That’s Rich

“It’s now crystal clear what the Tea Party stands for” says Frank Rich midway through a column that makes it crystal clear what Frank Rich stands for, and it isn’t pretty.

Whatever you may think about the 1964 Civil Rights Act as a whole, it indisputably narrows property rights by allowing politicians to dictate the policies of private businesses. Not only is it perfectly reasonable to find that at least a little disturbing, it’s perfectly unreasonable not to find it a little disturbing—even if your ultimate judgment is that it’s a necessary means to a desirable end. Even avid supporters of the Patriot Act ought to acknowledge that it raises legitimate concerns about privacy, even avid supporters of capital punishment ought to acknowledge that it raises legitimate concerns about false convictions, and even avid supporters of the Civil Rights Act ought to acknowledge that it raises legitimate concerns about property rights.

Frank Rich, who equates Rand Paul’s expression of those concerns with nostalgia for the Confederacy, thereby makes himself as scurrilous as those who equate reservations about the Patriot Act with being “on the side of the terrorists”. The “gotcha” game is bad enough when a single thoughtless remark becomes the pretext for dismissing an entire movement. Here the pretext is a single thoughtful remark.

If we are to discredit everyone who is capable of subtler thought than Frank Rich, then there is no hope for the level of public discourse.


31 Responses to “That’s Rich”

  1. 1 1 AC

    For the NY Times set, the concept of being against government power when there are all these well-intentioned people in charge just doesn’t compute. Instead, the brain just pops out “racist” or maybe “hating the poor”

  2. 2 2 Harold

    “Asked by Ms. Maddow if a private business had the right to refuse to serve black people, Mr. Paul replied, “Yes.” ”

    Whilst it is possible the argue from an academic perpective that constraints on private business must be a bad thing, it seems almost inconceivable that a politician could answer the above in todays world. You, as an academic, can just about get away with putting these arguments forward for discussion. Given the history of discrimination, the legacy of which we are living with today, any politician that promotes them in my mind deserves all the flack they get and more.

    The fact that it is a thoughtful remark makes it much, much worse. it is easy for someone to make a slip of the tongue, but to think it through and come to this conclusion shows where your opinions truly lie.

    It is wrong because anyone with a modicum of observational ability can see that discrimination is real and powerful. It hides behind justifications, but left unchecked, it will rise again, as it does all over the world.

    By saying what he said, he is making clear that he puts the “freedom” to be racist above the “right” to be treated equally. To my mind, anyone in a position of power who says this is dangerous, and should be strongly resisted. He is quite entitled to this opinion, and the more he expresses it the better, but he must not be allowed to put it into action.

    He is opposed to banning racism in private places. He is in favour of reducing public and making it private (small Government). In his ideal world racism would be allowed in as many places as possible

    Any economic model that includes race must cope with irrational behaviour. If it does not, then it is next to worthless. I think he has allowed adherance to an abstract theory outweigh what happens in the real world. I do not know if he is racist, he could very easily hold these opinions and not be a jot racist. I do know that those who are racist (and there are plenty) will cheer and applaud his conclusions.

  3. 3 3 Ken B

    I propose a contest. Count the distortions and non-sequiturs in this from Harold:
    “He is opposed to banning racism in private places. He is in favour of reducing public and making it private (small Government). In his ideal world racism would be allowed in as many places as possible.”
    Let’s start with this: racism and discrimination are different.

  4. 4 4 Harold

    Ken B: In your quote I don’t mention “discrimination”. Your point presumably is that he does not wish to allow racism, but discrimination. Would it make any difference if I were to say “discrimination on the basis of race”? I see no reason why you would refuse to serve black people other than racism. Can you have this sort of discrimination without racism?

  5. 5 5 Jonathan Pryor

    While it may be thoughtful to believe that regulating only the public sphere and not the private sphere will work, it has one major flaw: enforcement.

    Suppose the law were written as Paul proposes: private businesses could have a “no blacks allowed” policy.

    OK, fine.

