-- Posted by Neil H. Buchanan
In my most recent FindLaw column, I discuss the claims that laws designed to change the way people eat (mandating less salt, lower fat, clearer labeling, etc.) are a violation of freedom of choice. I argue that they are not, essentially by extending the argument that there is no meaningful "no government" baseline that allows people to say, "But for the government, this is what would happen." Even more than in other areas of policy, such as tax law, it is simply bizarre to try to imagine a "state of nature" in which the government plays no role in shaping our food choices. Unsurprisingly, however, food lobbyists have insisted on describing such laws as being an overreach by the "food police."
The column is available here, and I certainly do hope that people will read it. Normally, I would devote this entire post to discussing an issue related to the column. Here, however, I will diverge from the usual pattern and will, instead, discuss one of the most fascinating interviews that I have seen in a long, long time. Many readers will probably have heard by now about the interview on "The Rachel Maddow Show" this past Wednesday evening with newly-nominated U.S. Senate candidate Rand Paul, a political neophyte who is the son of Rep. Ron Paul of Texas and a favorite of the Tea Party people. The interview is available here (preceded by commercials). It is twenty minutes long, with no breaks -- apparently not by design, but because the interview simply took on a life of its own. I strongly encourage readers to view it now, before reading further. In fact, if you have a choice of viewing the interview or reading the rest of this post (along with whatever else one might do with the rest of those twenty minutes), there is no question that you should watch the video.
The headline coming out of the interview truly is astonishing. Paul, who had given two interviews in the past month (including one earlier on Wednesday) had taken the position that the "public accommodations" provision (Title II) of the Civil Rights Act of 1964 is a violation of people's freedom. The public accommodation provision of that law, of course, made it illegal for any business that is open to the public to exclude people on the basis of race and other impermissible factors. It is the law, in other words, that makes it illegal for a business to say "whites only," or "Christians only," or "U.S.-born only."
Paul had taken the position during an interview with a Lexington KY newspaper's editorial board that Title II should not have become law. The issue came up in an NPR interview before Maddow's show as well. Maddow showed clips of those interviews before she began her interview with Paul, and she began by asking him about his stand on this issue. What ensued was riveting, gut-wrenching political drama of the highest order. Even though Paul had made it clear that he had a problem with Title II, he ducked and evaded like an experienced politician. Maddow, who has a well-earned reputation as an extremely respectful -- but very persistent -- interviewer, spent almost the entire 20 minutes simply trying to get him to say in clear language what he had already said without quite saying in one sound bite: Businesses should be allowed to exclude people from their private property on the basis of race (and presumably any other factor).
Paul's refusal to be clear and forthright was startling in part because he had not, to that point, been using code words or anything that seemed to hint at misdirection in his prior interviews. This was not, it seemed, a matter of getting someone to admit to something that they had been dancing around for months or years. His position was not only clear from his previous interviews, but it is entirely consistent with his philosophical position -- a position that is fully congruent with the neo-Lochnerian position of the libertarian right. This was, in short, not a matter of George H.W. Bush claiming that the "Willie Horton ad" was not really playing on racist fears, or Bill Clinton saying that he did not have "sexual relations" with Monica Lewinsky. This was an interviewer asking a candidate: "You've said on multiple occasions that -- as your broader philosophy suggests -- a major provision of a major civil rights law is wrong because it abridges people's freedom, right?"
What made the candidate's refusal to answer so surprising was that this is a man who represents a group of people who claim to view principled consistency as the highest personal and political virtue. No political correctness (as meaningless as that phrase is) for these people! It is, we are told, time to take our government back from the career politicians who have sold out our freedoms. (That, in fact, was Paul's sound bite from his acceptance speech after his win in the Republican primary on Tuesday night.)
Some readers of this blog have chided me for being surprised when people do not live up to their stated principles, even when their self-image is invested in living up to principles; and this is another case in which I confess to expecting more from someone with whom I strongly disagree. (I had expected the interview to focus on those areas of libertarian ideology with which Paul and a liberal like Maddow might agree: drug legalization, anti-war foreign policy, etc. Paul had, in fact, announced his Senate candidacy on Maddow's show last year; so this was hardly a case of a principled man fearlessly going into hostile territory -- although the post-interview spin is unsurprisingly casting the incident as just that.)
Beyond the hypocrisy, the interview is simply fascinating to watch for the political tap dance that Paul tried to execute. He evaded, dodged, and weaved in a way that would make any political handler proud. Among his defenses: (1) He is not a racist (which is good to know, but it really does not matter whether he personally likes black people when the issue is his critique of a particular law), (2) He likes the rest of the Civil Rights Act, because it prevents government-sponsored racism (which is nice, but it hardly seems relevant to say that he likes 9 out of 10 provisions in the law: Does he also like 9 out of 10 amendments in the Bill of Rights?), (3) Liberals like Maddow might not wish to pursue this issue, because it might result in restaurants and bars being forced to allow people to carry guns (an interesting point, sort of, except that it says nothing about what he views as the right answer to the question), (4) Title II violates the First Amendment's free speech protections (a genuinely bizarre dodge, given both that the law prohibits actions and that this man's backers claim to be all about understanding and upholding the Constitution, yet he betrayed a complete lack of understanding of what the First Amendment means), and (5) this is all old news and not really important (which would imply that a candidate's views on laws that are unlikely to be repealed should be irrelevant to voters, making suggestions that, say, "Obama wants to take your guns away" equally irrelevant).
Finally, it is interesting to note that Paul announced on Wolf Blitzer's CNN show yesterday that he would have voted for the Civil Rights Act, if he had been in the Senate in 1964. This is viewed as a major "walk back" of his position; and in a way it is. During the Maddow interview, however, Paul tried to suggest that one might vote "yes" on a bill even if one disagreed with a part of it, if the balance of the bill was positive. Announcing now that he would have voted yes on the whole bill does not in any way clarify whether he believes that the public accommodations provisions should be on the books.
It seems unlikely that even this extreme position -- a position so extreme that even the most conservative members of his party quickly distanced themselves from it -- will cost Paul the Senate seat that he seeks. He can blame the "liberal media," and the issue might not resonate with voters in his state. No matter what happens in November, however, Wednesday's interview was simply fascinating.