Noted Tea Party spokesman and Kentucky Congressional candidate Rand Paul has developed a nasty case of foot-in- mouth disease as of late, attacking government intervention in areas ranging from civil rights and environmental regulation to worker protection and social welfare.  The son of libertarian Congressman Ron Paul, Rand skyrocketed to fame after winning a Republican nomination for the U.S. Senate this month.

Commentators in the liberal press such as Rachel Maddow of MSNBC and Joan Walsh of Salon skewer Paul in light of his support for rolling back the government’s protection of basic civil rights.  They have good reason to do so in light of his statement that private businesses should have been exempted from the 1964 Civil Rights Act’s prohibition on racial discrimination, and his dismissal of debates about historical segregation as “obscure.”  Paul would have Americans believe that private businesses should enjoy the human “right” under the First Amendment to discriminate based upon the color of one’s skin. 

 

Paul worsened his public image following his civil rights comments when he attacked the Obama administration as “un-American” for criticizing the companies involved in the Gulf oil spill and the West Virginian mine collapse.  Paul declared that Obama shouldn’t lean too hard on BP and Massey Energy (the operator in West Virginia mine collapse), since everyone knows that “sometimes accidents happen.” 

 

Paul would have Americans believe that private companies should be exempt from charges of criminal negligence, since government regulation represents an unwanted and unnecessary intrusion into the efficiency of “free markets.”  But there’s plenty of negligence to go around when examining the recent oil and mining “accidents.”  A CBS investigative report finds after consulting with a worker from the British Petroleum-Transocean Deep Horizon oil rig that BP executives knowingly disregarded safety procedures in order to skirt further delays and to increase the pace of oil production.  Making matters worse, the federal Minerals Management Service (MMS) provided BP with permission to drill at the accident site without first obtaining the needed permits to assess the potential threat to endangered species.  MMS continues to grant such permits despite the gulf oil spill disaster.  MMS also has a history of ignoring its biological experts and engineers whenever they warn against the dangers of offshore drilling to local wildlife.  MMS consistently pressures its scientists to change the conclusions of studies warning of possible dangers of drilling in the gulf to the environment.

 

In the case of the West Virginia mining “accident,” Massey Energy is now under investigation by the FBI for alleged bribery of state and national inspectors.  Massey has a history of criminal negligence, as the recent Virginia disaster site was implicated in 57 different safety violations in the month prior to the collapse, including a refusal to develop an adequate ventilation system.  A recent federal audit by the Mine Safety and Health Administration (MSHA) identified a lack of regulation – rather than excessive government involvement – as a major problem in the mining industry.  More than half of MSHA’s “veteran” inspectors had not finished their required training as of 2006 to 2007, with “no consequences” leveled against those who fail to complete training requirements.

 

In contrast with Paul’s condemnations of government interference in the “free market,” even centrist Democratic strategists and pundits are beginning to attack the Obama administration for failing to make regulation a priority.  Democratic strategist James Carville and MSNBC talk show host Chris Matthews criticize Obama for his “let BP handle it” approach to the gulf oil spill, which assumes that the private sector can most efficiently handle national environmental emergencies.  As Carville warned, the administration is “risking everything by this ‘go along with BP’ strategy they have that seems like, lackadaisical on this…if you let BP handle it, it’ll all go away.  It’s not going away.  It’s growing out there.  It is a disaster of the first magnitude and they’ve got to go to Plan B.” 

 

The Democratic Party’s tepid, meandering response to the gulf oil spill is the opposite of what proponents of regulation would expect, and the consequences have been dramatic. At least six million barrels of oil have been released over the last month into the gulf following the underwater oil well blowout.  The river of oil spewing throughout the region has now reached the Mississippi delta, a crucial location for migratory birds, in addition to more than 400 other species that are under assault from the spill.  It is within this context that Rand Paul’s Democratic opponent Jack Conway lambasted Paul for his “deeply held conviction that corporations should be allowed to do what they see fit without oversight or accountability.”

 

Despite Paul’s comments, he’s enjoyed success in the Kentucky Republican primary, in large part because of sympathetic media.  Paul’s stance on civil rights was a matter of public record when Louisville’s Courier Journal ran an April 25^th editorial rejecting his candidacy.  The paper deplored Paul for his “repulsive” and “unacceptable view of civil rights, saying that while the federal government can enforce integration of government jobs and facilities, private business people should be able to decide whether they want to serve black people, or gays, or any other minority group.”  National media largely ignored this early warning sign in the following weeks, to the benefit of Paul’s candidacy.  While a Lexis Nexis search shows that Rand Paul was mentioned in 66 national newspaper articles from April 25^th to May 19^th, not a single one mentioned his position on the Civil Rights Act. 

