Rand Paul, Libertarianism, and Legislating Morality

This past week, America received a glimpse into the mind of libertarianism through the words and positions of Dr. Rand Paul.  For those who don’t know, Dr. Paul, son of libertarian Republican senator Ron Paul of Texas is himself the Republican candidate for Senate from Kentucky.  After winning this nomination, some of his positions on various topics in law emerged and he began making further statements in interviews on National Public Radio and MSNBC’s Rachel Maddow Show.

Let’s review some of these statements to show Paul is taking a stand that is consistent and principled (though, as we shall see, his principles are quite questionable and problematic).

The first comes from a letter to the editor written prior to his candidacy in 2002:

“In a May 30, 2002, letter to the Bowling Green Daily News, Paul's hometown newspaper, he criticized the paper for endorsing the Fair Housing Act [of 1968], and explained that "a free society will abide unofficial, private discrimination, even when that means allowing hate-filled groups to exclude people based on the color of their skin." David Weigel, The Washington Post, 20 May 2010, http://voices.washingtonpost.com/right-now/2010/05/rand_paul_in_2002_i_may_not_li.html; brackets and italics mine

And:

‘"A free society will abide unofficial, private discrimination," wrote Paul, "even when that means allowing hate-filled groups to exclude people based on the color of their skin. It is unenlightened and ill-informed to promote discrimination against individuals based on the color of their skin. It is likewise unwise to forget the distinction between public (taxpayer-financed) and private entities."’ [ibid]

After his nomination, Paul’s camp felt the need to clarify:

“Jesse Benton, a spokesman for Paul, cautioned that Paul's statements about federal laws in no way mean he's interested in repealing laws that prevent discrimination.

‘"The federal government has the power under the Civil Rights Act to make sure citizens don't discriminate on race," said Benton. "He's not going to repeal it. The only people who are talking about changes to civil rights legislation are people on the left are people who want to use this as a political attack tool. Not any serious people talking about policy."’ [ibid]

It would be easy to let it go at that – Rand Paul, in 2002 was just talking out of his hat.  But we ought not be willing to accept that answer for two reasons:  1) Paul has laid down his principles, namely that private property rights are absolute and the government may make no laws to tell a private property owner what to do with his property, no matter how “unenlightened and ill-informed” – or immoral – the property owner may be in his use of property; and 2) This tells us clearly not so much how Paul would vote on the Housing Act – which has been settled law since 1968 – but how he plans to vote in the future should become a senator and what sort of bills he might propose or support. 

We know this because he has never renounced the principle and has suddenly become tight-lipped towards the mainstream press (as of this writing he pulled out of Meet the Press for 23 May, becoming only the third person in 60 years or so to do so).

People began looking into Rand Paul’s beliefs because of his appearance on the Rachel Maddow Show where Maddow asked him specific questions about positions he’d taken in an interview with NPR earlier in the day.

In he NPR interview, Paul questioned the 1964 Civil Rights Act, but also the Americans With Disabilities Act:

“Here's the interview in a nutshell, from Paul's response to a question about whether or not he thinks the ADA is an example of federal "overreach":

‘"I think a lot of things could be handled locally," Paul told Siegel. "For example, I think that we should try to do everything we can to allow for people with disabilities and handicaps...I think if you have a two-story office and you hire someone who's handicapped, it might be reasonable to let him have an office on the first floor rather than the government saying you have to have a $100,000 elevator. And I think when you get to solutions like that, the more local the better, and the more common sense the decisions are, rather than having a federal government make those decisions."’ Sam Stein, The Huffington Post, 20 May 2010, “Rand Paul on Civil Rights Controversy: I Shouldn’t Have Talked to Rachel Maddow,” http://www.huffingtonpost.com/2010/05/20/rand-paul-civil-rights-rachel-maddow_n_583292.html?view=print

But more real difficulties in Paul’s beliefs surfaced in the subsequent Rachel Maddow interview:

“Maddow: Do you think that a private business has a right to say that 'We don't serve black people?' [One of the many segregationist policies that led to the 1964 Civil Rights Act.]

