Fundamentals of the Social Contract: Why Rand Paul Is Wrong

According to aspiring legislator, Rand Paul, the Civil Rights Act of 1964 went too far in prohibiting racial discrimination by private businesses. All the while asserting that he would have voted yes for the Civil Rights Act, Rand nonetheless believes that private businesses should be allowed to refuse goods or services to black people, at least that's what he told Rachel Maddow in an interview. His words have thrown the GOP into something of a frenzy as they try to distance themselves from his remarks and yet reap the benefits of his popularity with the tea party contingency.

I have a very personal reaction to Paul's observations. I grew up in the era of Jim Crow when segregation was the norm. White Only and No Colored Allowed signs were as common as traffic signs. All businesses were legally allowed to discriminate, to deny goods and/or services based on the color of the consumer's skin. I don't have any desire to return to the good ole days. I also don't hold with the thinking that given time to evolve, Jim Crow would have died a natural death. Jim Crow wasn't born. The system of racial discrimination known as Jim Crow was artificially and intentionally created as a response to the post civil war efforts of black people to claim their rightful place in the social, economic, and political hierarchy of this country. There was nothing natural about it. It couldn't die; it had to be executed. I have no doubt that without government action legal segregation would still be a part of the fabric of this nation.

Rand Paul's position is seriously flawed; however, based on the comments littering the Internet on this topic, there are a lot of folks out there who have succumbed to the same flawed thinking. Much of it stems from worship of the cult of individuality. A characteristic of this cult is a belief that my individual rights supercede all other rights. Of course this is totally irrational. If my rights are more important than your rights, then aren't your rights more important than mine? What about Mary Sue next door, where do her rights fit in this hierarchy? Although said much more eloquently by such diverse thinkers as Locke, Rousseau, Jefferson, and Hobbes, it's this tension regarding individual rights balanced against the needs of the whole that necessitates the formation of governments. (My listing of only western philosophers is not intended to suggest that only white males have wrestled with these issues. It's just that as a product of a limited American public education, I am most familiar with the works of Eurocentric writers, which is an entirely separate topic to be addressed someday.)

Society is the whole, individuals are the parts. Societies were formed by the individuals to create a system in which the individuals could agree to live governed by rules to protect the common good. Locke, Rousseau, Hobbes, Jefferson and many others have defined this concept as it relates to the purposes of goverment. Those who do not wish to agree to the social contract are free to live outside of it but cannot then also benefit from it. (i.e. you don't have to own a business) This is the basic flaw of Rand Paul's argument that a private business has the right to engage in discrimination. Businesses are by definition public enterprises. Its goods and services are sold to the public and as such the business is part of our system of commerce. The regulation of commerce is constitutionally assigned to Congress. If the businessman wishes to engage in discrimination, he may do so but not via his public enterprise. It's up to him to figure out how to run a profitable business enterprise without engaging in public commerce, if he wishes to engage in discrimination as to whom may partake of his goods and/or servces.

The most extreme example of those who place individual liberties tantamount to the society as a whole are those who commit crimes. The thief believes that his/her needs are superior to the needs of all others thereby justifying their right to take what they need. Indeed, if we follow the argument of the superiority of individual rights to its logical conclusion, then those who commit criminal acts are merely choosing to place their individual needs above the needs of the whole. Under this logic, our prisons are populated by true libertarians.

However, in a society, we all agree to subvert our individual liberties to the benefit of the function of the whole. To not do so results in anarchy and a society in which no one has any security. Whatever property that I may have secured would constantly be at risk of being taken by someone who had the strength to do so in a world governed by the supreme right of the individual. Instead, we have laws, enforcers, and systems of punishment to maintain order so that property rights, mine and yours, are not subject to the arbitrary will of might makes right. Which brings me to the final element of the social contract, governments are not instituted to protect the rights of the strong but rather to ensure that even the weak have protections. Otherwise, in the words of Hobbes,we would be in a constant state of war, and man would be a solitary being living an existence that is nasty, brutish and short.

P.S. A good friend, Mark Olmsted, writes for the Huffington Post. In his most recent piece, People and Property: What Rand Really Wants, he presents an astute assessment of Rand Paul's disturbing views which suggest that civil rights should be optional. Check it out.