Ken Mack, Harvard Law School, has an op-ed,
Rethinking the Rand Paul Controversy, on HNN. He writes:
Since Republican Senate nominee Rand Paul questioned whether, on constitutional grounds, he would have voted for Title II of the Civil Rights Act of 1964, he has been subjected to a barrage of historically-minded criticism. Paul's critics have expressed doubts about the nominee's professed endorsement of the goal of Title II, which was to guaranty equal access to many public accommodations without regard to race, color, religion or national origin. To them, his claim (which he later tried to retract) that he was simply questioning Title II as a means of accomplishing this result, while endorsing anti-discrimination as an end, rings hollow. Indeed, it seems to echo statements made during the 1960s by people who opposed any form of racial equality, and by those who sought to give them political and intellectual cover. Much of the criticism levied at Paul, however, downplays the history that led to the enactment of Title II, which raised serious questions about the constitutionality of a broad federal public accommodations law, even in the minds of racial liberals.
Title II was preceded by the sit-in movement of the early 1960s, which caused many Americans of egalitarian racial beliefs to sympathize with the point of view that got Rand Paul into so much trouble. During the sit-ins, young people entered restaurants and other public accommodations, and refused to leave when they were denied service, causing the proprietors to invoke apparently race-neutral trespass laws (rather than segregation statutes) to eject them. The sit-in protesters claimed that to refuse them service in an institution otherw
ise open to the public was a denial of their basic humanity as American citizens. The proprietors took the position that Paul seemed to endorse, that their basic rights as property owners allowed them to refuse service to anyone they pleased. Which side was correct? Predictably, white racists sympathized with the proprietors, but others did as well.
The justices of the Supreme Court, the majority of whom sympathized with the objectives of the sit-ins, struggled for years to avoid ruling that the Fourteenth Amendment protected the protesters. This was true even though the justices had had little trouble ordering the desegregation of many public institutions during the 1950s, and had also extended the non-discrimination mandate to some private entities. The reason was summed up in an opinion by Justice John Marshall Harlan, himself the grandson and namesake of the justice who had dissented from the Court's infamous ruling in Plessy v. Ferguson, and from its invalidation of the first federal public accommodations law. "An individual's right to restrict the use of his property," wrote Justice Harlan, "lies beyond the reach of the Fourteenth Amendment."
When President Kennedy sent his civil rights legislation to Congress in 1963, one question naturally arose: If the Supreme Court had sent strong signals that it was not prepared to extend the Fourteenth Amendment to restaurants, lunch counters and similar establishments, what gave Congress the constitutional power to act? Later Court decisions would clarify this issue, but its solution was not clear to many racially liberal Americans at the time. While many Northern states and cities had public accommodations laws on the books, a federal law in this area proved so controversial that the administration did not even include a provision covering that subject in its initial civil rights proposals. What broke the logjam were the Birmingham demonstrations in the spring of 1963, which finally convinced many whites outside the South that the once controversial claim of the sit-in protesters should take precedence over the claims 
of the proprietors.
After Birmingham, the administration proposed what would later become Title II, but concerns about its constitutionality still shaped the debate in Congress, even among professed liberals. Strong supporters of anti-discrimination favored a broad public accommodations law based on the Fourteenth Amendment. But many of them conceded that such a provision might be unconstitutional, given the signals that the justices were sending about the scope of that amendment. Moderate liberals wanted to ground the bill in Congress's power to regulate interstate commerce, but they believed that such a bill might not cover many businesses that had provoked the sit-in protests-those with a limited connection to the interstate movement of goods and services. Attorney General Robert Kennedy himself cautioned that an overbroad public accommodations bill would make "a private business" into "an instrument of the State." Administration lawyers tiptoed around the question of Title II's constitutionality, finally lodging it in the Commerce Clause.
Thus, it is a mistake to assume that anyone who, for constitutional reasons, would have paused at the prospect of voting for Title II was simply an opponent of racial equality. Defenders of white supremacy often fed into this tendency by offering specious constitutional objections to Title II, and to the statute more generally. Some of these objections have been invoked in the recent debate over Paul's use of history. But it is also true that the strongest advocates of a broad federal public accommodations law tended to downplay any constitutional issues. Indeed, Kennedy and others in the Justice Department worried that this tendency would produce a bill that would eventually be invalidated by the courts. By 1964, many supporters of Title II simply felt that it was the right thing to do, as did most Americans. At that moment, to speculate about the constitutionality of the bill would simply bolster the cause of those who would employ any argument-good or bad-to block it.
If there is a problem with Rand Paul's statement, it is not in what he said but rather the context in which he said it. What he said, or at least implied, is basically correct: that, in 1963 or perhaps even in 1964, a racially egalitarian member of Congress might have had qualms about the constitutionality of a federal public accommodations law. That problem had no easy solution, and liberals realized it at the time. But to make that statement as a candidate for the Senate at a time when those particular constitutional questions have long been settled-as most such questions are-in the court of public opinion, raises suspicions that he is speaking more about the present than the past. This is particularly true given that Paul has been identified with the Tea Party-a political movement that makes constitutional objections to federal legislation a centerpiece of its reason for being. The main questions that Rand Paul's statement raises have more to do with the politics of 2010 than they do with the history of the 1960s.
Photos: Rand Paul; Oklahoma sit-in; Firefighters use hoses on civil rights protesters, Birmingham, 1963.