    Question: what happens when a black person then enters the private business? How is the “no blacks allowed” policy enforced?

    There are really only two ways to go here:

    1. Business calls police.

    1.a: Police remove black person from business. As police are part of the public government, you now have government enforcement of bigotry, something Paul explicitly said he didn’t want. Oops.


    1.b: Police show up, and don’t do anything. Thus, the private business rule has basically no meaning. Sure, they might not serve the black person, but he’s still taking up room in the restaurant, providing a “denial of service” attack via sit-in. Oops.

    2. Private business enforces the rules.
    2.a: By forcibly removing the black individual. Use of force likely opens the business up to a costly lawsuit. Oops.


    2.b: The business does nothing. Basically the same as (1.b).

    The fundamental problem is enforcement. The workaround is to keep people you want out from entering the business in the first place, which CAN be done, e.g. with private golf clubs, many of which are still reported to be white-only (or were as of 10 years ago, when I recall reading about such places in newspapers). If the “undesirables” can’t enter, then the police aren’t involved, nor is forcible removal and subsequent lawsuits.

    Again, notice also that article II, as per Rachel Maddow’s follow-up at (skip to 5:12 for the Article II excerpt), only covers businesses that are open to the public: “All persons shall be entitled to the full…services…of any place of public accommodation…”

    If there’s no public accommodation, article II doesn’t cover it.

    It’s all about enforcement.

  6. 6 6 Josh

    I like the way Landsburg puts this and agree that some –even overall good– policies can have negative aspects to them that may even make one question whether the policy is actually a good one. Some policies live in a gray area of goodness and badness. Steven Landsburg has not stated (at least above) whether he thinks the Civil Rights Act was a good thing or bad thing overall. I will venture to state that in context it was a good thing, even if in a vacuum it looks bad. I realize Steven will probably be able to find fault in my logic (and I don’t deny there is fault) but I will still try to make this as simple as possible: if your family’s ancestors were taken from their homeland across a huge ocean and forced to work as slaves against their will and later could not vote or were only counted as 1/8 or 3/4 (I forget which) a person and would sometimes be killed for even looking at a white woman and basically were just generally hated for the color of their skin, I think in all fairness going a little bit in the other direction…that is, forcing the white man to give up some property rights when all along they had stolen it from the black man …. seems fair to me as a white person. I realize it’s more complicated than that, but living in the real world it seems to me like it was a good start. I guess Landsburg’s point wasn’t that these facts aren’t true, but my point is that when you bring up the point of property rights remember that blacks’ property rights in the US were trampled on for hundreds of years. Now feel free to tear my argument apart if you wish.

  7. 7 7 Jonathan Pryor

    In reply to my previous comment about enforcement, there is one potential “solution.”

    Some literature I’ve come across [0] suggests that the government shouldn’t have a “monopoly” on the use of force, ergo there shouldn’t be “just one” police department.

    Given such a system, the business’ that wanted to keep undesirables out could hire a “private police force” to keep the undesirables out, providing a way for (1.a) to “work.”

    Of course, this could possibly result in lawsuit against the private police force from the undesirables; I’m not entirely sure how you have a government non-monopoly on force while still maintaining a monopoly on the Justice system (courts). Further implying that you don’t, you’d instead have a plethora of court/justice systems…which just makes my brain hurt.

    I fail to see how this would actually Work in actual practice, if you had multiple overlapping police/court/justice/etc. systems within the same area (as opposed to different systems in different, non-overlapping areas, as is the case today with e.g. bordering countries).

    [0] I believe Libertarian, but I could be mistaken, and it’s been years so I forget where I read it.

  8. 8 8 Tony Cohen

    Of course Mr. Paul (et all.) is right. The anti-discrimination legislation IS a loss of property rights.

    I think the problem is most people aren’t comfortable with his values. He believes, if I am understanding the argument, that property rights should trump all. Most people find this argument abhorrent, precisely because of (but not exclusive to) these kinds of costs associated with absolute sacrosanct property rights.

