People who actually read the law, that law being the US Constitution, and who, then, see other laws promulgated which appear to be at conflict with that supreme law of the land, should not speak up nor protest, but should rather look in the mirror and chastise themselves for being Liberty-depriving, segregation-minded, and one knot away from coercive violence?
    That’s exactly the type of worn out nonsense that the American people will reject out this coming November.

  25. Roger,

    Am I forgetting?

    I am making an argument about kind, not about time.

    Reasonable people can disagree and our assertions are well met in terms of their subjective nature. I appreciate where you are coming from. My goal is only to weaken your confidence in your version of history.

  26. This is written by the same hypocrites that support violence around the world.
    The “Christian Science Monitor” has no credibility and therefore not worth a debate.
    No run along and bomb those disbelievers in Iran.

  27. The problem with Rand Paul, and with most who espouse this nonsense is that there is nothing Libertarian, if one takes the definition as meaning in favor of liberty for all, about his position. If one starts in a place where systematic discrimination exists throughout society and dates back to prior to the creation of the nation it is nothing short of idiocy to state that it is in the interest of liberty that private businesses should be free to sustain that discrimination. Taking his ideas further, as it applies to racial and other forms of discrimination, it would seem Paul is opposed to any restrictions on businesses whether it be choosing who they would serve (think of pharmacies, doctors, hospitals, taxi cabs, banks, grocery stores). The only means by which he seems to think this should be addressed is via the power of the market. So in his mind, generations of people should be deprived of their access to the benefits of society (seeing a doctor, access to medicine, capital, even food) while the market forces go about addressing things. It seems to me that given the way the market works, a impoverished minority has about as much chance of having the market work for them as I do of becoming president…of China.

    His logic also seems to lead one to oppose regulation of any sort – which given his profession seems odd. Does Paul really think that if I set up a shingle as an eye doctor the market should be what determines whether or not it is okay? Perhaps eventually I will be brought to court after blinding a few dozen people, perhaps not.

    The problem with idealogues is that they construct false constructs in which to fantasize about their ideals. In the real world, especially in a representative democracy founded upon the idea that all people are created equal, it is incumbent upon the government, which is an extension of the citizenry, to protect those who have entered into the world at a financial or other disadvantage which thwarts their inherent equality. It is the progressive perspective that by doing so we all benefit – kind of like the teaching to fish vs. giving a fish parable. While those on the right decry direct financial assistance to those in need, they at the same time do everything in their power to maintain the barriers to decreasing the need to do so. The real problem we have in our country with respect to the government is not that there is too much of it, it is that it has been taken over by corporate, profit driven interests. Given the love for the market of Paul and his ilk, if their logic is correct, the government should be functioning just fine…

  28. Gee, you learn something new everyday. Here I thought I’d been against the Iraq war and it turns out I am really in favor or it. Who knew?

  29. Roger,

    You didn’t answer my questions. I didn’t ask if someone has the right to march. Are you saying that the law applies only to “unchosen” conditions? I thought the law was supposed to apply to everyone.

  30. Look again at paragraph 2 of my reply, Tom. I took your query most seriously and gave a serious reply to it. I am saying that an unchosen condition cannot be a legitimate qualification of a business’s obligation to serve all comers. A chosen condition can be. Disruptive behavior may be good grounds to eject a patron, depending on details. Race cannot be. In your hypothetical, the hooded Klansman is behaving in a grossly provocative manner and making a clear and unmistakeable threat of violence against the proprietor. There really is no symmetry with the case of a whites-only lunch counter. This point holds even when we forget context, which must never do.

  31. I just had a chance to skim threw the comments. Several interesting points. However, Roger, I have the sense that you and others are presuming that businesses in the South generally supported segregation and would have continued segregation voluntarily if they had been given freedom of association. I don’t believe that historical evidence supports this supposition. Here’s a nice, brief piece from the Boston Globe that sheds some light on the relationship between business and government under Jim Crow.


