Chuck Muth: How Rand Paul should have answered the lunch counter question

The question was simple enough: Should private businesses have the right to refuse service to someone because they're black?

That was the essence of the question MSNBC host Rachel Maddow put to Rand Paul after his GOP primary victory in the Kentucky U.S. Senate race a couple weeks ago. And Paul's answer - or more accurately, non-answer - has been the source of much intellectual and political discussion ever since.

The question isn't whether or not government discrimination should be outlawed. It should have been ... and it was. But the question of outlawing discrimination in private businesses is and was a much thornier constitutional question.

To the extent that the Civil Rights Act of 1964 put an end to Jim Crow government-mandated racial discrimination, it was uncontroversial and universally supported - including by Sen. Barry Goldwater. However, it was the issue of the government's constitutional authority to ban discrimination in private businesses that resulted in Sen. Goldwater's "No" vote.

"I wish to make myself perfectly clear," Sen. Goldwater stated on the floor of the Senate on June 18, 1964. "The two portions of this bill to which I have constantly and consistently voiced objections ... are those which would embark the federal government on a regulatory course of action with regard to private enterprise in the area of so-called 'public accommodations' and in the area of employment.

"I find no constitutional basis for the exercise of federal regulatory authority in either of these areas; and I believe the attempted usurpation of such power to be a grave threat to the very essence of our basic system of government, namely, that of a constitutional republic in which 50 sovereign states have reserved to themselves and to the people those powers not specifically granted to the federal government."

Goldwater concluded, "My basic objection to this measure is, therefore, constitutional."

Had Rand Paul been better prepared and informed as to Sen. Goldwater's objection to the Civil Rights Act, he could have easily answered the question by saying something along these lines:

"Rachel, in part because of the Civil Rights Act, we now have an intrusive federal government which not only tells private employers who they can and cannot hire and for what reasons, but how much they must pay their workers as well as how much family time off a worker must be given. That said, the Civil Rights Act is the settled law of the land and I will support it while reserving the right to continue fighting the federal government's unconstitutional efforts to force every American in this country to buy a health insurance policy."

Next question.

• Chuck Muth is president of Citizen Outreach, a non-profit public policy grassroots advocacy organization.