    The reason I think we are witnessing all this attempted obfuscation is that if he came right out and said, ‘Property trumps all…back of the buss sucks, but not as much as the loss of the right of some people to put you there”, then he WOULDN’T WIN.

    I think Mr. Landsburg said it best

    “Not only is it perfectly reasonable to find that at least a little disturbing, it’s perfectly unreasonable not to find it a little disturbing—even if your ultimate judgment is that it’s a necessary means to a desirable end.”

    Mr. Rich is just doing sloppy short-hand, which is YES…WE DO THINK IT IS WORTH THE COST, AND IF YOU DON’T, YOU ARE ON THE FRINGE OF AMERICAN DISCOURSE….which is fine, and not a crime…it just isn’t what ‘most’ Americans believe, which can be a tough thing when you are asking for a majority of their support for public office

  9. 9 9 Dan

    Your right on the money! Any reasonable person would have to acknowledge both sides of a whole array of issues, but in campaigning this rarely happens, because even starting a sentience with “While Rand Paul brings up a legitimate concern about property rights…” will get you into trouble in the evening sound-clip media.

    This kind of stuff infuriates me and I wish I could hold this against Rich, but I can’t for 2 reasons: It is par for the course, most politicians do it and it is actually a good strategy as mud-flinging is a time-tested way of moving the vote in your favor. There is just no room for depth in the modern political debate, which is sad. That being said I give a lot of credit to those politicians that can manage to avoid this game, but they are few and far between and are rarely in a position where they can win a public seat.

  10. 10 10 Tony Cohen

    To Dan:

    I am not sure ‘legitimate concern’ is the right word here. I think the reason so many people (myself included) find Mr. Paul unattractive as a candidate is that they have thought about the issue (not so explicitly or in these terms) and have basically decided….’’s a cost but I’m cool with it’.

    Mr. Paul isn’t cool with it, so he is making people sit up and take notice. To my ears, as someone with a Masters in Applied Linguistics’, ‘legitimate concern’ implies a reasonable reason to undo/reverse a previous decision…for most people the property right cost does make it to this level of legitimate…

  11. 11 11 Neil

    Politicians were already dictating what businesses could do. The Jim Crow laws which the Civil Rights Act voided prevented businesses from offering integrated services and mandated separate “but equal” facilities. The idea that the Civil Rights Act was some sort of unprecedented infringement on property rights is nonsense.

  12. 12 12 Michael

    I am going to approach this from a slightly different angle. One of the problems with a private business refusing service because of race is that people probably wouldn’t know about it until they are in the front door. There is a form of information asymmetry, in that the business owner knows who is being excluded, but the would-be patron could very well waste time and effort coming to the business, only to be turned away. If I see “Joe’s Diner” while I’m driving on the freeway, I’m going to be very annoyed to stop by for a sandwich, only to find out that I have to leave hungry and drive a couple more miles to the next restaurant. The business owner is imposing a cost on me because he withheld information.

    As a thought experiment, if businesses who wished to discriminate were forced to clearly say “WE ONLY SERVE X” on every advertisement, yellow pages entry, and at every business entrance — say, in a font as big and bold as the name of the place itself — so that people wouldn’t waste time or effort visiting them in the first place, they would find opportunities for expansion (or even survival) very limited. Racists (and those merely indifferent) who wished to patronize such an establishment would have to worry that one of their neighbors might see them entering the place or using their services, which would in many cases be more embarrassing than having your boss see you entering an adult toy and novelty store. In addition, they would be a natural (and entertaining) target for protesters. Sunlight might very well be the best disinfectant.

    On a somewhat related note, it might be that forced inclusion of the CRA was an important way of overcoming years of forced exclusion during the Jim Crow years. The number of existing businesses who would deliberately change back to their exclusionary ways after years of inclusion would probably be very small, and re-examining such decisions periodically (if only to say “it’s still important to keep the laws in place”) isn’t necessarily a bad idea.