    As to the question of the effectiveness of law enforcement against racists who may have attempt to terrorize integrated businesses, I agree that if the violence had been escalated to the point of dissolving all law and order, then local law enforcement would have been inadequate. (Libertarianism doesn’t apply in a state of war. That’s always been a weak spot, in my opinion. Classical liberalism presupposes some resemblance of law and order and has little to say about the conduct of war.) However, there is little evidence to suggest that racists had the capability (or even the inclination) to conduct all out war in the generations that followed the defeat of the Confederacy. Certainly there was violent, racist crime. But the existence of crime is not a sufficient condition to deny the public liberty. If violence was so rampant as to merit martial law, that’s another matter, but that doesn’t seem to have been the case in the South 50 years ago or 100 years. There’s every indication that if people had been free from Jim Crow laws, segregated businesses would never have taken root in the first place. Generations of Americans would have been much better off if they had had freedom of association, which is yet another reason why many continue to argue for freedom of association today.

  32. Daniel,

    I don’t think I follow your logic. In the first part of you comment you say, “I have the sense that you and others are presuming that businesses in the South generally supported segregation and would have continued segregation voluntarily if they had been given freedom of association.” But my post was on why Title II supported freedom of association. In my original post I said, “The law protected entrepreneurs by making it hard for persons who prefer forced segregation of the races to identify fitting targets of racist violence.” So how am I presuming that businesses would have “continued segregation voluntarily” if I am praising Title II for protecting businesses that integrate? Am I missing something here?

    Nor am I clear on the import of your second paragraph. You say, “Generations of Americans would have been much better off if they had had freedom of association, which is yet another reason why many continue to argue for freedom of association today.” Sure. I defended Title II by saying, “Black and white people in the recently-Jim-Crow South would not have been free to associate without the assistance of Title II.” So where is the bit where I don’t like freedom of association?

    Forgive me, Daniel, but I’m just not getting where your comments imply a correction or amendment to anything I said in my post or in the comments on it. Am I mistaken to think you were in some way disagreeing with me or suggesting I need to modify my position?

  33. Daniel,

    My reply awaits moderation, but basically it just seems like you reading in. I don’t really think I said what you seem to think I said.

  34. Roger, I think we surely agree that freedom of association is a valuable thing. I disagree with your assumption that racism in the South would have been so violent as to overwhelm law enforcement’s ability to protect people who chose integrated businesses. Your “libertarian” argument that Title II promotes freedom of association rests on that assumption, which is, by every indication, false.

    I bring up the issue of business opposition to Jim Crow to make certain that everyone keeps in mind the role government had in imposing segregation. The biggest hurdle for integration was not the threat of non-state violence, as you suggest, but government coercion. Integration would have occurred decades earlier, and indeed, segregation would never have become the norm if local and state governments had not imposed themselves on the people. And that is the larger point: people living in America have never really had a right to freedom of association. During Jim Crow, local and state governments prescribed in sickening, minute detail the manner and places in which people could interact. With Title II, the federal government claimed the same legal authority over the public’s associations, though they have exercised that authority innocuously. The libertarian claim is that no government should have the authority to tell people where, when, how or with whom they may associate. Individual claims to freedom of association should trump the attempts of politicians to prescribe good behavior, even on the rare occasion when the politicians’ prescriptions are actually good. So, you have not shown, to my satisfaction, why Paul was wrong about Title II. Libertarian criticism of Title II is just as valid as their criticism of Jim Crow. In fact, they are the same criticism.

    Having said all that I’m very glad you wrote this post, and I appreciate your responses in the comments. Hashing out these issues helps us all understand where we came from and where we’re going.

  35. Someone mentioned above that if a Klansman walked into a black restaraunt, would they have be served. When some neo-nazi group wanted to march through a Chicago suburb in the ’70s made up of Jews, the courts ruled they had the right to do so.
    Still no one mentions the history of discrimination in this countries or others. Here in the 19th century, every wave of immigrants was met with the same reaction we see today in Arizona, whether it was the Irish, Italians, Eastern Europeans or Asians. Other counties also have a tradition of discrimination whether it was Germany in the 30’s, Japan still today and now Europe as far as the Arabs are concerned.

