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What's behind Rand Paul's confusion

By Tamar Jacoby, Special to CNN
  • Tamar Jacoby says Rand Paul's response on Civil Rights Act reveals underlying tricky issue
  • What's federal role in regulating how private actors treat those of another race? Jacoby asks
  • Civil rights is area Americans will let government enforce for common good, she says
  • Jacoby: Paul confused essential law, government overreach, but that shows issue's complexity

Editor's note: Tamar Jacoby is author of "Someone Else's House: America's Unfinished Struggle for Integration."

Washington (CNN) -- The caricatures have been flying from left and right since Tea Party Senate candidate Rand Paul started talking about the 1964 Civil Rights Act. That Rand Paul is a racist. That his nomination proves the Republican Party is, too. That MSNBC host Rachel Maddow is a man-eating sorceress. That the liberal media ... you get the idea.

But actually, whether Rand Paul knows it or not, when he appeared unwilling to tell Maddow that he could fully support the Civil Rights Act, there was an important question lurking beneath the surface of his confused remarks. It's not a new question -- Americans have been grappling with it for 150 years.

But it and others like it are sure to be reopened in the months to come, as the debate begun by the Tea Party deepens and the nation revisits the issue of where government should begin and end.

Paul thrust us into one of thorniest corners of that larger question: What's the government's role in regulating how private actors -- private individuals and the private sector -- treat people of another race.

The framers of the 14th Amendment wouldn't go there; in 1868, America wasn't ready for it. That classic text, the foundation of all civil rights law, deals only with how the state, not individuals or private businesses, should approach racial difference.

Just seven years later, 12 years after emancipation, Congress was ready to take a bolder leap. The 1875 Civil Rights Act barred segregation in "public accommodations" -- "inns, public conveyances on land or water, theaters and other places of public amusement."

But as it turned out, this was still too big a step, and in 1883, the Supreme Court overturned the 1875 law. The upshot was the Jim Crow era, a period of blatant hypocrisy during which official America proclaimed racial equality, but private actors, particularly in the South, violated the idea every day.

So things stood for almost 100 years until President Kennedy, prompted by the civil rights movement, sent a bill to Congress modeled on the 1875 Civil Rights Act. It was the measure that would become the 1964 Civil Rights Act.

The breakthrough of the 1960s, the big idea, was that on a matter this important, this fundamental and this essential to what our nation is all about, the government can and should tell the private sector what to do.

For libertarians -- Paul, Tea Partiers and some more sober thinkers -- that's a troubling notion.

But in the 1960s and since, most Americans have accepted that the imperative of racial equality trumps the need to limit government -- up to a point, at least.

And this is the nub of the issue: In some cases, the value of what is being regulated, or guaranteed, overrides Americans' traditional suspicion of government.

We do, after all, allow government to say that murder is unacceptable -- in private and public spaces. On lesser issues (Are mustaches acceptable? Can men wear purple tights? What political party do you belong to?) most Americans think it's none of the government's business what happens in a private home or private business.

But on race, as on murder, since the 1964 Civil Rights Act, most Americans have agreed that the issue is important -- more than important, foundational -- enough that the government can and should regulate what happens in the private sphere.

Imagine how things might have looked if we hadn't decided that. If, like the 14th Amendment, the 1964 Civil Rights Act had covered only state action, then bus companies, airlines, restaurants, employers and landlords across America could still be discriminating on the basis of race.

Libertarians -- and this is a serious, sophisticated argument -- say that the market can and would correct for this. They say that customers would shun, say, restaurants and hotels and national brands that discriminated on the basis of race and that eventually those bigoted operations would go out of business.

The libertarians' point is that there's no need, in fact it's inappropriate, for the government to get involved. But the fact is the market didn't correct for widespread and pervasive discrimination of this kind in the Jim Crow era. On the contrary, it flourished widely in America for 100 years after the Civil War.

It was this failure that drove the civil rights revolution. And the rationale for the federal government's long reach into what happened at private accommodations such as lunch counters made perfect sense at the time.

Does that rationale still apply today -- nearly five decades after passage of the 1964 Civil Rights Act and two years into the presidency of the first black president, Barack Obama?

I think most Americans would say it does, that racial equality is important enough to who and what we are as a nation that the long arm of government should reach into the private realm and bar discrimination there -- just as it bars murder

Of course, libertarians have every right to disagree with that. That they do doesn't make them racists. Poor, befuddled Paul couldn't seem to figure out if he did or didn't agree (although he later said that he would have voted for the Civil Rights Act). But what his cartoon controversy underscores is the complexity of the issue.

Yes, many Americans, including me, think the government is overreaching now -- badly overreaching.

But as all government all the time is not the answer, so no government ever is surely just as wrong.

How to find the right balance? That is going to be the challenge of our era. Paul stumbled into the argument and shed very little light. But this won't be the first or last time we as a nation consider the question.

The opinions expressed in this commentary are solely those of Tamar Jacoby.