It Is Dangerous to Be Right When the Government Is Wrong Read online

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  The (In)consistency of Governmental Intervention

  As we have seen, because we have the right to associate, we also have the right to discriminate. Ignoring these freedoms, the government chooses to circumvent our natural rights all the time, combating discrimination in the form of anti-discrimination laws at the local, state, and federal levels. As a result of these regulations, free individuals are required to associate with everyone. Again, we call this forced association, and forced association is unnatural and unconstitutional. In its quest to eliminate discrimination, the government violates our rights and is wholly inconsistent in the process. It only mandates that we associate with everyone in theory. The state makes exceptions to these anti-discrimination laws all the time.

  Take professional sports, for example. Why isn’t the government forcing the National Football League (NFL), Major League Baseball (MLB), or the National Basketball Association (NBA) to add women to their all-male rosters? If the government is so committed to eliminating discrimination, it should be consistent across the board. If the government can force Mrs. Murphy to serve Asians, Italians, and blacks at her Irish pub, the government should force three of the biggest industries in America to eliminate their own gender-based discrimination. It won’t.

  Why does the government allow these private organizations to discriminate? Are professional sports associations sacred cows? Are they the untouchables? Why is the government making exceptions for them? If these private teams and organizations have the right to discriminate against women and to associate with men only, should not other corporations and groups be allowed the same liberty—to associate with whom they please?

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  In a word, absolutely! The NFL, MLB, and NBA must have the right to discriminate against women because they are private entities. People tune in to professional football, baseball, and basketball to watch men who are at the top of their games compete against one another. As a result of this choice, the NFL, MLB, and NBA discriminate against women, and that is their First Amendment–protected right. Private businesses have that freedom, and the government must not interfere. However, the state must be consistent and allow Mrs. Murphy the same right.

  The Government Does Not Have the Right to Discriminate: Jim Crow, Anyone?

  Unlike free individuals and private businesses, the government does not have the right to associate (and alternatively, to discriminate) because it is constrained by the United States Constitution. Specifically, it is limited by the Equal Protection Clause of the Fourteenth Amendment. Instead, the government has been entrusted with the role of ensuring that all individuals are equally treated by the government under the Rule of Law.

  In his dissent in Plessy v. Ferguson (1896), Justice John Marshall Harlan boldly wrote, “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.”11 Simply stated, the government cannot pick and choose with whom it associates; and it cannot pick and choose with whom others associate either. These are not the concerns of the government. Rather, the government exists to protect our rights; the right to associate and the right to discriminate.

  Regrettably, in Plessy, the majority held constitutional a Louisiana law mandating “separate but equal” train cars for blacks and whites, thereby violating the freedom of association of passengers and the railroad owners. In order to comply with state law, white business owners had no choice but to fund and maintain four train cars—black non-smoking, white non-smoking, black smoking, and white smoking. Private enterprise did not wish to make that decision and incur that expense (rather, it wanted its cars integrated), but the government mandated segregation of the cars, thereby violating all parties’ freedom to associate. Unfortunately, the state has failed to protect this freedom time and time again throughout history.

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  Jim Crow laws—legally mandated discrimination—were the sad and unforgivable result of the Civil War and Reconstruction. These rules and customs and regulations legally enshrined blacks as second-class citizens for years. In my book Dred Scott’s Revenge: A Legal History of Race and Freedom in America, I document some of the disgusting and demoralizing government-mandated rules that will forever taint our nation’s history and that to this day impair the quiescence of American blacks.

  In Alabama, for example, it was a crime for blacks and whites to play cards at the same table or walk down the same sidewalks. In privately owned factories, blacks and whites were required to look out different windows. As witnesses in court, blacks and whites had to swear on different Bibles. Black barbers could not give white people haircuts. Blacks and whites had to check out books in separate library branches. This system of legalized segregation was fully in place by 1910 in every state in the South. In the passage of these dreadful Jim Crow laws, the government singlehandedly stripped blacks and whites of the freedom to associate with whom they pleased.

  Take note once more: Jim Crow laws were written, implemented, and enforced by the government. They were not the result of free individual action. Private streetcar companies in Augusta, Houston, Jacksonville, Mobile, Montgomery, and Memphis were not racially segregated during the late 1800s. But, by the early 1900s, the railcars were segregated because city ordinances and state statutes mandated racial separation in public accommodations. Therefore, the racists were not the white railroad owners—the racist was the state!

  In fact, many companies—including private railroads, for example—refused to adhere to Jim Crow laws. Economic historian Dr. Jennifer Roback argues that private railroads did not want to be segregated but were required to do so by law. Why did these private companies take that position? Because Jim Crow legislation was interfering with their right to run their businesses! Jim Crow legislation was interfering with their freedom to associate and to conduct business with whom they pleased! Just as blacks could not associate with whites in both public and private places, whites could not associate with blacks. So, the railroads objected. One railroad company, the Mobile Light and Railroad Company, “flat out refused to enforce” the Mobile, Alabama, segregation law.12 It is simple economics and business practice to integrate; it is far more costly to maintain and run four railway cars than two railway cars.

