Rand Paul is a physician who recently won a primary to become the Republican Senate candidate in the November election to replace Republican Jim Bunning, who is not running for reelection. Rand Paul is the son of Ron Paul, also a physician, who for many years has represented the 14th Congressional District of Texas. Like his father, Rand Paul (henceforth referred to simply as Paul) is a libertarian. Like most libertarians, Paul advocates a minimal role for government and harbors doubts about the value of such mainstays as Social Security, Medicare, the Department of Education, and the Federal Reserve. But unlike his father, Paul has spent very little time talking to the press on the record—far less than the typical successful Senate primary candidate. In one of his first post-primary press outings, a TV interview with liberal MSNBC anchor Rachel Maddow, Paul expressed doubts about the wisdom of an important element of the landmark Civil Rights Act of 1964, namely, the provision that ended racial discrimination in public accommodations such as restaurants.

Press reports indicate that Paul’s basic argument was that we should beware of giving government too strong a role in running private businesses. This is true even when we wish to prevent racial discrimination—a goal for which Paul quickly announced fervent support. The media reaction was quick and somewhat vicious. Much of it argued that Paul had stumbled into an area in which the positive contribution of government, especially the all-powerful federal government, was simply beyond doubt and without a rational alternative. In a strongly worded editorial, for example, the New York Times declared that:

As a longtime libertarian, he espouses the view that personal freedom should supersede all government intervention. . . . The freedom of a few people to discriminate meant generations of less freedom for large groups of others. It was only government power that ended slavery and abolished Jim Crow, neither of which would have been eliminated by a purely free market.

The suggestion is that Paul is grossly ignorant of the simple fact that government action was necessary to end the notorious “Jim Crow” system, which from the late 19th century through more than half of the 20th century had suppressed blacks in the South by maintaining racial segregation in public institutions such as schools and hospitals, as well as in private facilities such as restaurants. Paul himself quickly stated that he supported the 1964 Civil Rights Act and would have voted for it at the time.

‘Jim Crow laws’ were indeed laws, i.e., requirements that persons and businesses and government agencies must practice racial discrimination or face civil or criminal penalties.

The Times editorial and other media pronouncements have perpetuated a drastic misreading of history and of government’s role in ending racial discrimination in this nation. This history is far more nuanced than is widely assumed. At the center of the Jim Crow system lay the “Jim Crow laws.” They were indeed laws, i.e., requirements that persons and businesses and government agencies must practice racial discrimination or face civil or criminal penalties. In other words, government had bolstered discrimination instead of suppressing it. For example, the famous 1896 Supreme Court decision in Plessy v. Ferguson, which endorsed “separate but equal” treatment in railroad travel and eventually in other spheres such as public education, was about whether an 1890 state law in Louisiana requiring segregation was constitutional. The court said it was.

The Jim Crow system did not start in the South. It first arose in the North (although the term dates only from the early 20th century) as a way to deal with free blacks, including ex-slaves. After the Civil War ended slavery in the South, some politicians rallied poor whites and newly freed blacks in support of economic populism, while others sought different forms of accommodation that stopped well short of systematic, state-enforced racial separation. It was only in the last two decades or so of the 19th century—especially in the 1890s—that the Southern states enacted laws to force a level of segregation that had not arisen spontaneously, creating the rigid legal apparatus that some people still remember from the first half of the 20th century. Far from forming the vanguard of segregation, businesses tended to lag, with the railroads particularly notable for their persistence in maintaining a substantial degree of integration until forced by law to halt their practices.

The Jim Crow system did not start in the South. It first arose in the North.

Thus by the 20th century, the Jim Crow system was vastly diminished in the North but had become thoroughly embedded in the South—through government action—despite the incentives of many business owners to reap the economies of scale and consequent profit from treating all customers alike. The central elements of this story plus much more were described in The Strange Career of Jim Crow, published in 1955 by the celebrated historian C. Vann Woodward. Later described by Martin Luther King as “the historical bible of the Civil Rights movement,” The Strange Career of Jim Crow had an extraordinary intellectual impact on the history profession (as I discovered as a graduate student in American history in the late 1960s). It should give pause to anyone who is ready to assume that government power is bound to do good when it reins in business for social purposes, but I fear that Vann Woodward’s masterpiece has exercised too little influence in recent years. (Clay Risen provided a good retrospective assessment of Strange Career.)