“Paul: I'm not in favor of any discrimination of any form. I would never belong to any club that excluded anybody for race. We still do have private clubs in America that can discriminate based on race. But do discriminate.

“[Paul:] But I think what's important in this debate is not getting into any specific "gotcha" on this, but asking the question 'What about freedom of speech?' Should we limit speech from people we find abhorrent. Should we limit racists from speaking. I don't want to be associated with those people, but I also don't want to limit their speech in any way in the sense that we tolerate boorish and uncivilized behavior because that's one of the things that freedom requires is that we allow people to be boorish and uncivilized, but that doesn't mean we approve of it...”  The Huffington Post, 20 May 2010, “Rand Paul on ‘Maddow’ Defends Criticism of Civil Rights Act , Says He Would Have Worked to Change the Bill.” http://www.huffingtonpost.com/2010/05/20/rand-paul-tells-maddow-th_n_582872.html?view=print, brackets and italics mine

Paul makes no distinction between freedom of speech and freedom of action – most of us recognize that there is something different between talking about something and actually acting on it; and most of us recognize a further distinction between actions that may be repugnant yet directly affect no one else and actions that are both repugnant and damage others in some meaningful way.  The only distinction he is willing to make is between the “public sphere” – government, which should be limited by law – and the “private sphere of ‘liberty’” – which is supposed to be absolutely free of interference from the  government and law.

No, Rand Paul does not agree with racism – we will take him on his word here; he says he abhors “discrimination in any form.”  But notice his choice of words in this part of the interview as it is crucial to understanding the theoretical underpinnings of libertarianism: While he, personally, dislikes racism and segregationist actions and the like (like all of us, one is quite certain Paul has a long list of things he privately dislikes), he is happy to say that “personal freedom” is absolute (we are returning to this term “absolute” many times); Paul dislikes racism, but others like it and choose it as a way of life and belief system – but, not only that, he believes property rights are absolute, so racists are free to use their property in the community (e.g. restaurants) to express their feelings and beliefs, not only by speech, but by imposing them on others through the policies they enact within their tiny kingdoms.  Or large kingdoms, should they be wealthy and own and control much property.

Notice that Rand Paul makes no distinctions between types of private property.  He treats a restaurant, which operates with its doors open to serve the public and community and which is, itself, situated within a community of various sorts of people, as if it were a private residence. 

Obviously, the concept of freedom, as we generally understand it in the West now, entails that we have a great deal of control over the private space of our home – even if we rent it.  We generally decide who may come and go within our domicile and when they may arrive and when they must leave and what they may and may not do while there.

But if we operate a “public business,” it would seem that we lose some of that freedom – or, to state it properly, our personal freedom as regards that property is different and more limited.  We never had the freedom to do just anything we wish with our property in the first place.  The notion we can exclude some people from our business based on non-objective criteria, such as race or religion, or sexuality, or hair or eye color, or left-handedness, or regional accent seems strange to many of us, just on the surface.  But beneath the surface is the idea of justice.

Simple legality isn’t what is in question – legal justice – but justice as a moral principle prior to being a basis for law.  The ancient Greeks defined justice as treating equals as equals and unequals as unequals; or to say it in modern language: Giving each his or her due.  Our question then becomes, are accidents of birth or differences of belief an essential difference between people inasmuch as they are simply human – in other words, does someone become less or more human by being of this race or that, this religion or that, this eye or hair color, left or right handedness, and so forth. 

Racists, of course, mistake visual differences – skin color or place of origin – for essential differences; their belief is irrational and unsupportable by rational argumentation.  It is the result of deep seated prejudices and a misunderstanding of biology and philosophy and, often, religion.  It is a superstition, and an immoral one as it leads to unjust treatment of others – it makes the racist an unjust person, who is immoral as well as foolish.

