Richard Epstein on Libertarianism and the Civil Rights Act

Rand Paul's Wrong Answer
Richard A. Epstein
Forbes.com
May 24, 2010

As Rand Paul captures the republican senatorial nomination in Kentucky, libertarian theory takes its lumps in the popular press. Paul's difficulties begin with his first name, Rand, which was given to him by his father in honor of Ayn Rand, one of the patron saints of the libertarian movement in the mid 20th century. Knowing that he wears his libertarian credentials on his sleeve, Rachel Maddow, the adept liberal talk show host, asked him this simple but fair question: Does the libertarian affection for private property and freedom of contract mean that the Civil Rights Act of 1964 was wrong to deny the white owner of a luncheonette the right to exclude a black customer from his premises solely on the ground of race?

Paul answered yes, based on a rote application of the Randian approach. The correct answer to that question was no, for reasons that place normative libertarian theory in its proper social and historical context, to which Paul was blind. That context of course is Jim Crow segregation that dominated the South and also exerted its baleful influence in the North. State-imposed segregation is the antithesis of what every libertarian theory requires, by imposing legal barriers that make it virtually impossible for individuals to enter freely into voluntary transitions with trading partners of their own choice, white or black.