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  So, it was not the free markets of the South that perpetuated racism. It was the government working in conjunction with racist individuals to “intimidate those who would have integrated” that perpetuated racism.13 Jim Crow is a clear demonstration that we simply cannot trust the government to decide what discrimination is acceptable and what discrimination is deplorable. We, as free individuals, must have the right to associate, voice our opinions, and act according to our value systems, allowing conversation, discourse, and free markets to weed out the unacceptable beliefs in society.

  The government is wholly irrational, inconsistent, and arbitrary as exhibited in the implementation of Jim Crow laws across the South. With its irrationality, inconsistency, and arbitrariness, the government comes up with some pretty nonsensical outcomes. Jim Crow laws merely demonstrate how the government will continue to disappoint in its ability to protect the freedom of association.

  Looking into the next century to demonstrate how private companies can successfully abolish segregation without the “help” of the government: In 1947, the Brooklyn Dodgers integrated on their own timing and accord. The fact that this team voluntarily quashed segregation earlier than the rest of the MLB is testament to its success, winning six pennants between 1947 and 1956, with the help of Jackie Robinson. The takeaway here is: The state is not the answer to abhorrent racist behavior. Let individuals and private businesses express themselves! Wrongs will be righted. Individuals and businesses will protest the injustice. Individuals and businesses will denounce and reject racist, misogynist, and homophobic behavior. Individuals and businesses will criticize loudly. But the single fact remains: If we are truly a free society, we must have the full right to associate or not to associate with whomever we please—and that me
ans people have the right to be racist.

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  The Civil Rights Act of 1964 and Private Property

  The Civil Rights Act of 1964 prohibits the state and the federal government from making decisions based on race and from enforcing decisions based on race. The impetus for the Civil Rights Act was Jim Crow—government-mandated and government-enforced racism. At the time, the state’s invasive hand had, once again, violated the individual’s freedom of association, and the Civil Rights Act was central to the abolition of racist and unconstitutional Jim Crow.

  However, while the eight parts of the Civil Rights Act that restrain the government itself are crucial and constitutional, two provisions of the Act violate the fundamental rights of individuals—the freedom of association and basic property rights. The unconstitutional provision, Title II, prohibits private persons from making decisions based on race with respect to their private property when that property has become a public accommodation, one to which the public is invited in order to conduct commercial transactions with the property owner.

  The government does not have the authority to tell an individual how to run his business—who he allows in, who he sells to, or how he manages his finances. After all, what is the difference “between a homeowner inviting the public (minus blacks and Catholics) to his Friday night parties and a businessman who invites the public (minus blacks and Catholics) to purchase his goods?”14 There is no difference whatsoever. We may not agree with this business owner, but the government must defend the individual’s right to run his business the way he chooses. It is his property and his business. This concept is grounded in private ownership rights, elemental tenets of the purpose of government in a free society, and the natural freedom of association.

  Moreover, these laws become even more invasive because it is so difficult to determine if someone had the actual intent to discriminate. To address this difficulty, enforcers of the law devised the following rule: Lack of diversity in the workplace (or amongst customers) creates a rebuttable presumption that discrimination has occurred. In other words, once this lack of diversity has been documented, the burden is on you, as the employer, to prove that you did not in fact discriminate. Ironically, an employer could avoid these types of lawsuits by doing precisely what the Act forbade: Discriminating. All you would have to do to achieve a diverse workforce is to hire people on the basis of their race.

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  More pragmatically, Congress lacks constitutional authorization to regulate private enterprises which do not participate in business across state borders. The Civil Rights Act was passed under the auspices of the Commerce Clause, which expressly grants Congress only the power to regulate interstate commerce, that is, commercial activity that takes place in more than one state. The difficulty with the Civil Rights Act is that the vast majority of enterprises it regulates are small, local outfits which have no intention of expanding the scope of their businesses beyond their towns, much less their states.

  In order to uphold the constitutionality of the Civil Rights Act, the Supreme Court has expanded its reading of the Commerce Clause to encompass nearly any activity (indeed it is difficult to envision an activity it would not reach). Take, for example, the case of Katzenbach v. McClung (1964). Katzenbach involved a small barbeque restaurant in Birmingham, Alabama, which had refused to seat African American customers. About half of its food was purchased from an in-state distributor, which had in turn sourced that food from out of state. Nearly all of its customers were locals.

