Kentucky GOP Senatorial candidate and Tea Party extraordinaire Rand Paul is in a wee bit of trouble. He argued, essentially, that the Civil Rights Act of 1964 should not have prevented private businesses from discriminating on the basis of race.

His defenders and quasi-defenders (those who see him as theoretically right but politically stupid) insist that he is playing philosopher instead of politician and that is getting him in trouble.

It’s easy for a blogger to say what Paul said – or an academic, for that matter – because the discussion can be contained within the realm of the theoretical. Legal scholars take on hypotheticals all the time, and make arguments that resonate conceptually but are politically and socially repugnant.

But Rand Paul evidently feels that his candidacy vindicates the use of this theoretically pure libertarianism in a practical political setting. If James Joyner hopes that Paul learns to be more careful about acting as a philosopher then he will likely be disappointed.

The whole point of Paul’s candidacy was to push a theory – a libertarian theory – about the Constitution, property rights, and limited government. And Paul, ever the Sophist, really believes that wordsmithing will win this for him politically. That is, he is a true believer in a sort of fundamentalist libertarianism and he believes that the consistency of his position will translate into electoral gain.

The risk is that voters will not, in the end, see him as just an eccentric and principled constitutionalist. Instead, they may see him as a Lester Maddox – or at least as an enabler of the next Lester Maddox.

Maddox owned a fried chicken restaurant in downtown Atlanta called the Pickrick. He insisted on his right not to serve black people – even after passage of the 1964 Civil Rights Act. Whereas George Wallace stood in the schoolhouse door at University of Alabama – a state institution – Maddox literally stood ready to bar the door at the Pickrick.

The courts eventually forced Maddox to allow black customers to eat at his restaurant. He became a cause celebre among the Massive Resistance crowd in its latter stage and got himself elected Governor of Georgia.

Maddox’s argument, endlessly repeated, was precisely that offered by Barry Goldwater in 1964 – and by Rand Paul today: the Federal government has no right to force a private businessman to serve African Americans. Maddox offered a libertarian defense of his right to discriminate. He did not call for the state to enforce segregation laws. He said that as a private businessman the Civil Rights Act had no constitutional authority to tell him who he can serve. Only, in Maddox’s case, it wasn’t a matter of libertarian sophistry just to make legal points. It was a deadly serious political and economic matter in the city supposedly “too busy to hate.”

What’s ironic is that, contrary to Paul’s bizarre paean to Martin Luther King, the bulk of the civil rights movement after 1960 was geared toward ending private business discrimination. As boycotters and protesters discovered, however, only the law could ultimately force racist businessmen to change their ways. Boycotts could be effective in limited cases – especially where African Americans were denied employment at places that they patronized. But in many downtown businesses boycotts did little to change things. In fact, White Citizens Councils organized counter-boycotts by pledging to shop at places picketed by blacks, and by picketing places that served black customers. And it isn’t like Southern state governments were willing to address this.

And let’s be honest here: this kind of discrimination still happens. African Americans still get refused service in restaurants, though in more subtle ways like forcing blacks to wait an extremely long time before getting served. This is still a real issue.

What Paul fails to understand is that for much of American history refusal to serve black customers was not just required by Jim Crow laws. It was good business too. And everybody arguing the case in 1964 understood that, save for a few libertarian sophists like Barry Goldwater who thought the larger principle of fighting “big government” was more important than ending racial discrimination. It was the Lester Maddoxes who reminded the world that the Civil Rights Act of 1964 was not just a theoretical argument about the Constitution.

I don’t think Rand Paul is a modern day Lester Maddox. I believe Paul when he says he abhors racism. I just don’t think Rand Paul understands what racism is, why it persists, and why an absolute property rights doctrine is not tenable in the real world.