Tuesday, December 22, 2015
Based on Posts Written on May 23rd, 2015
Expanded on December 15th, 17th, 22nd, and 23rd, 2015, and February 12th and 13th, 2016
Edited on January 22nd and 23rd, and February 12th and 13th, 2016
American civil society is not based on freedom and liberty; is it based on legality and permission.
The Ninth Amendment to the U.S. Constitution reads, “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
The majority in the case of Murdock v. Pennsylvania ruled that “no state shall convert a liberty into a license, and charge a fee therefore.” The majority in Shuttlesworth v. City of Birmingham, Alabama ruled that “If the State converts a right (liberty) into a privilege, the citizen can ignore the license and fee and engage in the right (liberty) with impunity.”
Nowhere does the Constitution mention home ownership, car ownership, marriage, sex, drug use, nor commercial activity which does not cross state lines. Since they are not mentioned, the federal government does not have jurisdiction to regulate those activities, so according to the Tenth Amendment, they are rights that are retained by the states, and/or – depending on the content of the various state constitutions – the people.
It would seem that these kinds of property ownership and activities are natural liberties, which existed prior to, and without, government, and therefore they should not, and cannot, be rightfully limited, nor conditioned, by governments.
However, many manners of ownership and types of activities such as these – including ownership and activities which neither harm, nor even affect, anyone else, if properly maintained and undertaken – are routinely, and egregiously, taxed and regulated by governments. Moreover, they have all kinds of permission and licensure requirements imposed on them; requirements that all sorts of documentation be presented to authorities in order to continue.
Proponents of gun control sometimes argue that guns should be treated like cars. As an internet meme on the subject reads, “It’s done for a car, why not a gun? Get a learner’s permit. Take a written test to prove your knowledge of gun laws, usage and safety. Take your weapon for a ‘road test’ to obtain a license. Obtain insurance, pay to register it every few years and have it inspected on a regular basis.”
But is it really necessary to have a driver’s license in order to enjoy the right to drive? No; in fact, between 1868 and 1972, no less than 24 cases in the United States effectively affirmed either 1) that driving is a fundamental right, rather than a privilege; and / or 2) that one’s mode of transportation is a matter of personal choice; and / or 3a) that it is not necessary to obtain a license nor registration in order to drive or travel; and / or 3b) that it is not necessary to pay a licensing fee, nor any other tax or duty; and / or 4a) that the only thing required to drive a vehicle is reasonable care in its operation, and / or 4b) to obey the common law of the road.
The first in these cases was Crandall v. Nevada (1868, Nevada), the ruling in which actually goes so far as to suggest that requirements to pay for drivers’ licenses are taxes which inhibit people from leaving their state.
Twenty-three other cases which affirm the liberties which I mentioned above are: Arthur v. Morgan (1884, U.S.); Swift v. City of Topeka (1890, Kansas); City of Chicago v. Collins (1898, Illinois); Ex Parte Dickey (Dickey v. Davis) (1904, California); Indiana Springs Co. v. Brown (1905, Indiana); Christy v. Elliot (1905, Illinois); Hillhouse v. United States (1907, U.S.); Simeone v. Lindsay (1907, Delaware); Brinkman v. Pacholke (1908, Indiana); Cecchi v. Lindsay (1910, Delaware);vFarnsworth v. Tampa Electric Co. (1911, Florida); State v. Armstead (1913, Mississippi); Escobedo v. California (1914, California); Butler v. Cabe (1914, Arkansas); Chicago Motor Coach Co. v. City of Chicago (1929, Illinois); Thompson v. Smith (1930, Virginia); Teche Lines, Inc. v. Danforth (1943, Mississippi); Berberian v. Lussier (1958, Rhode Island); Schecter v. Killingsworth (1963, Arizona); Adams v. City of Pocatello (1966, Idaho); California v. Farley (1971, California); People v. Horton (1971, California); and Ward v. Meredith (1972, California).