  The Supreme Court nonetheless held that the Civil Rights Act was constitutional as applied to that restaurant, due to its indirect sourcing of food from out of state. Because racial discrimination could lessen the total amount of food sold, meaning less business for out-of-state food sellers, Congress had a “legitimate” interest in eliminating this economic “burden.” As an initial matter, it should be clear that securing additional business for out-of-state enterprises was certainly not Congress’s motivation in passing the Civil Rights Act (at least one should hope not); the Supreme Court is effectively “inventing” a rationale for the legislation. More importantly, this reading of the Commerce Clause has meant that Congress can regulate nearly any activity for any reason it chooses. Ask yourself the following question: How many states (and countries) were involved in producing the clothes you are wearing, the food you have eaten today—even the paper this book is printed on? With Katzenbach’s jurisprudence, we are no longer a government of limited powers.

  This topic brought Rand Paul, M.D., into some controversy on MSNBC’s “Rachel Maddow Show” shortly after his 2010 Republican primary win for the U.S. Senate in Kentucky. Dr. Paul—now Senator Paul—stated that he supported most parts of the Civil Rights Act, except one—Title II. This statement sent politicians and the media into an uproar. Title II makes it unlawful for private businesses to discriminate against customers based on race. Dr. Paul and libertarians everywhere believe that the Natural Law is colorblind, that the personal decisions based on race are invidious and perfidious; but they also believe that the government has no right to force private persons or businesses (nongovernmental actors) to associate with whom they do not desire because this coercion violates First Amendment rights. The net result of the Civil Rights Act is forced association, which is unconstitutional on its face. Neither mandatory segregation nor mandatory association is consistent with the Natural Law or the Constitution in our free society.15

  The Washington Post described Dr. Paul’s comments on the cable network as “an uncomfortable conversation about the federal government’s role in prohibiting racial discrimination and about a period of history that most politicians consider beyond debate.”16 It is depressing that we, as a society, cannot stomach a conversation on the fundamental freedom of association, property rights, and race in our allegedly “post-racial society.”

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  How Laborious! Labor Unions and the Denial of the Right to Associate

  Throughout history, there is a constant and sorry trend of government attempting to fix a problem, inevitably exacerbating the problem, and ultimately violating personal freedoms in the process. In the wake of severe economic troubles during the Great Depression, Congress passed the National Labor Relations Act (NLRA), also called the Wagner Act. At the time, unemployment was high, and the standard of living was declining quickly. In theory, the Act “encourage[s] a healthy relationship between private-sector workers and their employers, which policy makers viewed as vital to the national interest.” Healthy relationship is a relative term. This particular definition came from the National Labor Relations Board (NLRB), which is the federal agency the NLRA created. It seems to me that a forced relationship (or association) is anything but healthy. Rather, this toxic federal law is a prime example of forced association in every way, with each and every party affected negatively. Let’s start from the top.

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  Firstly, the NLRA requires private employers to work with certified unions (that are certified not by a neutral third party, but by the government). In doing so, the government is limiting the means by which private employers work and relate with their very own employees. Collective bargaining becomes the rule without the consent of one of the parties, the employer itself. “In ordinary contract law and on the basis of freedom of association, any contract between A and B that is the result of either A or B being forced to bargain with the other is null and void.”17 The government seems to ignore these established legal principles. Through the NLRA, it grossly violates the private property of the business owner and subsequently demolishes its right of association.

  Ironically enough, the NLRA also violates the associational freedoms of the very individuals it seeks to protect: The individual workers. Their rights are violated in two ways. First, when a union has been approved by the majority of workers at a company as the “bargaining agent,” that union becomes the sole bargaining agent for all workers. It is the voice both of those who voted to join the union and those
who voted against the union.18 As a result, a monopoly develops, and individual workers are barred from even representing themselves; they have been forced to associate with the majority.

  Secondly, the NLRA compels the workers to pay union dues whether or not they voted for the union in the first place.19 The concept is called union security, but it is simply forced association.20

  And lastly, the unions themselves endure forced association in yet a different manner. Unions must associate and accept as members any individual workers who wish to join, even those who hate unions, or may cause them harm. Also, if the employer wishes to bargain, the union is obligated to do so “under the principle of mandatory good-faith bargaining” (although this forced association tends to work in the union’s favor).21

  The NLRA violates the rights of all parties involved, stripping them of their freedom of association. Not a single entity—employer, individual worker, or union—has the right to associate with the entity or individuals of its choosing. It is amazing how the NLRA managed to hit so many birds with one stone. As you can see, “the authors of the U.S. Constitution would have considered the NLRA unconstitutional on its face.”22

  There is one party that benefits from this forceful, freedom-negating federal regulation: The government. As a result of this labor union–private employer arrangement, the state grows in power, asserting a substantial amount of authority over the private sphere.

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  Professor Charles Baird poses a solution to the government’s obsession with coercion and its tendency to violate the freedom of association: “If Congress insists on giving unions special privileges of coercion, it should be honest and promulgate a constitutional amendment that says freedom of association does not apply in labor markets. Don’t hold your breath.”23 When was the last time the government was honest with you?