 

When Paul’s racism was finally re-exposed in NPR and MSNBC interviews (on May 19^th and May 20^th respectively), right wing media went into action defending Paul and apologizing for his bigotry.  On Fox News Sunday, Sarah Palin attacked Rachel Maddow as “prejudiced” for her discussion of Paul’s take on the Civil Rights Act.  In the Wall Street Journal, James Taranto lauded Paul’s candidacy for doing “more good than harm” despite his making “a rookie mistake” by “answering the way he did” regarding the Civil Rights Act.  Readers could be forgiven for concluding that Taranto’s displeasure was focused more on Paul being outed as a racist than his actually being a racist. 

 

Neoconservative William Kristol curiously reframed Paul as a supporter of the Civil Rights Act (Fox News All Stars, May 20^th), and commended him for being “a plainspoken,” “honest and good-natured guy.”  Fox News contributor John Stossel echoed Paul’s opposition to civil rights: “I’m in total agreement with Rand Paul…because private businesses ought to get to discriminate.  And I won’t ever go to a place that’s racist and I will tell everybody else not to and I’ll speak against them.  But it should be their right to be racist.”

 

Much of the ideological support for Paul stems from archaic and misinformed libertarians who believe that he is simply following the dictates of “the Constitution” by opposing “big government.”  As a professor of American Government who teaches the Constitution, I have run into numerous individuals who embrace this line of thinking, echoed by a recent racist editorial in the Washington Times that celebrates “The Rand Paul Uprising” for its “libertarian and conservative ideas.”  In the piece, Paul was applauded for his “clear vision for the country,” which includes opposition to bailouts and efforts to limit “so-called global warming” – all pursued in the name of “restrain[ing] government by following the Constitution…The ordinary men and women who make up the Tea Party want candidates who embrace the values of our Founding Fathers and can communicate them clearly.”  One could uncontroversially include among the Founding Fathers’ “values” their support for slavery.

 

The far right’s attachment to Constitutional Originalism is, at its core, racist.  Originalism views the Constitution as largely static, rather than a constantly changing document.  The “original intent” of the Founding Fathers is seen as the most important guiding force behind the creation and implementation of law.  Often left unstated among Originalists is the obvious fact that most of the Founding Fathers (FF’s) were either Deists or only weakly supportive of Christianity (and largely opposed to recognizing it as an official state religion).

 

Ignored in references to the FF’s wisdom is the fact that slavery was legally protected in the Constitution and seen as morally desirable by the Founding Fathers.  The slave trade was Constitutionally protected for at least twenty years following the nation’s founding.  Another disturbing part of the FF’s “original intent” was the 3/5ths compromise, included in the Constitution, which required slaves to be counted as partial citizens for the purpose, not of granting them citizenship rights, but for boosting the voting power of Southern racist slaveholders in Congress.

 

Whether Rand Paul and other Originalists admit it or not, a vote against the Civil Rights Act is essentially a vote for segregation and racism.  Those who bother to familiarize themselves with the history of the 1964 Civil Rights Act and 1965 Voting Rights Act know that they were vital components of the civil rights movement.  These initiatives were necessary to overcome longstanding practices of public and private discrimination, in addition to overcoming the denial of basic and citizenship rights – which was the original goal of the post-Civil War Amendments. 

 

While the 13^th amendment officially terminated slavery, the 14^th and 15^th Amendments were supposed to grant former slaves full citizenship and voting rights.  These new protections for African Americans, however, were soon rolled back by the Supreme Court with cases such as Bradwell v. Illinois (1873) and the Slaughterhouse Cases (1873).  These decisions essentially nullified the Privileges and Immunities Clause of the 14^th Amendment, which dictated that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”  In Bradwell v. Illinois, the Supreme Court eliminated the Privileges and Immunities clause as it related to individuals’ protection from race or sex based discrimination in employment, as Justice Joseph Bradley wrote that a woman’s “destiny” was relegated to “fulfill the noble and benign offices of wife and mother.”

 

In the Slaughterhouse Cases, the Supreme Court ruled that the 14^th Amendment protected only those privileges and immunities related to the behavior of the federal, rather than state governments.  Essentially, this meant that state and local governments were not bound by the Civil War Amendments, and were free to impose all types of discriminatory policies against newly freed slaves, including the Poll Tax, Grandfather Clause, and Literacy Test used to politically disenfranchise blacks.  Such discrimination was widespread among government officials and private entrepreneurs for the next hundred years.  It wasn’t until the passage of the Civil and Voting Rights Acts in the mid 1960s that the federal government again began to take greater responsibility for enforcing basic citizenship rights for blacks who had long been repressed throughout the North and South.  We should remember the tremendous importance of these civil rights initiatives when we hear conservatives like Rand Paul complaining about the Civil Rights Act, and when Republican Congressman Tom Tancredo incites Tea Party audiences by complaining that President Barack Obama was only elected because “we do not have a civics, literacy test before people can vote in this country.”