This shows that the gun control proponent’s argument holds no weight, when predicated on the idea that gun licensing requirements can be justified on the grounds that one must be licensed in order to drive a car.
But let us (ahem) shift gears for a moment, from cars and guns, to gay marriage: proponents of gay marriage often argue that homosexual couples should be “free” to marry just like heterosexual couples. However, they often neglect to mention that the legal right to marry is not a freedom, but a privilege; a privilege which is only granted if the civil government deigns to grant permission for the union.
Given that, before 1967, most states in the union had anti-miscegenation laws that prohibited people from different races from intermarrying, isn’t it obvious that a government which has the ability to deny the legal right to marry on the basis of race, is a government which is powerful enough to deny the legal right to marry on the basis of sexual orientation, and moreover, a government powerful enough to reverse its stance on criminalizing marriage across races? And isn't it obvious that a government powerful enough to have once restricted the conditions for blacks to own firearms, is powerful enough to do it again?
Given all this – and the fact that in some states (particularly, Illinois), couples actually have to apply for an application to obtain a marriage license (that’s right, you have to apply in order to apply) – why should marriage be a privilege, but not a freedom? If my spouse and I agree that we are married, and we have a verbal or written agreement between ourselves, and/or mark that fact down in our family Bible (or our copy of Charles Darwin’s On the Origin of Species, or wherever we want to write it down), then what is a government to tell us otherwise? How does our status as an informally married couple interfere with the rights or freedoms of anybody else?
Similarly, the proponents of marijuana legalization have argued in favor of legalizing or decriminalizing marijuana use, sale, and possession, but rarely support making marijuana use a freedom. While it is conducive to increasing personal liberty to reduce criminal penalties for using, selling, and possessing marijuana, to “legalize” marijuana serves only to create new sets of laws which control how, and when, and by whom, marijuana is used. To “legalize” marijuana is not to normalize it – making its use and sale “free” – but to (as I like to say) “legal it up”.
Some states, regrettably, are so eager to make marijuana use more free, that they are willing to tax it, albeit for some arguably good purposes, such as education. But when the State of Oregon considered its own legislation to legalize recreational marijuana use, clever lawmakers were able to hide the fact that nearly half of the funds from legal marijuana taxation went to law enforcement. They did this by breaking up funding for police into three different items, such that the single item appearing to reap the most funding – because it had the highest percentage of funding for a single item – was education and schools, rather than policing.
The result is that, while police may cease enforcing laws against personal marijuana use, the taxes reaped from legal marijuana sales in Oregon, now fund the enforcement of laws, including laws against selling marijuana without the proper business permits (in the case of Oregon, that is, unless the buyer is a medicinal marijuana patient, in which case, they, too, have to go through the proper channels, obtaining diagnoses from doctors, and permits).
Although in some states, obtaining a marriage license entitles couples to some hundreds of legally protected rights (in the case of New York, fourteen hundred), and permits for guns and marijuana protect those who own and use them against unlawful aggression by the police, these are not true protections of already existing freedoms, i.e., liberties, but rather, privileges, which are only gained upon the satisfaction of certain conditions, and which can be altered and taken away through elections and legislation.
Aside from applications, and permits, and licenses, we often use the term “registration” to describe the application process for obtaining such privileges; registering your car, registering your gun, registering to vote, et cetera. But what is really going on here is that the roots of the word “register” are the Latin words regis (“of the king”) and rex (“king”).
We do not own our cars, nor our guns, nor the right to vote, nor the terms of our marriage, nor the substances we use in the privacy of “our own homes”. We register those things with the civil government, and with the aristocrats who run it. They own the titles to those things; we merely rent, or use, or occupy them. They can take those things away from us, when and if we fail to use them, how, and when, and for what purposes, they – the legal owners – would prefer us to. We pay property taxes, and rent, and fees for licenses, permits, and registration, in order to gain and retain possession of those things.
