Rethinking the Rand Paul Controversy

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Kenneth W. Mack is a Professor of Law at Harvard Law School. His forthcoming book, entitled “Representing a Race: The Creation of the Civil Rights Lawyer,” will be published next year by Harvard University Press.

Since Republican Senate nominee Rand Paul questioned whether, on constitutional grounds, he would have voted for Title II of the Civil Rights Act of 1964, he has been subjected to a barrage of historically-minded criticism.  Paul’s critics have expressed doubts about the nominee’s professed endorsement of the goal of Title II, which was to guaranty equal access to many public accommodations without regard to race, color, religion or national origin.  To them, his claim (which he later tried to retract) that he was simply questioning Title II as a means of accomplishing this result, while endorsing anti-discrimination as an end, rings hollow.  Indeed, it seems to echo statements made during the 1960s by people who opposed any form of racial equality, and by those who sought to give them political and intellectual cover.  Much of the criticism levied at Paul, however, downplays the history that led to the enactment of Title II, which raised serious questions about the constitutionality of a broad federal public accommodations law, even in the minds of racial liberals.

Title II was preceded by the sit-in movement of the early 1960s, which caused many Americans of egalitarian racial beliefs to sympathize with the point of view that got Rand Paul into so much trouble.  During the sit-ins, young people entered restaurants and other public accommodations, and refused to leave when they were denied service, causing the proprietors to invoke apparently race-neutral trespass laws (rather than segregation statutes) to eject them.  The sit-in protesters claimed that to refuse them service in an institution otherwise open to the public was a denial of their basic humanity as American citizens.  The proprietors took the position that Paul seemed to endorse, that their basic rights as property owners allowed them to refuse service to anyone they pleased.  Which side was correct?  Predictably, white racists sympathized with the proprietors, but others did as well.

The justices of the Supreme Court, the majority of whom sympathized with the objectives of the sit-ins, struggled for years to avoid ruling that the Fourteenth Amendment protected the protesters.  This was true even though the justices had had little trouble ordering the desegregation of many public institutions during the 1950s, and had also extended the non-discrimination mandate to some private entities.  The reason was summed up in an opinion by Justice John Marshall Harlan, himself the grandson and namesake of the justice who had dissented from the Court’s infamous ruling in Plessy v. Ferguson, and from its invalidation of the first federal public accommodations law.  “An individual’s right to restrict the use of his property,” wrote Justice Harlan, “lies beyond the reach of the Fourteenth Amendment.”

When President Kennedy sent his civil rights legislation to Congress in 1963, one question naturally arose: If the Supreme Court had sent strong signals that it was not prepared to extend the Fourteenth Amendment to restaurants, lunch counters and similar establishments, what gave Congress the constitutional power to act?  Later Court decisions would clarify this issue, but its solution was not clear to many racially liberal Americans at the time.  While many Northern states and cities had public accommodations laws on the books, a federal law in this area proved so controversial that the administration did not even include a provision covering that subject in its initial civil rights proposals.  What broke the logjam were the Birmingham demonstrations in the spring of 1963, which finally convinced many whites outside the South that the once controversial claim of the sit-in protesters should take precedence over the claims of the proprietors. 

After Birmingham, the administration proposed what would later become Title II, but concerns about its constitutionality still shaped the debate in Congress, even among professed liberals.  Strong supporters of anti-discrimination favored a broad public accommodations law based on the Fourteenth Amendment.  But many of them conceded that such a provision might be unconstitutional, given the signals that the justices were sending about the scope of that amendment.  Moderate liberals wanted to ground the bill in Congress’s power to regulate interstate commerce, but they believed that such a bill might not cover many businesses that had provoked the sit-in protests—those with a limited connection to the interstate movement of goods and services.  Attorney General Robert Kennedy himself cautioned that an overbroad public accommodations bill would make “a private business” into “an instrument of the State.”  Administration lawyers tiptoed around the question of Title II’s constitutionality, finally lodging it in the Commerce Clause.

Thus, it is a mistake to assume that anyone who, for constitutional reasons, would have paused at the prospect of voting for Title II was simply an opponent of racial equality.  Defenders of white supremacy often fed into this tendency by offering specious constitutional objections to Title II, and to the statute more generally.  Some of these objections have been invoked in the recent debate over Paul’s use of history.  But it is also true that the strongest advocates of a broad federal public accommodations law tended to downplay any constitutional issues.  Indeed, Kennedy and others in the Justice Department worried that this tendency would produce a bill that would eventually be invalidated by the courts.  By 1964, many supporters of Title II simply felt that it was the right thing to do, as did most Americans.  At that moment, to speculate about the constitutionality of the bill would simply bolster the cause of those who would employ any argument—good or bad—to block it.

