Understanding Rand Paul and the Civil Rights Act of 1875

Kentucky Republican Senate primary winner Rand Paul has stated that he does not support repeal of  the Civil Rights Act of 1964 but disagreed with one of its eleven titles that required desegregation of privately owned accommodations. While he claimed on MSNBCs Rachel Maddow show that most discriminatory practices during the Jim Crow era resulted from public and not private discriminatory action, he was incorrect. However, I think his raising the ideological issue of appropriate federal regulation of privately owned units is appropriate and has been a significnat issue in American politics. He should not be silenced for raising the issue of appropriate governmental restrictions of private citizen conduct but challenged robustly on his apparent lack of empathy and understanding of this particular issue in the context of racial discrimination.

I do not think Dr Paul is a racist but, perhaps, is simply unaware of the impact that private institutions had in furthering apartheid from the end of the Reconstruction in 1877 through the 1964  Civil Rights Act  and Voting Rights Act of 1965. Yet American history produces a long record of addressing the specific concerns that Dr Paul raised. Congress passed a little known but major piece of human-rights legislation a decade after the Civil War ended: The Civil Rights Act of 1875. It basically stated that public  and private  accommodations could not discriminate against African Americans. Specifically hotels, entertainment venues and businesses could not discriminate against the freedpersons or others of the Afro-American race. This bold piece of legislation was almost as grandiose as the iconic 1964 Civil Rights Act but it is buried and marginalised in history. Why?

The answer is the Supreme Court in the “Civil Rights Cases of 1883” ruled in its usual racist and privileged manner, that the 1875 law was unconstitutional. Of course it was constitutional but the white-male only court ruled it was illegal because it encompassed private as well as public accommodations. Congress could legislate civil rights law vis a vis public accommodations: schools, parks, trams, libraries, public pools but not privately owned businesses. Hence, Rand Paul’s argument against the Civil Rights Act of 1964 was identical to the argument of the Supreme Court against the Civil Rights Act of 1875 in 1883.

So Dr Paul is clearly in the mainstream of American thinking a century and a quarter ago. A lot has happened since the Court’s egregious ruling and perhaps Dr Paul should acquaint himself more fully with the progress that has been made and the measurement of that progress against those who seek to perpetuate apartheid and Jim Crow throughout America. A private business that serves the public must adhere to federal civil-rights law. A private club has more discriminatory leeway and Dr Rand’s desires in that regard are presumably fulfilled. Yet thank goodness that the Dr Pauls of this world have not been able to determine public policy or we might still be in the dark ages of Jim Crow, segregated lunch counters and “colored only” drinking fountains and washrooms.

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