“Institutional racism” per Rand Paul

Rand Paul says he’s against “institutional racism.” By “institutional” he means “public-sector.” Someone needs to tell libertarians that the private sector and civil society are also “institutions,” and that those institutions can be just as oppressive as public ones. Once you understand that private as well as public power can threaten freedom, you’re ready to graduate from libertarianism and join one of the adult groups.

Paul’s attempt to liken private discrimination to free speech doesn’t really make much sense, unless you think that having to hear speech you disapprove of is just like losing a job because you’re the wrong race or the wrong religion. Why Rachel Maddow, who has a lot on the ball, focused on public accommodation rather than employment, I’m not sure.

Update Brink Lindsey shows that it’s possible to graduate to adulthood without giving up the libertarian label:

I think Rand Paul is wrong about the Civil Rights Act. As a general matter, people should be free to deal or not deal with others as they choose. And that means we discriminate against those we choose not to deal with. In marrying one person, we discriminate against all others. Businesses can discriminate against potential employees who don’t meet hiring qualifications, and they can discriminate against potential customers who don’t observe a dress code (no shirt, no shoes, no service). Rand Paul is appealing to the general principle of freedom of association, and that general principle is a good one.

But it has exceptions. In particular, after three-plus centuries of slavery and another century of institutionalized, state-sponsored racism (which included state toleration of private racist violence), the exclusion of blacks from public accommodations wasn’t just a series of uncoordinated private decisions by individuals exercising their freedom of association. It was part and parcel of an overall social system of racial oppression.

Paul’s grievous error is to ignore the larger context in which individual private decisions to exclude blacks were made. In my view, at least, truly individual, idiosyncratic discrimination ought to be legally permitted; for example, the “Soup Nazi” from Seinfeld ought to be free to deny soup to anybody no matter how crazy his reasons (they didn’t ask nicely, they mispronounced the soup, etc.). But the exclusion of blacks from public accommodations wasn’t like that – not even close.

“Part and parcel of an overall social system of racial oppression.” That’s what “institutional racism” means.

Second update David Bernstein states what I take to be the more conventional libertarian belief: that “private discrimination should, in general, be legal.”

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

21 thoughts on ““Institutional racism” per Rand Paul”

  1. I doubt Paul realizes the term was coined by Stokely Carmichael. It's usually a hyper-progressive guilt-trip phrase: an organization like the London Metropolitan Police can be deemed guilty of "institutional racism" (Macpherson report) without anybody in it necessarily being a racist. Since it's impossible to design institutions that don't discriminate in subtle and unconscious ways, they are all sexist, racist, ageist, etc.

  2. Rachel Maddow focused on public accomodation because she asked the question and RP refused to answer it. She did what all good journalists should do by refusing to allow the man to do a little dance away from a very substantive issue. On last night's show she stated that she had not intended to go down that road but Mr. Paul lead the interview there with his non-answers. She made the point stick which is why he is having to face this issue.

    This points to precisely the trouble with american journalism and what has been so complained about in recent years. Reporters ask a question and politicians dance away from it so the reporter moves on. It has become SOP and is now thought of as good form to the point where journalists asking tough questions is seen as impolite. Rand Paul's statement that going on the Maddow show was a mistake that he won't make again is in line with this trend. The inference is 'How dare she insist I answer a tough question when I tried to wiggle out of it?' This stuff from a stanard bearer for Libertarianism, a philosophy that prides itself in hardheaded realism.

  3. And once you realize that the government forces you to be it's customer at the point of a gun, and private institutions don't, you'll be ready to graduate from liberalism, and join people who actually care about liberty.

    Seriously, why DO 'liberals' insist on using the label, when it's so wildly inappropriate? Wouldn't it be more honest to start calling yourselves "utilitarians"? Seems to sum it up. Liberty certainly isn't your highest value, you guys prove that daily.

  4. Brett persists in his manichean conflation of liberals with absolutist totalitarians. Brett, do you disagree that a better society can be built at the price of some liberty to oppress your fellow man?