If there is a problem with Rand Paul’s statement, it is not in what he said but rather the context in which he said it.  What he said, or at least implied, is basically correct:  that, in 1963 or perhaps even in 1964, a racially egalitarian member of Congress might have had qualms about the constitutionality of a federal public accommodations law.  That problem had no easy solution, and liberals realized it at the time.  But to make that statement as a candidate for the Senate at a time when those particular constitutional questions have long been settled—as most such questions are—in the court of public opinion, raises suspicions that he is speaking more about the present than the past.  This is particularly true given that Paul has been identified with the Tea Party—a political movement that makes constitutional objections to federal legislation a centerpiece of its reason for being.  The main questions that Rand Paul’s statement raises have more to do with the politics of 2010 than they do with the history of the 1960s.

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Lawrence Brooks Hughes - 6/5/2010

I don't for a minute doubt you are correct about the intent of those signs you saw in the Southern truck stop. What I lament is the passing of two centuries when men worked hard to accumulate some money, borrowed some more, started their own businesses, paid back their loans and then made a success of those businesses and took enormous pride in them. Their signs reflected their brio perhaps, more than their macho. And now, with the insatiable government consuming ever more of the work force, we are going to notice not only the loss of independent businesses, but also loss of the unique personalities who forged them. That is not a happy prospect.

I don't think my view conflicts with English common law you mentioned, because the "well-behaved" qualification probably meant "well-behaved in the judgment of the proprietor."

Maarja Krusten - 6/2/2010

Hah, I meant Hi, Andrew. And I've been chatting with you here on HNN for years. Took a break for awhile but decided to check back in this week. What is it about this thread that is making us mess us names? Using a smartphone is no excuse. Please accept my apology!

Maarja Krusten - 6/2/2010

Hi, Todd, much of what you wrote is familiar to me from my reading. Hey, I've even read The Making of Star Trek, it's buried on a shelf somewhere in my house, many years after I read it. . Your description of the barbershop as a clubhouse is apt. That is precisely why I think the small business owner would be affected by neighborhood standards – including those set by racist bullies, if such made up a significant part of his customer base. He would want to keep their custom and would not stand up for the disadvantaged, the minorities, etc. People often bond through what they are against, it seems. You even see it on blogs. Rarely is one going to find an owner who tells someone who is among the group of what Timothy Burke calls "the unlike" to come in and take a seat. Especially in any group or business that has a clubhouse type of vibe.

Keeping this short, am using my smartphone. Thanks for the interesting post.

Andrew D. Todd - 6/2/2010

Ah, I mis-spelled Lawrence Brooks Hughes' name. Apologies. ADT

Andrew D. Todd - 6/2/2010

A generic problem of the Civil Rights "narrative" is that it does not have a very good economic and technological context. I have commented about this in respect of the Montgomery Bus Boycott.


but this also applies to the Sit-Ins, and by extension, to the Civil Rights law as it applies to public accommodations.

The Sit-Ins did not typically involve small businesses. They tended to involve branches of national chains. The defining first sit-in in Greensboro was in a Woolworth's, a chain dime store. Perhaps Ralph Luker could comment on this point in somewhat more detail, but the intent of the students involved in sit-ins was in some considerable part to force large Northern corporations to cease treating accommodation with "Jim Crow" as a mere local difference. That was of course what happened, fairly quickly. The main office in Chicago or New York decreed integration, and that was the end of the matter. If the local manager didn't like it, he was welcome to find another job, and the same applied with even more force to the people behind the soda counter. The local manager was not master in his own house, or anything like that. He was a bureaucrat under orders. Over the last fifty years, grocery stores, of course, went from being small businesses on the street corner to being giant store chains, and merged into other kinds of stores, to the point that it is increasingly difficult to tell a grocery store from a discount/department store.