  36. I think you’re still doing a good bit of reading in, Daniel. You admonish me, “The biggest hurdle for integration was not the threat of non-state violence, as you suggest, but government coercion.” I don’t think I made any such suggestion. And I don’t quite see how I might be misread that way. I mean I hope that I take seriously my authorial responsibility to be clear, but I just don’t get how I seemed to make the suggestions you have imputed to me.

    You say to me, “I disagree with your assumption that racism in the South would have been so violent as to overwhelm law enforcement’s ability to protect people who chose integrated businesses.” I have indeed rejected the “law enforcement” solution, but I wonder if we have our eyes on the same counterfactual. I’m picking up the story in 1964. At that point, I think it would have been worse to somehow try to rely on local authorities or the FBI or something to protect integrating businesses from segregationist violence. The firebombing buses with freedom riders and of churches, the beating of Selma marchers, and so on all suggest to me that Title II provided valuable help in reducing the coercive restrictions on the right of association. I mean come on, it was a hell of fight back then! Local authorities and persons acting on their own were engaged in violent acts to prevent integration as well as improvements for black people.

    Now the evidence you adduce seems to say that if we had never had Jim Crow, then things would have been way different and a measure such at Title II would have added a coercive element, rather than mitigating coercion. I don’t know if that’s right, but it at least plausible. I kind of think it is probably true. Great. But we did have Jim Crow. We could not, in 1964, hop in the libertarian time machine and undo all the changes wrought by Jim Crow. We had only two choices: Level of coercion A in restraint of the freedom of association or level of coercion B in restraint of the freedom of association. Level of coercion A is that which would have happened without Title II and level of coercion B is that which happened with Title II. I am claiming that A>B>0. I think the evidence is on my side.

  37. Mike,

    Yes, Us vs. Them is big permanent problem. I really like the insight to the problem provided by the following article:

    Kurzban R., Tooby J. and Cosmides L. (2001). Can race be erased? Coalitional computation and social categorization. Proceed. Nat. Acad. Sci. 98 (26), 15387–92.

    It’s about race and you raise a larger issue, but I think their angle applies widely.

  38. I’ll ask this one more time. What actually happened when businesses voluntarily integrated before the Civil Rights Act?

    I made specific reference to the lunch counter sit ins But there are others. To take one small example, because of a white wrestler who called himself Sputnik Monroe, professional wrestling in Memphis’ Ellis Arena was integrated in 1958. (There’s currently a biopic being developed about Monroe’s life)

    When Monroe passed away four years ago, Judge Russell Sugarmon, who was a civil rights attorney then and a friend on Monroe’s told the Memphis newspaper:

    Monroe’s stand was the first domino to fall, in integrating public entertainment in Memphis. “I remember trying to go to the (dramatic) theater with my wife, and we got to the box office and they wouldn’t sell us tickets,” he says. “The committees that were working on those things said ‘Well, we have to integrate these things slowly; we don’t want to upset the unwashed masses.’ And we said, ‘Well, the unwashed matches are getting along quite fine sitting alongside each other at the wrestling matches!’ ”

    Again, you predict violence would be directed against businesses that voluntarily integrated absent the Civil Rights Act, and I ask what happened to those that did integrate? Was there violence? How widespread and virulent was it?

  39. Hi Mike,

    I didn’t think I’d been avoiding your question. I gave some examples of violence and there are plenty of others. I don’t see where it is such a stretch to view those examples as strong positive evidence the claim that coercion (which includes the *threat* of violence) would have been applied to integrating entrepreneurs as well as, obviously, black folks who might patronize their businesses. Perhaps I lack imagination, but I just don’t see how one could view such evidence as weak. Again, it was a helluva fight back. There were murders, firebombings, and so on. Where is the ambiguity?

    Now, I can vaguely guess that you might wish to say that the only violence that counts for the issues at stake here regarding Title II are examples of trouble for integrating entrepreneurs. I don’t know if you are suggesting that, but I certainly don’t think such a restriction would be appropriate. Plus, again, coercion includes the threat of violence, so there might have been quite a bit of it without one hospital visit for an unfortunate entrepreneur.