There is no good reason to exclude a person from a public business because of race.  Period.  If people cannot give good reasons for their behavior at crucial moments, at the moments one’s actions affect others especially, one cannot be socially tolerated – and if one’s actions actually damage or demean others and reduce them to second class citizens, we can and must move from social censure (disapproval and boycott, for example), to using the power of law to forcibly limit those who cannot voluntarily govern themselves rationally.

The burden is always on a real human being (in this case, a business owner) to show her policies are as rational or reasonable as possible in dealing with others, even when the question is the use of her property.  One does not escape the bounds of morality by taking refuge within a public business one might happen to own – one still must practice a bare minimum of rationality and decency when dealing with others there.  Should one wish to be irrational and immoral (say, racist in conduct), one generally has the space to do that within the precincts of one’s home, which is far more private by definition than a business dealing with others.

But, for the libertarian, none of the foregoing makes any sense, as he will not accept the premise that moral limits can occasionally be legislated and made law.  A libertarian will tie himself into knots to claim that “free market forces” and “social pressure” alone will correct any obnoxious behavior . . . but, when push comes to shove, part of the reason for this is that the libertarian believes, not only that people do believe whatever they wish, but that that they should – and others have no business restraining them except in a very narrowly defined set of circumstances (e.g. people shouldn’t be allowed to murder one another). 

Meanwhile, government is to be completely restrained from stepping in and redressing grievances towards private individuals and their private business – private property belongs to the owner and no one may, by law, tell him what to do with his property.  One may argue with him, one may attempt to enlighten him in conversation, one may boycott him, but one may not force him to act as a rational human minimally ought to act when his actions adversely affect society or minorities.

One final quote from the Maddow interview to drive home the point:

“Maddow:... How about desegregating lunch counters?

“Paul: Well what it gets into then is if you decide that restaurants are publicly owned and not privately owned, then do you say that you should have the right to bring your gun into a restaurant even though the owner of the restaurant says 'well no, we don't want to have guns in here' the bar says 'we don't want to have guns in here because people might drink and start fighting and shoot each-other.' Does the owner of the restaurant own his restaurant? Or does the government own his restaurant? These are important philosophical debates but not a very practical discussion...

“Maddow: Well, it was pretty practical to the people who had the life nearly beaten out of them trying to desegregate Walgreen's lunch counters despite these esoteric debates about what it means about ownership. This is not a hypothetical Dr. Paul.” [ibid]

Note that Rand Paul thinks the moment that anyone points out that one’s behavior is limited by rational morality and society imposes this limit with a statute, we have decided, in this case, “restaurants are publicly owned and not privately owned.”  And notice that nowhere did Rachel Maddow, in her interview suggest, nor is this writer suggesting, that property use is socialized by being limited by law or morality.  Nor did America imply this in the Civil Rights Act, the Fair Housing Act, the ADA Act and other such civil rights (or other) legislation.  Businesses have certainly gone on making money since 1964 and society does not seize all or even most of the profits, nor does it intrude into businesses on a regular basis to impose random and senseless laws and rules to micromanage how business is done.

Libertarians will not agree with even this latter statement – they protest involuntary taxation, the minimum wage laws, OSHA safety regulations, discrimination in hiring policies, and on and on.  If something is not held to be completely voluntary where the use of one’s property is concerned, it is an infringement of one’s absolute liberty, usually spelled “Liberty” – as if their interpretation of the idea becomes clearer or closer to true by capitalizing the first letter.

Libertarians see tyranny lurking everywhere.  It should be obvious why since they define both liberty and tyranny so broadly.

One should find the libertarian fear of “legislating morality” completely suspect. Because, if one notices, they have no terror of legislating their own minimalistic conception of ethics. Laws that limit government from assisting oppressed minorities against oppression – these they will pass or support at a heartbeat; principles that allow suspect “liberties” (e.g. absolute property rights) to be used unjustly in the social sphere they will defend and work to enshrine in the law. Morally, making no distinction between license and liberty, thus collapsing the two entirely different ideas into one undifferentiated mass, they wish to legislate accordingly. Rand Paul’s interviews and letter are examples of this, as are his views on the absolute nature of private property rights.

