Disturbing Lessons of the Rand Paul Fallout

By
Banned by Civil Rights Act of 1964 (B. Shahn, Library of Congress)
Banned by Civil Rights Act of 1964 (B. Shahn, Library of Congress)

Every few years, some Republican leader gets caught giving voice to a stubborn and persistent yearning for the racial dynamics of the era preceding the civil rights movement — a yearning that remains a foundational, defining ethic for at least some GOP members. In 2002 it was then-Sen. Trent Lott of Mississippi, who at a birthday party for segregationist Sen. Strom Thurmond, D-S.C., expressed a longing for the world promised by Thurmond's states' rights presidential candidacy in 1948.

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Thurmond had famously intoned in his race for the presidency that even federal troops would not compel Southerners to integrate white swimming pools, theaters and churches. At the Thurmond birthday party, Lott expressed pride that Mississippians had voted for Thurmond in 1948 and contended that if Thurmond had won, many of the "problems" of subsequent years would have been avoided. Lott later apologized repeatedly for his remarks.

This year it's Kentucky libertarian and Republican candidate for the Senate Rand Paul, who, during his performance on The Rachel Maddow Show May 19, insisted that the application of the 1964 Civil Rights Act to private businesses may violate the free speech right of business owners to be overt racists. Even a libertarian like Paul realized in subsequent days that he would have to dial back his comments.

But what has been most illuminating about the fallout from the Paul controversy is the reluctance of some mainstream Republicans to forcefully and clearly support the Civil Rights Act. In the days immediately after Paul's Maddow appearance, prominent Senators — including several members of the Senate Judiciary Committee — refused to explicitly condemn his assertions or to offer unequivocal support for the Civil Rights Act:

—Sen. Jon Kyl of Arizona: "You're trying to … re-debate all that. I'm not going to go to it."

—Sen. Jeff Sessions of Alabama: "The issue has been settled. The courts have ruled on it."

—Senate Minority Leader Mitch McConnell — the other Senator from Kentucky — first ignored questions from the media about Paul's comments and then issued his support of the act through his spokesman.

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Now Nevada Republican Senate candidate Sue Lowden has stumbled in answering whether she supports the Civil Rights Act. First she is reported to have hung up on a reporter from Politico during a telephone interview when she was asked whether she supported the act's provisions outlawing private business discrimination. In a subsequent television interview, Lowden refused to answer when asked whether she supported the act. She ended the interview and, after leaving the studio, called back to clarify her support for the act.

It's stunning to see this level of hesitation and incoherence among influential Republican leaders in expressing support for the Civil Rights Act, which, along with the 1965 Voting Rights Act, is one of the crown jewels of the civil rights movement. Passage of the act was won through the blood and guts of civil rights protesters and activists. The images of apartheid in America — the "white" and "colored" drinking fountains, the refusal of whites to serve blacks at lunch counters in Woolworth's and other stores, future Governor of Georgia Lester Maddox and his son wielding a pistol and an ax handle to keep blacks from entering his Pickrick Cafeteria — are among the most enduring exemplars of the ugly, corrosive reality of racism in mid-20th-century America. With the passage of the Civil Rights Act, these shameful images became a relic of our past.

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Like Paul, the owners of Southern drugstores and department stores thought that they had the private right to admit and serve only those people they wished. Both Congress and the Supreme Court disagreed. In Heart of Atlanta Motel v. United States, the Supreme Court unanimously ruled that the commerce clause of the Constitution gives Congress authority to enact the provisions in Title II of the Civil Rights Act that deny private motels the right to refuse to admit black guests.

In other words, the same power that authorizes Congress to appropriate money to build an interstate highway system gives it the right to ensure that businesses engaged in public activities benefiting from that system don't discriminate on the basis of race. (In a controversial decision in 1972, the Supreme Court later ruled that private clubs engaged in purely private functions can still discriminate.)

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The good news is that some Republicans were not afflicted with the stammering hesitation of Kyl, Sessions and Lowden. Sen. Lindsay Graham of South Carolina offered an impressive mini law lecture on the constitutional basis of the act's extension to private businesses, showing once again why he remains the most respected Republican member of the Judiciary Committee. Even the normally incoherent Republican National Committee Chairman Michael Steele offered a cogent and impressive performance on the Sunday news shows. Abandoning hip-hop rhetoric and cute catch phrases, Steele deemed Rand Paul "out of touch" with contemporary reality. It was among his best performances (although to be fair, if Steele had gotten this one wrong, there wouldn't be much hope left for him).

It's a moment worth examining when two candidates running for Senate seats in Kentucky and Nevada find themselves unable to unreservedly support the Civil Rights Act of 1964 until pressed by media backlash. It's an even more profound moment when elected Republican leaders hesitate to articulate a full-throated embrace of the act's provisions. The apparent presence of a significant constituency of Republican voters who continue to resent the complete dismantling of racial segregation in American life, and the need demonstrated by some members of the Republican Party to mollify that constituency, is a disturbing reminder of the enduring power of the far right in the Republican electorate.

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Sherrilyn A. Ifill is a professor of law at the University of Maryland and a regular contributor to The Root.

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