    Anyway, there *was* a violent reaction against many blacks who sat at segregated lunch-counters. In Nashville, they arrested the blacks who sat and not the whites who beat them and they bombed the home of black attorney Alexander Looby. Yes, Nashville made a start on desegregation before CRA64, but they weren’t all the way there to be sure. In Jackson, MS in 1963 the cops let a gang of whites enter the Woolworth’s and beat and abuse those sitting at the lunch counter. After these thugs beat Memphis Norman into unconsciousness, the cops did intervene to make an arrest They arrested Memphis Norman!

    And so on and so on and so on. I guess maybe some folks don’t quite realize how bad it was. It was war. I don’t think we should object to a coercion reducing measure (Title II of CRA64) because nonviolent protestors scored some costly victories in that war.

  40. If I focused on violence against entrepreneurs, it is because that was the focus of your original post.

    Let me quote:

    “Thus, an entrepreneur who served black and white customers indiscriminately might have been at personal risk of injury or death. Non-state actors used coercion to prevent free association. In that context, it makes sense to defend the right of association by prohibiting “places of public accommodation” from discriminating on the basis of “race, color, religion, or national origin.” The law protected entrepreneurs by making it hard for persons who prefer forced segregation of the races to identify fitting targets of racist violence.”

    That’s why I keep asking for evidence to support the argument you made. That’s why I keep asking what happened to those Southern businesses that voluntarily (well, under social pressure) integrated in the 1950s and 1960s before the Civil Rights Act passed.

    Were they identified as “fitting targets of racist violence” by “persons who prefer forced segregation of the races”? If so, was that violence sufficient to deter them, on the whole, from integrating?

    I’m not a historian, but it certainly seems that the answer to that second question, at least, is that it wasn’t sufficient.

  41. Mike,

    Oh, I get it. My original post seemed to focus only on violence (not the threat of violence) to entrepreneurs (and not their customers). It seems to you that my position has moved when I speak of “coercion” and not just violence and when I speak of coercing customers as well as proprietors. Perhaps that’s creates a fair criticism of my original post, although I would prefer that you consider my later comments “clarifications.” Consider my subsequent comments “clarifications” or “amendments” according to your pleasure. Either way I think the logic of my argument holds, and we are not wanting in examples of actual violence that tend to support my amended or clarified position regarding coercion. Recall that coercion is violence or the threat of violence.

    If you will, as it were, permit me to include examples of violence against customers, I think I’ve done so. If you prohibit that form of evidence, well I don’t see why. Anyway, even there, at least one website (http://www.crmvet.org/tim/tim64c.htm) says, “Without white-supremecist demagogs inciting boycotts and violence against businesses that dare integrate, most companies come to accept Blacks as cash-paying customers. ” That statement is not an example of violence against an integrating shopkeeper, but perhaps it supports my view that there was reason to fear coercion of integrating entrepreneurs at the time, and that Title II reduced the likely sum of state and non-state coercion exercised against the freedom of association.

  42. I guess if we think the government has power to enact Jim Crow laws, it also has power to enact anti-Jim Crow laws.

    If we think, on the other hand, government does not have power to enact Jim Crow laws, then it also does not have the power to enact anti-Jim Crow laws.

  43. Shelon Richman alerted me to the following that I should have linked to. It is the analysis of the great and wonderful David Bernstein:
    “If segregation and discrimination in the Jim Crow South was simply a matter of law, federal legislation that would have overturned Jim Crow laws would have sufficed. But, in fact, it involved the equivalent of a white supremacist cartel, enforced not just by overt government regulation like segregation laws, but also by the implicit threat of private violence and harassment of anyone who challenged the racist status quo.”

    David continues:
    “Therefore, to break the Jim Crow cartel, there were only two options: (1) a federal law invalidating Jim Crow laws, along with a massive federal takeover of local government by the federal government to prevent violence and extralegal harassment of those who chose to integrate; or (2) a federal law banning discrimination by private parties, so that violence and harassment would generally be pointless. If, like me, you believe that it was morally essential to break the Jim Crow cartel, option 2 was the lesser of two evils. I therefore would have voted for the 1964 Civil Rights Act.”

    Here is the url: http://www.aolnews.com/nation/article/rand-pauls-position-on-civil-rights-too-hot-even-for-liberatarian-stalwarts/19485872

    Well said, David.

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