  5. What I think is that, starting from where we are now, a better society could be built at the price of restoring some liberty to our fellow man. And that, if the price of a 'better' society were taking away some liberty from my fellow man, I'm not entitled to build that society, 'cause my fellow man's liberty isn't mine to take away.

  6. Brett Bellmore says:

    "And once you realize that the government forces you to be it’s customer at the point of a gun, and private institutions don’t, you’ll be ready to graduate from liberalism, and join people who actually care about liberty."

    Tell that to the many coastal 'customers' of BP.

  7. 'It’s usually a hyper-progressive guilt-trip phrase: an organization …can be deemed guilty of "institutional racism" (Macpherson report) without anybody in it necessarily being a racist.'

    It's also a recognition of the fact that there are structures, inclinations, default assumptions, and unrecognized axes of differentiation in most institutions that systematically bias the behavior of those institutions in prejudicial ways disproportionate to the biases of the individuals in it.

    In other words, the Metropolitan Police can, as an institution, end up with very racist behaviors even if the individual policemen are, on the whole, not very racist.

  8. I guess I should point out that Mark's university–one he participates, as a faculty member, in the governance of–discriminates by race in employment as well as admissions. Just so we're clear on what Mark's principles are.

  9. Why Rachel Maddow, who has a lot on the ball, focused on public accommodation rather than employment, I’m not sure.

    I think the 1964 Civil Rights Act is sometimes called the Public Accommodations Act, just as the 1965 Civil Rights Act is sometimes called the Voting Rights Act.

  10. Rand Paul has just come out in favor of the "freedom" of BP to cause millions of barrels of oil to spill into the Gulf of Mexico. Apparently any attempt to criticize this is "un-American" because it is an "attack on business." Apparently the rights (including property rights!) of the thousands of people who will be adversely affected by this spill aren't worth worrying about.

    This kind of thing no longer surprises me, but it will never fail to disgust me. All libertarians, every single one, are lying hypocrites.

  11. Barry, you took the words out of my mouth. The "barrel of a gun" stuff is always really weird. It's the rule of law. I'm required to pay my parking tickets. But I've never once thought of it as "being forced at the barrel of a gun". What is it with these people and guns?

    Brett, I'm curious to know what you think might prevent more BP-style disasters going forward?

  12. I think what we need here is an equalization of remedies. The racist who wants to operate a lunch counter can build a private sidewalk, and if a black person comes in for lunch, he can file suit in federal court and request a temporary restraining order against their presence, which won't be dismissed as moot if it gets on the docket before the black person finishes. Either that, or when there's a dangerous oil spill we get to call the police and have the CEO of BP locked up indefinitely (talk about flight risk) while the potential criminal case is investigated. As people have been saying elsewhere, it's the potential wrongs for which (some) libertarians feel it's justified to invoke the coercive power of the state that shows us what's really in their hearts.

  13. @paul: And the racist can't incorporate his deli for limited liability or sell shares on a regulated exchange. And no police or fire department protection for it. And if there's some way to limit the customers exclusively to racists and libertarians, no health inspections.

  14. Brett, what freedom is it that you lack? Libertarians speak of some hypothetical freedom that always boils down to privatising roads, parks, schools, water, sewer, electrical infrastructure and selling anything owned and built by my tax dollars for a song to some corporation who will charge us all out the rear for the privilege of using what we used to own and denying us any real say in how those resourses are operated and maintained. Hell, we don't even own the prisons anymore. Or half the functions of the military. And isn't Haliberton doing a bang up job for us with that at 20 times the cost?

    And now Mr. Paul says he believes that once those resourses are privatised the new private owners should have the 'freedom' to deny access to anyone they choose. This theoretical perfection of liberty when it shakes out sounds an awful lot like good old style serfdom with a few rich people owning everything and everybody else having to ask permission to walk down the street.

    I like the liberty of having public services like fire dept. and police available to everyone and the freedom to not need to worry about whether some racist clown might decide to exclude me or a friend from buying a beer at a tavern or using the rest room.

