I disagree with Mr. Bartlett in one respect. Much of this is a rationalization for racism, but that fact does not obviate the constitutional issue, which in turn should lead us to question the libertarian ideology more deeply and directly. Modern day libertarians (including those who double as Republicans and come across sometimes as moderates) want nothing less than a return to the status quo antebellum in constitutional terms, and if that means a few minorities suffer discrimination, so be it.
Rand Paul, son of legendary libertarian Congressman Ron Paul, for whom I worked in the 1970s, is now the official Republican nominee for the U.S. Senate from Kentucky. Perhaps unfortunately for him, he did not get a great deal of national press scrutiny during his primary campaign because he was an outsider that many in the national press corps thought could not win. Now that he has, they are making up for lost time. And Rand has accommodated them by repeatedly saying that he would not have voted for the Civil Rights Act of 1964 on libertarian grounds: private businesses should not be forced to serve African Americans if they so choose. Presumably, market pressure will eventually force them to be more accommodating. If it doesn't, then so be it, Rand believes.
Both Rand's supporters and critics point to Senator Barry Goldwater's principled opposition to the Civil Rights Act of 1964. However, according to Rick Perlstein's excellent book, Before the Storm: Barry Goldwater and the Unmaking of the American Consensus, Goldwater's opposition to the Civil Rights Act was based entirely on constitutional concerns. He had been told by both William Rehnquist, then a private attorney in Phoenix and later chief justice of the Supreme Court, and Robert Bork, then a professor of constitutional law at Yale, that it was unconstitutional. Bork even sent him a 75-page brief to that effect.
To be sure, the Rehnquist-Bork position was not a lame rationalization for racism. It was rooted in the fact that the Civil Rights Act of 1964 essentially replicated the Civil Rights Act of 1875, which was enacted by a Republican Congress over strenuous Democratic opposition. However, in 1883 the Supreme Court, then it its most libertarian phase, knocked down the 1875 act as well as many other Republican measures passed during Reconstruction designed to aid African Americans. The Court's philosophy in these cases led logically to Plessy v. Ferguson in 1896, which essentially gave constitutional protection to legal segregation enforced by state and local governments throughout the U.S.
As we know from history, the free market did not lead to a breakdown of segregation. Indeed, it got much worse, not just because it was enforced by law but because it was mandated by self-reinforcing societal pressure. Any store owner in the South who chose to serve blacks would certainly have lost far more business among whites than he gained. There is no reason to believe that this system wouldn't have perpetuated itself absent outside pressure for change.
http://capitalgainsandgames.com/blog/bruce... 