A deeper question than, “Should we legislate morality?” would be to inquire whether libertarian beliefs about ethics are true, good for creating good human beings, people who are good at being human beings – whether the ethical philosophy underlying libertarian political positions offers greater benefits for all people than other approaches to morality.

The position of this writer is that the answer should be negative, but that argument is beyond the scope of this essay. For the moment, let our questions simply be: “Can and should government legislate based on ethical principles?”

First, let’s make a distinction between rational morality – morality that attempts to make rational arguments based on evidence and ideas available to all people to support itself – and irrational ethics which holds some set of beliefs as completely self-evident and refuses to argue for their truth. Let’s also distinguish rational ethics from a-rational ethics: a-rational ethics are things we may believe, say, by faith, which we cannot demonstrate rationally, but which do not violate anything we may know by reason.

For our purposes, one thinks it should be clear that governments, certainly the American form of government, if they do legislate using ethical principles, ought to only legislate using rational ones. This because, in principle, the arguments for them would be understandable and disputable by everyone who is rational, while irrational “principles” are more or less random or prejudicial and a-rational beliefs require a common ground of faith to argue from.

To make this clearer, take the Christian belief that one must receive Holy Communion. This is a belief held on faith, religious faith, but there is no purely rational argument that would convince rational people they ought to do it. On the other hand, nothing about receiving the Eucharist violates anything we know rationally – it hurts no one and nothing if people do it or believe in it. It is not a belief advanced by most without a very solid theological argument (so it isn’t an irrational belief), but since the argument is theological and not philosophical, appealing to common evidence outside scripture and a specific religious tradition, it is a-rational. One cannot make a good rational argument, then, that any laws ought to be made that require everyone or anyone to receive Holy Communion.

This is one of the reasons we have a separation of Church and State in our Constitution. There are other reasons, but this is one important example of why there is a separation.

If we grasp this much, it immediately follows that the number of rational moral values available to us to use in legislation is already limited at the outset. It is not as if there is an infinite number of principles with which to work. Moreover, many moral principles focus entirely on purely private conduct and refer solely to the individual human being as a moral agent – and these, likewise, are by and large outside anything a government could or should use in legislating.

For example, if (for argument’s sake) it is a moral value that people ought to be courageous, it is difficult to see where it would ever be necessary to enshrine this in common laws (unless, perhaps, it is implicit in laws concerning soldiers who, as a matter of duty, must be courageous in an obvious way to perform their duties without deserting their posts).

Next, let’s see if governments actually do use ethics in making laws, our government in America, to be specific. And the answer is yes. From the Constitution on down, the law is full of articles and statutes based on moral ideas and values. Any discussion of rights, for example, involves a rational conception of human beings – that we have certain needs, must be treated in certain ways. Laws against things such as murder exist, not at random or “just because” some lawmakers decided this would be a nice thing, but because prohibitions on murder are a pre-condition for the existence of all human societies. Humans did not create this pre-condition, it pre-exists us, objectively in some way, and makes life as humans possible.

But since, left to our own devices, without law, some people will and do choose to murder for whatever reason, this prohibition has been enshrined into law along with various definitions of degrees of murder, types of murder, levels of culpability (e.g. manslaughter involves less culpability than first degree murder in our code) extenuating circumstances (e.g. self-defense), and so forth. The limits that ethics place on behavior without law (e.g. murder is wrong, murderers are not living up to being good humans, murderers are not treating their victims justly), law openly spells out in this case to restrict the activities of those who would not live morally without exterior restrictions and system of punishment.

The law does this to maintain peace and stability in the society it exists to protect, and to protect the individuals and their rights within that society.

