It Is Dangerous to Be Right When the Government Is Wrong (13 page)

Laurence M. Vance, an adjunct scholar of the Mises Institute, equates the private home scenario with the private business scenario, as well. There is no distinction, he says:

Just as no one has a right to enter my home, so no one should have a right to stay at my inn, hotel, or motel; eat at my restaurant, cafeteria, lunchroom, or lunch counter; enjoy a beverage at my soda fountain; fill up at my gas station; view a movie at my theater; listen to a concert in my hall; or watch a sporting event at my arena or stadium.
⁹

This notion is difficult to accept today because our society teaches us that racial discrimination is wrong. And I completely agree! Racism is morally wrong and thus deplorable. The problem is: When government interjects itself and tells a private business owner with whom he or she can associate on his or her own property—that becomes a constitutional and legal problem that could generate far more harm to natural rights than the owner of a movie theater could. It is not the government's job to insert itself in this manner. It is the government's job to protect the voice and actions of the unpopular opinion. It just so happens that the racist is in the minority here. The pacifist, agriculturalist, Jew, or Scientologist may be in the minority next time. Roger Pilon at the Cato Institute explains, “We do not all agree on ‘the good' . . . one person's ‘irrational' discrimination is another's perfectly reasonable decision.”
¹⁰
It may feel like the world is upside down when we are defending the racist, the misogynist, or the homophobe, but the Rule of Law is in place to protect the minority from the tyranny of the majority.

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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 means 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.