ACCOMMODATING TYRANNY?

In 1964, as a graduating high-school senior, I was opposed to the public-accommodations section of the 1964 Civil Rights Act.  Rand Paul, an ophthalmologist and candidate for the US Senate from Kentucky, has made some recent comments about that which have stirred up a very unpleasant memory. I cringe to admit what my thinking was back then. 

 As a product of very conservative instruction on American government in my senior high-school year, I was focused solely on the consideration of the owners of “public” businesses being controlled by the federal government in deciding whom they would serve in their eating or lodging establishments. I was indifferent to the very real suffering of those who were denied such service solely because of their skin color. I was obsessed with whether or not the “Commerce Clause” legally authorized the federal government to intrude into local commerce. The Commerce Clause in the US Constitution authorizes Congress to regulate “interstate” commerce, and the US Supreme Court confirmed that includes most public accommodations as regulated under the Act. 

Fast-forward about eight or nine years, and my thinking had undergone some considerable revision, probably due to some very timely and welcome legal education. No longer was I willing to make legal excuses for bigots. Ironically, my recent thinking has been hardened even further by the dust-up over the federal mandate to purchase health insurance from private vendors in the recently adopted healthcare law, which I think is unconstitutional because I do not believe it is a proper exercise of the powers set forth in the “Commerce Clause.” 

These seeming contradictions can be best explained (from my point of view) by noting that “commerce” is, by definition, a “public” activity. It seems clear to me that the Congress can require that anyone who CHOOSES to enter the marketplace (as a seller or buyer) must play by the rules of fairness. Given his obvious stale obsessions with the well-settled 1964 Civil Rights Act, Rand Paul should have already analyzed this situation to provide him with a firm position on the matter. Instead, he hemmed and hawed and dissembled about the validity of the 1964 Civil Rights Act, and he winds up looking like the buffoon he obviously is. 

Watching the crowd on MSNBC’s “Morning Joe” the other day, several were excuse-mongering about Paul’s status as a “mere” ophthalmologist who might well have a poor understanding of the law. But Senate candidate Paul willingly chose to take and express an extreme position on the law based upon a thoroughly discredited line of thinking, in which case, as an obviously well-educated, intelligent Board-certified ophthalmologist, he should have been prepared to defend his point of view. That he flip-flopped on the matter demonstrates that he is not ready for prime time. Any Kentucky voter who votes for Paul hereafter is a fool. 

As for the healthcare law, while Congress obviously has the power to demand fairness from those who choose to enter the marketplace, to my memory it has never exercised power to force private individuals to enter the marketplace and have business dealings with other private entities. This will be banged out in the courts, and properly so, but I reject the analogy of auto liability (not collision nor comprehensive) insurance because those who choose to avoid use of the roads are not required to buy such insurance, and those programs are established under state law, not federal law. The 10th Amendment draws a significant distinction between state and federal authority, not that very many voters, journalists, politicians or judges seem to care these days. 

I am deeply sorry for failing to recognize the pain and suffering that my stingy analysis of the 1964 Civil Rights Act disregarded so long ago. I am grateful I finally saw the light. There is a big legal difference between the 1964 Civil Rights Act and the healthcare law.