For what it is worth, the chains seem to have been disproportionately Northern. The North produced men like Ray Kroc of McDonald's (a Chicagoan of Bohemian descent), who could apply logistics and industrial engineering methods to run small stores with such efficiency that they could support a national command structure, and absentee stockholders, and still compete with independent stores.What makes McDonald's work is the fact of standardization, meaning that you can go into a McDonald's in a place you have never been, and get the kind of food you expect to get, not as good as it might be, to be sure, but not as bad as it might be, either. Now, I grant you that Sam Walton of Wal-Mart was a southerner, but he only arrived very late in the game, after about a hundred years of experimentation.One characteristic of men like Kroc and Walton was that they tended to filter out social interactions, and concentrate on the business at hand, to construct it in such a way as not to contain social interactions. That is, they would ask whether it was possible to sell X via vending machines, or something in that direction, at a much lower price. Quite often it was. The further trend was to the internet. The gloriously unsuccessful WebVan internet grocer was run by Louis Borders, who had started out running a college bookstore in Ann Arbor, Michigan.

I am tolerably sure that Woolworth's and its rival chains would have run their soda fountains as "loss-leaders," with a view to attracting more expensive purchases. There is a genre of "starving graduate student" stories-- for example, the actor William Shatner (Captain Kirk of Star Trek) is said to have lived largely on Kresge's fruit salad when he was doing "repertory theater" as a young man in the 1950's. (Stephen Whitfield and Gene Roddenberry, _The Making of Star Trek_, 1968, p. 219). Woolworth's was able to function as a whole because it had a more efficient purchasing organization in Brooklyn, that great district of small factories, than an independent store somewhere in the South could possibly have. For practical purposes, prior to desegregation, Woolworth's had two price schedules-- one for Whites and one for Blacks. Obviously, that did rise to the level of blatant economic discrimination.

Running a bar inherently involves dealing with patrons who have had too much. Bars get sued when someone exits, reeling drunk, and then causes an automobile accident. This is, I think, where Laurence Brooks Hughes' "tough guy" approach is relevant. The corporatist approach to selling alcohol, as represented by, say, Seven-Eleven, is that they sell beer by the six-pack (or nowadays by the "suitcase-pack"), but that they don't pretend to provide a place to drink it, or to supervise the drinking. Their customers are supposed to drink at home, and if they become drunk in a public place instead, say the local park, that becomes a nuisance for the police to deal with. The corporation doesn't try to run a workingman's bar, in short.

Barbershops are also different from stores, of course. I am reminded of Robert Morley's line, as Louis XI, in the film _Quentin Durward_ (1955): [going by memory] "If there is one man a king must trust, it is his barber-- who daily holds a knife at his throat!" More mundanely, a good barbershop is a kind of clubhouse. Any hundred or so men, under the standards of trim prevailing in 1960, could have clubbed together and supported a barbershop in their own neighborhood. I recall sitting in a barbershop in a Philadelphia neighborhood, circa 1990, waiting the better part of an hour for my haircut, and in the meantime scratching the ears of a large and shaggy mutt named Lana (at a guess, a German Shepherd-Birddog-cross), keeping her amused while her person, a local editor, was reading through my tearsheet file (*). The Italian barber had made the introduction, in his capacity as compere. The same kind of thing applies for a bar.

Here is a blog thread about a case involving what one might call the boundaries of public accommodation. It involves an apartment-sharing bureau (Roommates) and a classified-advertisements-listing service (Craigslist), which had posted apartment-sharing ads. The law in question is not the Civil Rights Act per se, but the closely related Fair Housing Act (Title VIII of the Civil Rights Act of 1968).


and see my analysis:

HUD site: Fair Housing Laws and Presidential Executive Orders

Quentin Durward (1955):

(*) Tearsheet file-- a custom prevailing among print journalists, a set of copies of published work, eg. things in newspapers and magazines. In recent years, that meant photocopies, but the name survives from a time when the cheapest way to assemble a file was to purchase extra copies and tear out the pages one wanted. Hence tearsheet. The functional equivalent of a C.V.

Javier Ramirez - 6/1/2010

@ Mike Schoenberg,

And if a militant black panther wanted to deny a white person the "right" to be served in his restaurant that would be perfectly fine. This is a really nonesensical debate since those who clamor like Maddow know exactly where Rand is coming from and know better. They understand this principle when left organizations like the ACLU defend Neo Nazis, KKK member's right to speak their spew. Does anyone on the left say "Hey those ACLU folks are racists!"? Of course not. Liberties dont always come with a pretty face on it. Libertarians simply carry this unpopular but very correct principle out more consistently.

