While I generally like Andrew’s journalism, I have to point something out as simply incoherent in his defense of Rand Paul’s appearance on Rachel Maddow.

Specifically, I’m referring to his statement “But was the Act in many respects an infringement of freedom? Of course it was.”

Well.  Yes, of course the CRA was an infringement of restaurant and hotel owner’s freedom to discriminate against their customers.  But not passing it would have been an infringement of freedoms too (or more correctly giving license to an ongoing infringement).

Let’s take it away from the ideologically loaded sphere of discrimination for a brief hypothetical.  Let’s say I own a piece of property.  My neighbor has an easement allowing him to walk across it without my permission.  Isn’t that easement an infringement of my freedom to do what I want with my property?  At the same time, were we to legislatively terminate his easement, isn’t that an infringement of his freedom to walk across my property?

Now, as a thought experiment, let’s say that the CRA set of rules barring such discrimination was our baseline.  Essentially, let’s assume we live in the world we live in today.

Let’s consider what would happen if we were to repeal the CRA.

Would it be any less an infringement of freedom to repeal it, infringing on private people’s freedom to choose the restaurant or hotel that they desire to eat in or stay at?  It’s an infringement of freedom to use coercive government force to prevent discriminatory choice by proprietors of institutions.  It’s equally an infringement of freedom to use coercive government force to enforce these discriminatory choices (by way of lending its authority to the choice of a property owner to expel such a customer).

I don’t pretend this is a particularly new insight; it isn’t.  It’s been written about for nearly a hundred years – see Robert Hale’s “Coercion and Distribution in a Supposedly Non-Coercive State” for an example (which was written in response to an early essentially libertarian viewpoint).  But to pretend that the CRA somehow increased the amount of government coercion going on simply ignores the baseline problem.  To make that assertion requires assuming that the infringement on freedoms that the “initial” state of affairs requires in order to operate are not, in fact, infringements.