 

Libertarian reactionaries have developed a rather warped understanding of “Constitutionality.”  Rand Paul claims in his speeches that 80-90 percent of the actions of Washington officials are unconstitutional.  Libertarians often see the Constitution as retaining some inherent historical and traditional value outside of its utility to the American people living today.  Nothing could be further from the truth.  The Constitution has no inherent value outside what we wish to attribute to it.  It serves a purpose only insofar as it helps to promote democracy.  When it hinders democracy, as it often does, it becomes a liability.  If the right wing is able to appropriate the Constitution in defense of segregation, deregulation, and unhindered corporate profits, it will become an escalating threat to democratic governance.

 

There’s little basis to right wing attacks on the Civil Rights Act as “unconstitutional” considering that it was originally passed in order to reinstate basic rights that were protected under the Civil War Amendments.  Attacking the amendment process as “unconstitutional” (at least in relation to civil rights laws) represents nothing more than a reactionary effort to prop up a racist state at the expense of the 28 percent of Americans who are black or Hispanic.  The amendment process is in place so that Americans can revise the Constitution as they see fit, and allow an essentially conservative legal document to adapt (even if only in limited ways) to changing political, economic, and cultural realities.  Many progressive understandably attack the amendment process for being too rigid and resistant to change, as it requires two-thirds of national legislators and three quarters of state legislatures to pass a new amendment.  Such a supermajority process has assisted repressive sexist forces in prohibiting the passage of an Equal Rights Amendment for more than three decades.

 

The conservative-libertarian fixation on the Founding Fathers’ “original intent” is fundamentally hypocritical and self serving.  One cannot simply cherry pick what parts of the FF’s values are worth promoting (as libertarians do by supporting abolition but opposing desegregation), while arguing that the legal system should “stay true” to the FF’s original intent.  If one acknowledges that the FF’s bigotry is indefensible, then every other part of the Constitution they created also becomes open to debate and dispute, as should be the case in a democracy.  Tellingly, Rand Paul publicly proclaims the United States is a Republic, and reminds Americans that their country is not, and should not be a democracy.

 

The very existence of the Constitution’s “Elastic Clause” demonstrates that the document is open change across different political epochs.  Also known as the “Necessary and Proper” Clause, the Elastic Clause provides Congress with the power “to make all laws which shall be necessary and proper for the carrying into Execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”  It was first used in the McCulloch v. Maryland (1819) ruling, in which the Supreme Court ruled that the federal government could create and maintain a national banking system under the banner of the Necessary and Proper Clause – even though this power was not explicitly laid out in the Constitution. 

 

What’s “necessary and proper” for the effective functioning of the national government is inherently political, contrary to conservative claims that initiatives such as health care reform are objectively “unconstitutional.”  The Founding Fathers had no more to say about the Constitutionality of universal health care and the regulation of British Petroleum than they did about the merits of net neutrality and the Civil Rights Act.  If anything, libertarian interpretations of regulation of business run the opposite direction of the views laid out by many of the Founding Fathers.  Thomas Jefferson and James Madison opposed the existence of corporate capitalism altogether – particularly those corporations that were unconstrained by government regulation and dedicated to serving private profit. 

 

Notions of Constitutionality change radically based upon the ethics, values, and standards of the time in which people live.  What behaviors are deemed “unconstitutional” are dependent upon social and historical context.  We shouldn’t forget that prohibition of child labor was once considered an illegal and unconstitutional infringement upon the “right” of children to engage in contracts in the private economy.

 

Adherents to conservative and libertarian politics are notorious for supporting some aspects of “big government” while opposing others.  For example, Rand Paul opposes the Civil Rights Act as it applies to the private economy, opposes health care reform, favors restricting access to Social Security for those under 70, and opposes the existence of the Department of Education altogether.  On the other hand, he supports government intrusion in outlawing all forms of abortion, and supports Medicare at is, no doubt because he benefits from monetary subsidies from the program as a result of his occupation as an ophthalmologist.  It’s difficult to take such flip-flopping among a leading libertarian figure seriously, especially when that individual claims to support equal rights while giving his acceptance speech in a “members only” private country club, historically the hallmark of white elitism and racism.  Conservative opposition to government intervention in favor of equal rights is no “historical artifact” contrary to the claims of Paul and his defenders in the press.  Paul’s stance on Civil Rights is representative of his (and most conservatives) larger opposition to any sort of collective action on the part of government that’s pursued in promotion of the public good.  We should keep this reality in mind when we return to the polls this November to vote in the Congressional midterm elections.

 

 

 

Anthony DiMaggio taught U.S. and Global Politics at Illinois State University prior to becoming a casualty of this year’s Illinois budget cuts.  He is now an independent researcher and the author of When Media Goes to War (Monthly Review Press, 2010) and Mass Media, Mass Propaganda (Lexington Books, 2008).  He can be reached at: [email protected]

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