Paul Siff - 6/1/2010

This is absolute nonsense. EVERYBODY knew the true meaning of those signs, which were by no means restricted to local businesses (the idea of having to maintain order in a small-town barber shop is a trifle weird). When, on a trip south in the spring of 1962, I saw such a sign above the counter at the well-known, heavily patronized truch stop, outh of the Border, its import was crystal clear. Southern whites never bothered to pretend that it meant anything other than "blacks keep out." A later comment has it exactly right: English common law held that the owner of a public accommodation was obliged to serve every well-behaved patron.

Maarja Krusten - 6/1/2010

If one believes as I do that most of what you need to know about human nature you learn by observing fellow students in middle and high school, then the barbershop owner in your scenario most likely would have been a wimp. The problem with your “It’s my shop and I’ll throw out anyone who is disruptive” scenario is not that it was premised on the physical abilities and individual judgment of the shop owner. The biggest problem is that the barber of yore probably wouldn’t have taken action that would have offended his most frequent and prominent customers. So right and wrong might have become blurred by a desire to stay in the good graces of people who might harrass minorities among other customers.

In essence, a blustering racist who was the self-perceived big guy in the neighborhood might influence the owner and keep him from allowing minorities to be served in the shop. All it would take would be for the big bully customer to snarl at the “wrong” person who was a member of a minority and who wandered into the shop seeking a haircut. Chances are that absent a non-discrimination law, the barber would throw out the minority, not the big bully. Regardless of his personal standards. So much for macho.

Don’t believe it? Just examine message boards, including this one here at HNN. Just as in high school, people might flinch at seeing the bullies and mean girls go after the nerds and uncool kids, but remain silent in order to avoid themselves becoming targets. One need only examine the message boards where people gather to see how superficial and shallow and selective many of their espoused values and principles really are. Rarely does someone speak up for someone from “the other side.” Most people seem to believe that one doesn’t win coolness points by being consistent and speaking out against bad behaviors by one’s own “side” as well as the “other side.” The desire to fit in with the group drives a lot of behavior, even if one is not a businessman dependent on repeat customers in a neighborhood. Tribalism rules among many adults, just as it did when they were kids in school. How often can you say of someone in a web forum that they really manned up on something?

Steve Russell - 5/31/2010

Although it was seldom part of the debate at the time, the framers of the 14th Amendment had to be aware of the common law of public accommodations. Blackstone was clear that holding one's property out as a place of public accommodation invested a right to use it in all persons except the drunk and disorderly. Title II was simply a return to (as Justice Douglas called it in a concurring opinion) "the good old common law." The alleged nonracist opponents of Title II would have been more convincing in their tender concern for property rights if they had explained why such rights ought to be CREATED to accommodate racism in a country where all states but one (Louisiana) claimed the English common law to prevail unless the legislature acted to change it.

Mike Schoenberg - 5/31/2010

If we are going to have Americans of all races fighting for our rights which has been going on for decades, it is obscene that we could deny them service for the same rights they fought. When I see Rand Paul being chased out of a restaurant with an ax handle ala George Wallace and meekly obeying ,then I will believe him and the rest of the Tea Party.

Lawrence Brooks Hughes - 5/31/2010

When I was a little kid there were signs which said, "WE RESERVE THE RIGHT TO REFUSE SERVICE TO ANYONE" posted in every other barbershop, tavern or store in the all-white town where I lived. It certainly did not mean "no persons of color will be served," because no persons of color were ever seen in that vicinity. I never had the feeling "this place intends to be racially segregated," nor do I think the proprietors did. It was instead a macho notice by the manager along the lines of "I'm big enough and tough enough to throw you out if you cause any trouble." It also proclaimed pride in his store, and said, "I will protect the ambiance here and maintain order at all times, to make sure that you enjoy being my customer." I think it was part of our American heritage which had nothing to do with racism, at least in the North, and was universally respected. I think it was a traditional reflection of our high respect for the rights of private property. Now we have legislated and enforced civil rights laws which throw out all of that, and this has entailed a cost which should cause us sadness... It would be best to live in a colorblind society where we could again put out all those small signs.

Javier Ramirez - 5/31/2010

Very good piece. Im pleasently surprised there are academics especially from Harvard no less who have not knee kerked labeled everyone who opposes Title II as a racist. I hope this article gets a wide reading.