As the liberal supporters of gay marriage and marijuana legalization tell us, we should have to register our guns and obtain permits, and the taxes from legal marijuana sales should go to fund schools, and perhaps law enforcement. But what if we treated gay marriage and gay sex the same way their proponents wish to treat gun ownership and use?
Why, if one must obtain permission from the government in order to own a gun, or marijuana – and own and use them on what is supposedly our own private property – should a gay couple not be obligated to obtain permission from the government in order to do what they do in the privacy of their own homes?
And hey, as long as we’re requiring permission for gay sex and gay marriage, and imposing taxes on marijuana, why don’t we tax gay sex too!? “You don’t want to pay the government a dollar to help build a school, each time you have gay sex? You must hate children!” …Or I just don’t want to help fund the police and the political and bureaucratic classes every time I exercise a basic personal freedom.
Anyway, this may sound ridiculous, and, of course, gay couples should not have to apply for permission to do have sex. But what if they want to call their relationship a marriage? In that case, those same liberals are perfectly happy to fight for a decade or two in order to turn what was already a liberty, into a privilege, granted through government permission, and protected by law.
As 2004 Libertarian Party presidential candidate Michael Badnarik explained, common-law marriage already exists (at least in nine or ten states, but it used to be more prevalent). In some states, you can be in a committed relationship with somebody, live with them, have children together, and call what you have a “marriage”, and the government will, or at least should, recognize it as such. So, then, why, in the push to legalize same-sex marriage, was the debate framed in terms of “government giving or granting us equal rights”, rather than in terms of “government legally recognizing and protecting an equal right that we already have”?
Even more disturbing than the idea that our rights come from government, and that government can deny the privilege to marry on the basis of race or sexual orientation, is the implication of something else that Badnarik explained. Namely, if I have to ask the government for the legal permission to have sex with my spouse and to call that a marriage, and the government has the authority to deny me that privilege, then doesn’t this imply that the government is the legal possessor of the original right to have sex with my spouse, and to call that a marriage?
Furthermore, why should I have to pay sixty dollars to the government for a marriage license, in order to fuck my wife, when this woman has already agreed to let me fuck her, and call her “my wife” (or “Britney Spears”, or “Donald Duck”, or whatever I please) for a mere fifty dollars!? These questions may seem crass, but they beg asking. After all, isn’t it the fault of government that the economy has been so poorly managed that the resulting poverty has driven many people into prostitution?
Simply put, in that we are all potential spouses, isn’t government little more than the abusive marital partner, and the pimp, of us all?
But the fact that privileges masquerade as freedoms, rights, and liberties, does not only apply to guns, marriage, illicit substances, and the other things I mentioned; it also applies to identification documents, and substances which the government does not regard as illicit.
Take, for example, tobacco and alcohol. Suppose that I want to buy a pack of cigarettes or a six-pack of beer. In order to do so, I have to prove that I’m above some age predetermined through government legislation. That is so, even if it is obvious that I am above that age, and whether or not I am an emancipated minor, and/or mature enough to smoke or drink. The transaction between me and the merchant cannot be described as either mutual nor free-market; there is a third party involved that taxes, regulates, and conditions the transaction.
By the way, even if I have the proper identification document – such as a driver’s license or a state-issued photo identification card – there is no guarantee that the merchant will accept it, because state I.D.s and driver’s licenses can look very dissimilar, and because the merchant might not be sure that the I.D. is real. This problem could very well be used as justification for ushering in a National I.D. Card, but I argue that personal privacy would be surrendered in the implementation of such a thing.
Even now, without a National I.D. Card, if you do manage to get your I.D. accepted by the merchant, he or she might not simply read it in order to verify it, they might run it under an electronic scanner, and who knows where that information is going?
Not only are possession, use, and sale of marijuana, tobacco, and alcohol conditioned by government; so too are accessories and paraphernalia. Lighters, rolling papers, keg taps… none of these things will get you high or drunk, but you still – in some circumstances and jurisdictions – have to prove you’re above some legal age in order to buy them.