  13. 13 13 Benkyou Burito

    The current bread of libertarians are really nothing more than market-anarchists. But they are self delusional or at least outwardly dishonest.

    One of the tenets of libertarian thought I hear often is that rights are the reciprocal of responsibility. A person has rights proportionate to his responsibility.

    Libertarians say that society should give near absolute rights to individuals and demand that they be responsible for themselves. As such, since a lunch counter doesn’t get any help from the government they should be able to refuse service to blacks (or whomever they wish). In Rand or Stossel’s world this makes sense.

    But it is pure ignorance. That business benefits from the enforcement of its property rights. From the transportation infrastructure that brings goods and customers to it. From the ease of commerce that comes from a well managed currency. From the availability of investment that comes from a well managed monetary system (even if well managed is hands-off 99% of the time). From the growing affluence of a customer base rewarded by strong and constant economic growth.

    So unless a business owner wants to do away with all of those things (either by voting in a new system of government or by violent revolt) then it is reasonable to expect them to comply with marginal impositions intended to further those very aims. The economy, whose growth benefits the business owner, benefits by having more people buying, selling, and working. Even if those people are black or women or gay.

    The business owner who doesn’t like it is entitled to go somewhere without out a strong currency, economic growth, affluent customers, and laws telling them to hire and sell to blacks.

  14. 14 14 Benkyou Burito

    Just an unrelated after-blurb

    The good Prof. stated in his book “More sex is safer sex” that the reason the cost of living is so high in metropolitan areas (NYV, LA, etc.) is that they offer more to those working and living there. Not everyone in NYC will realize every value but the value each person there does receive is equal or greater than the cost. If a person did not think they were getting their money’s worth they would move somewhere else.

    The cost of doing business in America is that you have to treat people equally based on a few protected criteria (or work really hard to appear to do so).

    This cost represents a value to the American people that not every one of us will realize (some don’t like hiring brown people or people with girl-parts or people who eat kosher). If the cost of doing business in this country is greater than the benefit for these people then they should go somewhere else. This would have a multiplier effect on the value reaped by the rest of us.

  15. 15 15 Ken

    The false assumption made by chumps everywhere:
    “but left unchecked, it will rise again”

    That’s quite a bold statement, Harold. I wonder if you can back this up with ANY data! Not everyone is a racist like you just dying to legally discriminate against everyone and everything! Oh, you’re not a racist? Did I just make a HUGE assumption on what an evil person you are?

    I keep on hearing people say that Rand Paul is “fine” with racism. He is not. Like many things, he thinks that some reprehensible things should be kept legal. In this vein, racism is like adultery: repugnant and to be condemned, yet should remain legal.

    If a private business refuses to do business with blacks it will be thrown to the wolves. This will be front page news and people will stop doing business with it and it will go belly up or be part of the fringe supremacist culture. Name one business that has discriminate against blacks that hasn’t suffered a HUGE blowback. As I recall some black people in the 90′s didn’t get seated as fast as they think they should have and made national headlines by calling Denny’s racist. Do you honestly think the Civil Rights Act had anything to do with this or do you think it had to do with American culture recognizing the fact that racism is a bad thing?

  16. 16 16 Harold

    Ken: I should have said there is a risk it will rise again. Maybe it would not. Racism is rife a prevalent all over the world. I do not think “enlightened” western countries to be exempt, or grown out of it. I do not want to take that risk.

    Those above have got it right – it is never wrong to point out the costs and benefits af any action. It is in my opinion wrong because someone has considered the cost / benefit and found that the cost ( govt. dictating in a minor way somthing which according to Ken they would do anyway) is greater than the benefit (ensure that people are treated equally). A cursory view of history and a quick glance around the world shows that that cost can be vast. I disagree vehemently with someone who comes to that conclusion.

    They may think the law unecessary, as racist discrimination is such a small problem. If so I think they are deluded. Racism is a continuing, huge problem. Or they may be racist. Or they may just value freedom from Govt. interference so highly that as stated above, it trumps everything. In this case they are a bit one-dimensional and limited in outlook.