One might ask why it was that in 1964, a century after slavery and the Civil War had ended, there was still pervasive discrimination by fiat in most of the South.

Thus Paul’s instinctive doubts about government as the solution to most if not all racial problems are rooted in American history even if he did not cite that history in recent interviews. But one might ask why it was that in 1964, a century after slavery and the Civil War had ended, there was still pervasive discrimination by fiat in most of the South. I suspect the answer lies not in the minds of restaurant owners and their customers, but in voting rights.

The end of the Civil War and the overwhelming Republican victory in the 1866 election ushered in the Reconstruction Era, in which southern blacks gained the vote with the support of federal martial law, which kept white intimidation of blacks in check. But Reconstruction began to lose force after the 1868 election, and martial law was gradually relaxed in many states. In the 1876 presidential election, Republican Rutherford B. Hayes won by a single electoral vote, but the popular vote in three southern states was bitterly disputed. A commission created by Congress to adjudicate the disputed election eventually awarded the decisive electoral votes to Hayes. But this result—the “Compromise of 1877”—entailed a political deal between northern Republicans and southern Democrats whereby Hayes was allowed to become president in exchange for pulling the remaining federal troops from the old confederacy. As a result, the disenfranchisement of southern black voters through intimidation and discriminatory legislation was enabled to continue apace and was essentially complete by the 1890s. This left blacks powerless to head off the Jim Crow system of pervasive mandated segregation.

The historic role and power of the 1965 Voting Rights Act was to affirm and enforce the right to vote for blacks in the face of entrenched bureaucratic resistance and the constant threat of violence. Proving counter-factuals is impossible, of course, but it seems safe to say that government-enforced racial discrimination in the South would not have lasted long after the 1965 act took effect. After all, segregation by mandate had largely ceased to exist in the North, where black voting rights had long been respected to at least a tolerable degree—and blacks comprised a far smaller proportion of the electorate in the North than they would in the South after 1965. Black enfranchisement, a principle on which all libertarians would surely agree, arguably trumped narrower measures such as the public accommodations provision of the 1964 Civil Rights Act.

One particular political party should recall, painful as it is, that when people spoke for decades of the ‘Solid South,’ they referred to a reality in which Democratic politicians could be counted on to keep blacks from voting in the states of the former Confederacy.

The Rand Paul brouhaha over governments and racism should subside quickly if anyone pays attention to the very mixed history of the relationship between government and racism. But four useful things should come of this episode. First, anyone who wants to give government full credit for ending racial discrimination—as Paul’s critics seem ready to do—should recognize that the first task was to undo government support for discrimination. Second, the assumption that business tends to be hostile to racial equality should be tossed into the historical dustbin. We should remember that Abraham Lincoln was nearly as notable for his pro-business rhetoric and politics (and legal advocacy) as for the skill with which he grasped the opportunity to end slavery. Moreover, private businesses often have incentives to act as a spontaneous antidote to racism. Third, one particular political party should recall, painful as it is, that when people spoke for decades of the “Solid South,” they referred to a reality in which Democratic politicians could be counted on to keep blacks from voting in the states of the former Confederacy.

Finally, a word for those who today proudly call themselves “progressives,” hearkening back to the Progressive Era of the late 19th and early 20th centuries—of which “Southern Progressives” were an essential part. These partisans might usefully consult Vann Woodward’s delineation of the central role played by those same progressives—intent upon rallying poorer whites to support their economic agenda—who applied newfound government power to the task of constructing the very same Jim Crow system that had to be dismantled in 1964. Indeed, it was President Woodrow Wilson, the archetype Progressive and the first Southern president since before the Civil War, who tried to reintroduce segregation in the federal workplace after it had been eliminated by earlier Republican administrations.

John E. Calfee is a resident scholar at the American Enterprise Institute.

FURTHER READING: Calfee recently questioned “How Much Transparency Do We Want in Healthcare Pricing?” discussed “Something Old, Something New: Biotech’s Enormous Potential,” and explained “What Do Vitamins and Fish Oil Tell Us about Drug Research?” He and Elizabeth DuPré explored “How to Think about Patenting Genes.” He details “Pricing Out Private Insurance” by implementing ObamaCare, and counters “Obama’s Misleading Assault on the Insurance Industry.”

Image by Rob Green/Bergman Group.