Libertarians are all for laws on murder, for example, for reasons of their own. The two great sins in the libertarian dictionary are ”use of force and fraud” to get one’s way. To be honest, this writer has yet to read a convincing argument why a society of selfish, greedy individuals (and libertarians are egoists who define greed as the mainspring of progress) should place these tools – force and fraud – off limits or that, in practice, a libertarian society would do so (for example, being absolute free marketers, no legal limits would ever be placed on advertizing, and advertizing is a form of manipulation and can be quite subtle and misleading – and this is fraudulent behavior).

But this minimalist conception of the role of government – to protect sovereign individuals from force and fraud alone – doesn’t seem to explain the need to do more than this, in ethics or law. For example, taking care of children. This, like the prohibition on murder, is a universal moral value, a pre-condition of human society and human life. And we have laws that protect children and mandate their care to force those who will not do this to assist in it. Abstaining from force and fraud will not meet the needs of raising children and our laws, as they evolved, have grown to recognize that the needs of children require the positive protection of legislation.

I think the question of whether we can or ought to legislate morality has been answered, or a way towards a more complete answer has been sketched. Let’s turn to another question, more tricky: When should we legislate morality and enforce it by law?

In the American system, laws are not supposed to be enacted unless necessary. Where there is no problem or where there is no looming danger of a problem, legislators, at the national or local level, are not encouraged to sit about and make up laws to ensure the populace becomes more “moral.” This is done, especially in the state bodies, at times, but it genuinely runs against the grain of the notion of limited government – which is a valid one when not conceived in the libertarian fashion.

But in cases where rights are violated and social pressure does not succeed in stifling the injustice, or in cases where the citizens who should be stifling the injustice are themselves the cause of injustice, it seems clear government’s duty is to step in and protected the oppressed.

This was the case in 1964 with the Civil Rights Act, in 1968 with the Fair Housing Act, and in the 1990s with the Americans with Disabilities Act – all of which we saw Rand Paul has difficulties with, and we may take Paul as a fair representative of what libertarian-minded people wish to vote for.

We may take it as a matter of course he and others like him would oppose government intervention to protect anyone from private oppression, even where a whole community, region, or state’s culture is prejudiced and oppressive to a minority. As if community force were not every bit as effectively force, unwritten law, as governmental law.

To sum it up, the libertarian is interested in property rights and private liberties when the issue is human rights and societal responsibilities to honor those rights. He cannot see all of these must co-exist in our country; not one set or the other: both; and that human rights trump property rights -- the law exists to serve humans, not property.

As we saw earlier in this essay, the moral issue in ’64, ’68, and the ‘90s revolved around justice and personal injustice and exactly how far one can be unjust and when and be tolerated. This was the moral issue. Libertarians have little notion of justice in their ethic – what they have is radical selfishness, selfishness elevated to the status of a virtue. Their main philosopher, Ayn Rand wrote explicitly on this from which I derive my interpretation of libertarian values – she even penned a collection of short essays called “The Virtue of Selfishness.” And she was not being witty. It contains her moral theory.

One approach to moral questions is to ask, “Who am I if I do this sort of thing?” not “How will I personally benefit or profit from this?” And then, “Is this a good example of being human? What is the value of the moral standard I am putting into action in my life?” Another is to wonder, “How much of this sort of behavior could a society tolerate if everyone acted as I wish to do? Could I live in such a world?”

If we find people within society acting unjustly and adversely affecting others, undermining the structure of society, a good community will apply social pressures to curb these people – citizens will not cooperate with them, citizens will openly criticize their beliefs and motives, social institutions will apply pressures such as economic ones. But if this fails, or if a given society does not recognize that one of the essential structural elements in a society is that all who are citizens must benefit equally from being in the society and abiding by the laws and rules, then government will have to intervene to some degree, up to making a new law, if necessary, spelling out the just usages of property – or whatever the subject may be.

Richard Van Ingram

22 May 2010