    Paraphrasing Steve “it is unreasonable not to find [the interference] a little disturbing.” My view is that it is unreasonable not to find the racist treatment of minorities very disturbing. In my mind the balance in clear.

  17. 17 17 TjD

    Your view on the impact is too broad.

    “Whatever you may think about the 1964 Civil Rights Act as a whole, it indisputably narrows property rights by allowing politicians to dictate the policies of private businesses _providing public accommodation._”

    I fixed it for you.


  18. 18 18 Patrick

    OK, lets take this logic to the extreme. I (a straight male), don’t like men (except for company), so when one tries to ‘have his way’, should the non-homophobic police just say “well, you shouldn’t be so discriminatory”. And seriously, if you answer yes, I wonder…

    Also, we (in the UK) have a British National Party, who are basically racist. But if you say “businesses must serve blacks”, what fundamentally makes you different from a racist say “businesses cannot serve blacks”? You both want to use the State to achieve your preference throuhg the medium of violence, and while you could argue “but it’s better”. By what standard? Yes, fewer poeple accept racism, but a while ago they said it was fine. Also, thou shalt not’s are better than thou shalt’s, since you still have options.

  19. 19 19 Benkyou Burito

    Ken–you say “If a private business refuses to do business with blacks it will be thrown to the wolves. ”

    But this dismisses new trade theory. Sometimes a particular market can only support one firm. In that case the first business to move in winds up with market dominance and ultimately enough political influence to artificially raise barriers to market entry.

    Consider the Railroad barons. If people didn’t like the rail fares could they just go somewhere else? Could another rail company just come in and put there own tracks in?

    For a town of 3000 people it is entirely likely that there is no viable competition for a restaurant that refuses to serve blacks. There are plenty of cases where there is not a free-market solution to discrimination.

  20. 20 20 Josh

    Patrick said,

    “Also, we (in the UK) have a British National Party, who are basically racist. But if you say “businesses must serve blacks”, what fundamentally makes you different from a racist say “businesses cannot serve blacks?”

    I understand your point and it resonates with me on some level, but as I said in an earlier post the reason I back the Civil Rights Law is because of broad context. Most blacks who were alive in the 60s were in the US because their ancestors were brought their as slaves. THeir property rights were stolen. They were treated as 1/8 of a person. And they were often spefically targeted for violence etc., due to their race. Therefore, in my view, since we seem to have this issue of taking property rights away from blacks in this country, we decided to take some away from the majority whites (and perhaps even blacks who only wanted to serve blacks but the majority property owners were whites I’m sure) and say you must now lessen your property rights because your group has taken it away from another group for so long. The context matters here.

  21. 21 21 Harold

    Patrick: You don’t say “businesses must serve blacks”, you say “businesses must serve everybody”.
    If someone “tries to have their way with you”, that sounds like assault, gay or straight. If someone you don’t want to have a relationship with asks, then you may decline, male or female.

    Ultimately you are right, why do we say it is better? It comes down down to a basic morality. At some point you have to just say “because it is right”.

  22. 22 22 Steve Landsburg

    Harold: It comes down down to a basic morality. At some point you have to just say “because it is right”. This leaves open the question of whether we’d prefer to live in a world where we have to try to convince each other of what is right or a world in which authorities can make these decisions and impose them on the rest of us.

  23. 23 23 Benkyou Burito

    Steven—This issue doesn’t require morality at all. Any more than demanding a business in NYC foot some of the bill for the subway system.

    Anti-discrimination laws increase the productive capacity of a nation. Much like a well implemented highway system and power-grid. There is no way to contain the external benefits of those things from businesses that benefit from them so we charge them for it.

    A country where everyone may buy, sell, and work regardless of race is a benefit, even to businesses that would prefer to not hire or sell or buy from brown people. We could charge them a bigot tax (I would favor that)but that would cost more than the status quo and the tax would have to include the cost of administration.