    And as far as "freedom to refuse service for any reason", Jim Crow was the law of the land in fact through much of America (and fuctionally through the rest)within my lifetime and will be again if it is allowed. All this nonsense about the "New South" is pure blather. The south is pretty much as racist as ever which is exactly why Rand Paul is twisting himself insideout to not say he favors government mandated segregation. He knows who his base is and what they want to hear.

    In a libertarian paridise we are all free to not have police, fire dept, schools, health care and won't even be able to die in the street because it will belong to some corporation basesd in Dubai. And forget about the mom&pop donut shop refusing service to racial minorities because the corporate chains will have the freedom to run all locally owned businesses out of business, kind of like what is happening in America now.

  15. This is an uncommonly silly blog post, Professor Kleiman. You make a minor point by saying that Rand Paul habitually misuses the word "institutional" when he means "governmental." Of course you immediately nullify whatever you had previously brought to the table by overgeneralizing to say "Somebody needs to tell libertarians that…" Are you really pretending that libertarians, as a class, fail to grasp this distinction? Do you think Richard Epstein or Alex Kozinski couldn't give you an accurate definition of institutional racism? Or Eugene Volokh or the late Robert Nozick? Seriously, you should just apologize. You're being willfully obtuse (ironically in the exact same way that Rand Paul was in that very statement!)

    Of course your post only gets more confused from there. The defense of private discrimination is that the range of things that are morally wrong and those that are legally forbidden is not simply interchangeable.

    Of course there are good (and bad) arguments for banning private discrimination. But misrepresenting the other side is just attacking straw man. It would earn any freshman at UCLA a "D."

  16. "I’m not entitled to build that society, ’cause my fellow man’s liberty isn’t mine to take away." – Brett Bellmore

    So why, then, are you opposed to laws preventing YOU, or any other employer, from taking away the liberty of a person of color to get a job that they are perfectly qualified to perform?

    I can understand if everybody disagrees with Rand Paul, but are we going to ban all forms of discrimination in the workplace? Many employers discriminate against people with tattoos or with ripped jeans. Should this be banned too? You might say that employees can easily change pants. Well, if there was a cheap and easy way to change one's skin color, then would it be okay for employers to discriminate based on race? If discrimination against unusual body piercings is acceptable to you, then why should Rand Paul's comment be banned from the mainstream as Mark Kleiman argues?

  17. David C.—remember, the Civil Rights Act is abridging the *particular* "right to discriminate on skin color". It's not some vague, philosophical statement that "discrimination is bad and nobody has the right to discriminate". Are we going to ban all forms of discrimination? Well, start listing them and send them to Congress for a vote. In 1964 we voted to ban this one, particularly horrible, demonstrably-corrosive form. If Congress votes to ban piercing-discrimination in the Body Art Rights Act of 2019 … well, that's how democracy works.

  18. I think the 1964 Civil Rights Act is sometimes called the Public Accommodations Act, just as the 1965 Civil Rights Act is sometimes called the Voting Rights Act.

    The public accommodations provision is TItle II of ten. Contrary to Paul, there's a second title that's addressed to private discrimination, Title VII, the employment discrimination provision. Maddow may have failed to bring that up because Paul sort of elided it in all his comments.

  19. There are left-libertarians, who call into question the usual, lazy formulation according to which perfect liberty obtains when unequal private property arrangements are enforced perfectly. (Private institutions don't use force — except when they do — because, like the medieval Church, they call the cops to do the rough stuff.) If you own something I need, I'm not free to use it. If I try to, the police may use force to stop me. Whether or not I was right to try, whether or not property rights are justly distributed, I am unfree to use that thing of yours. This is a constraint on my liberty. A pure market economy looks like the libertarian ideal only when the underlying property regime is rendered ideologically invisible.

  20. Kevin Moroney: I agree entirely with your analysis. I should have made it clear that like you I disapprove of institutional discrimination, which is today probably a more serious problem than personal prejudices. If you are confined to a wheelchair, it's not the few people who sneer and laugh at you that make your life difficult, it's a physical and socil environment built by un-disabled people who forgot about you. I do however think it's unhelpful to use the same word to describe bigotry and unconscious and structural bias. It lets the true bigots of the hook all too easily because they can say tu quoque.

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