US News & World Report

By Nicole Hemmer

Last week, Kentucky Sen. Rand Paul wrote a pointed response to the crisis developing in Ferguson, Missouri: “If I had been told to get out of the street as a teenager, there would have been a distinct possibility that I might have smarted off. But, I wouldn’t have expected to be shot.” He went on to criticize the militarization of the police and the racial injustices of the American legal system. As Paul put it, “Anyone who thinks that race does not still, even if inadvertently, skew the application of criminal justice in this country is just not paying close enough attention.”

Coming from a libertarian Republican who is considered a frontrunner for the 2016 nomination, Paul’s comments were much anticipated. For a few days after Michael Brown was killed, libertarian leaders remained fairly quiet, uncertain whether Brown’s death would be a matter of civil rights or civil liberties. It may sound like a small difference, but it’s an important one. When it comes to issues framed in terms of civil rights, libertarians tend to opt out. They led the charge against national ID cards but not voter ID laws, against Transportation Security Administration body scans but not TSA racial profiling.

In Ferguson, libertarian leaders have a chance to change this, to defend not only civil liberties but civil rights. To do so, however, will require rethinking some of their core assumptions about government power.

The crisis in Ferguson meets at the intersection of civil liberties and civil rights. The two terms, though quite similar, point in opposite directions. “Civil liberties” suggests the encroachment of a too-powerful state. “Civil rights,” on the other hand, typically applies to issues of discrimination and inequality that require the federal government to intervene. Libertarians thus harbor suspicions toward the federal government, while civil rights activists look to it for support.

These opposing impulses have historically pitted libertarians against civil rights activists. Barry Goldwater in 1964 declared his opposition to the Civil Rights Act in libertarian terms. While believing racial discrimination was abhorrent, Goldwater insisted the federal government had neither the authority nor the ability to legislate it away.

It is a position many libertarians have clung to in the decades since. Rep. Ron Paul declared his opposition to the Civil Rights Act in 2004, a position his son Rand Paul seemed to defend in a 2010 interview in which he said, among other things, “I think it’s a bad business decision to exclude anybody from your restaurant — but, at the same time, I do believe in private ownership.”

That apparent defense of his father’s position did not go over well, and in May 2013 Paul came out firmly in favor of the 1964 Civil Rights Act, telling Wolf Blitzer, “There was an overriding problem in the south so big that it did require federal intervention” and thus he would have voted for the bill. In making those comments, Paul abandoned what had been libertarian orthodoxy: choosing a philosophical opposition to federal power over the actual protection of individual freedoms.

This tendency to support libertarian means over libertarian ends has been a major problem for the movement, which is why political observers were so keen to hear how libertarians would respond to the crisis in Ferguson. The militarization of the police, so clearly on display in Ferguson, has been an important topic for libertarian thinkers like Radley Balko. But what was happening in Ferguson was also an issue of civil rights, raising questions of racial profiling, residential segregation and economic inequality.

Paul offered a resolution that squared the circle: blaming the federal government for the crisis. “Washington,” he wrote, shifting his gaze from local law enforcement to distant D.C., “has incentivized the militarization of local police precincts by using federal dollars to help municipal governments build what are essentially small armies.”

He’s right: First through the War on Drugs and then the War on Terror, federal initiatives have vested local law enforcement and criminal justice authorities with unprecedented power. As we’ve learned in the past week, cops in Keene, New Hampshire, safeguard the town’s 23,000 citizens with armored personnel carriers and officers in Doraville, Georgia (pop: 8,500) are kitted out with tanks and camouflage.

Prosecutors, meanwhile, have the power to pile on charges so that criminal trials are no longer worth the risk. As of 2009, 97 percent of federal cases and 94 percent of state cases ended in plea bargains. The overwhelming power of the state tilts the scales of justice throughout the legal system, and minorities are often the ones most affected.

Still, it’s hard to imagine a long-term partnership between libertarians and civil rights activists. For the last 150 years, the protection of minority civil rights has required a strong federal state: to end slavery, to protect freedpeople, to dismantle Jim Crow, to safeguard the ballot box. For nearly a century, local law enforcement terrorized black southerners. The federal government was the only level of government that would help (and even it had to be dragged kicking and screaming into the fight). Given a choice between Bull Connor and Bobby Kennedy, is it any wonder black southerners preferred far-off feds to close-at-hand cops?

That history informs the crisis unfolding in Ferguson, where there is little evidence that black residents agree with Paul’s argument that “big government has been at the heart of the problem.” They are, understandably, far more likely to trust Attorney General Eric Holder, who arrives in Ferguson on Wednesday, than officers in the Ferguson Police Department, some of whom in 2009 assaulted a black man in their custody, then charged him with destruction of property for getting blood on their uniforms.

Ferguson, then, presents a challenge as well as an opportunity for libertarians. Yes, they can make tactical alliances with civil rights leaders. But that alliance will be short-lived if libertarians remain rigid in their insistence that a strong government endangers rather than engenders liberty. If libertarians like Paul can embrace a more nuanced understanding of government power, they can advance not only civil liberties, but civil rights as well.

This article was originally published in the US News & World Report