    Morality is purely a correlated benefit of the civil-rights laws.

  24. 24 24 Harold

    Most people think it right that we treat eachother with politeness, but we do not have a law requiring politeness. We try to convince eachother of what is right here. Most of us agree that we should not beat people up for pleasure (even on private property), but here we are happy to have a law of assault about it. What makes racist discrimination fall on the “law” side, and politeness fall on the “persuasion” side? If anyone thinks it is more like not getting a “thankyou” than getting beaten up, I think they should get out more. It is an assault on the very core of your being. I think it is worthy of a law.

    I am sure my analogy can be picked apart, but basically, you have to draw the line somewhere, and to my mind this easily falls on the “law” side.

  25. 25 25 Benkyou Burito

    Harold– I’m with you on this one.

    Racial discrimination is an assault on the ability of a person to engage in commerce and find gainful employment. Every bit as much as knee-capping a man with a bat.

    Now if a person wishes to conduct a private sale, and chooses to consider only Puerto-Ricans as viable customers, that is a moral issue and I’m comfortable with the state keeping its nose out.

    But when you go to the city to get an occupancy permit. Something you must have to run a store or restaurant, it does not say “Occupancy: 187 WHITE Persons”.

    When you get an Employer Identification Number, something you need to legally employ people, it authorizes you to employ people, not any particular subset.

    If you want the benefits of the worlds greatest consumer market, then you don’t get to pick and choose.

    If you want to depart from the prescriptions of our commercial structure then you must depart from the value of it as well. If a bigot doesn’t want to do business with all legally recognized people then he should not get the value of official licenses, permits, inspections, etc, that are supported by those people.

    Let the hillbilly do business out of the back of his car if he likes.

  26. 26 26 beth

    On what basis is the presumption of privacy founded other than those guarantees in the 4th Amendment to the Constitution?

  27. 27 27 Mason Smith

    There’s a fundamental difference between the CRA ’64 and the other cases you mention.

    No one argues that the direct outcome of the CRA ’64 is bad. Rand Paul (and most libertarians?) may argue that a loss of property rights is bad in the abstract, but no one argues that we as a society are worse off because businesses are racially integrated. (I would go one step further to suggest that most people would distance themselves from anyone who would make that argument).

    Opponents of the Patriot Act and capital punishment, however, take issue with the direct results of those actions. The detractors of these cases aren’t arguing in the abstract; they are firmly grounded in direct, concrete consequences.

    Even if there is a “principled” argument to be made against Title II of CRA ’64, the fact is that people don’t live in a principled world. Purely theoretical oppositions just don’t make as strong a case as the concrete oppositions posed against the Patriot Act and capital punishment.

  28. 28 28 Steve Landsburg

    Mason: I am not sure I get the distinction you’re making. The direct consequences of the Patriot Act, at least according to its supporters, are that we are made more secure at the expense of sacrificing some liberty. The direct consequences of capital punishment is that we deter murderers at the expense of occasionally executing an innocent person by mistake. The direct consequences of CRA are that we achieve more racial integration at the expense of property rights. Why is one of these more abstract or less direct than another?

  29. 29 29 Neil


    I guess it is because liberty and not executing innocent persons are clearly ends, desirable in and of themselves, whereas “property rights” are not an end, but a means to an end. How does the CWA compromise the ends or purposes that property rights are meant to serve?

  30. 30 30 Steve Landsburg

    Neil: I don’t understand your distinction between “liberty” on the one hand and “property rights” on the other.

  31. 31 31 Neil

    Fair question.

    Liberty is the freedom of human beings to pursue their own happiness, coupled with a responsibility for their actions. (The second part of often forgotten.) The ownership of property and the rights that such ownership entail are a means, but certainly not the only one, of ensuring liberty, and some limitations on property rights (which have always been there) are not inconsistent with acheiving that goal.

    I see property rights as an institution of the state (a good one), and there are limits on them, like eminent domain. Without that, your property rights consist of what you can keep with your Smith and Wesson.

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