Say I, to the merchant: “Papers, please?”. Reply he: “Papers, please!?”.
But why should you have to prove that you’re old enough to use tobacco, in order to buy a lighter? What if you don’t smoke, and you’re only buying a lighter because you’re about to go to the woods and light a camp fire? If the answer is because the merchant doesn’t know for what purpose you’re going to use the lighter, why should that matter, if once you buy the lighter, it becomes your property, and thus yours to do with however you wish, as long as your use of it doesn’t harm anyone else’s person or legitimate property?
What is going to happen after a monetary, governmental, and industrial collapse force us into bare subsistence mode? Are we still going to ask for government permission to build fires in order to survive?
Furthermore, where should we draw the line between work, labor, and action? As Hannah Arendt explained in The Human Condition, some forms of action are undertaken solely for the purpose of sustenance of life, while others are undertaken for the purpose of producing some enduring item or artefact (this is Arendt’s distinction between labor and work, respectively). Arendt’s distinction is a philosophical one, but what is the difference between labor and work in legal terms?
As comedian Doug Stanhope noted, “You need a diploma in this country to cut hair.” Cosmetology students are required to take a national examination in order to get licensed and become practicing cosmetologists. Obtaining and renewing licenses range from $30 to $150, and in some jurisdictions they require more hours of training than the medical profession.
If I cut my (hypothetical) child’s hair, or anybody else’s, for free, am I engaged in a form of work and commerce; the kind that warrants being taxed and regulated, and warrants legislation requiring that I must apply for a permit in order to do so? Am I engaging in underground market activity, cheating the taxman, the regulators and bureaucrats, and the permit and licensure systems? Furthermore, if I receive no monetary compensation for doing so, am I engaging in a kind of uncompensated labor which can rightfully be described as involuntary servitude, i.e., slavery?
Am I, by cutting my own hair, or anyone else’s, depriving licensed barbers and cosmetologists of their jobs, and engaging in the kind of behavior which should merit me having my knees crowbarred by the local barbers’ union?
Or, by cutting someone’s hair, am I simply engaging in a basic liberty, which is no business of anybody else, unless I elect to call my enterprise (i.e., an undertaking) an enterprise (i.e., a business), and choose to have any income taxed, and my actions regulated?
What about cooking and washing dishes? If I invite people into “my” home, and feed them, and wash their dishes afterwards, then shouldn’t I be paid for my service, or at least compensated for the cost of the food, and the soap and water? What if I provide the cooking, and the food, and dish washing, for free, but I accept voluntary donations? If I reap income from that service, should that income be taxed? Is that commercial activity, the kind which should get me in trouble with local zoning boards, because I am engaging in business activity in a residential area?
If so, then what’s to stop the government – the pimp of us all – from declaring the sex that I have, to be untaxed, unregulated commercial activity in a non-business residential zone, requiring me to get a government whoring license, obey regulations and pay taxes, and put me out of business and send me to jail for prostitution?
While we’re on the topic of prostitution, why does “legalizing” prostitution involve licensing, permits, regulation, and S.T.D. testing? Why can’t “legalizing” prostitution involve making prostitution a liberty; making it free? Do governments that legalize prostitution expect most prostitutes to have their lives together enough to pay for these permits and tests, join a whores’ union, and fill out reams of government paperwork?
But back to serving food: Should I get in trouble with the local health inspector for serving uninspected food? Again, this may sound ridiculous, but mothers of school children who were involved in bake sales to raise money for their schools, have had their home-made baked goods destroyed because they were made in the home, rather than in places where sanitary conditions could be ensured by the health inspector.
Not only that, but in various states, police have shut down children’s lemonade stands because the children and their parents did not apply for the appropriate vendors’ licenses and permits. Lemonade stands have even been shut down for fear that the drinks sold could be poisonous, like the Kool-Aid served at Jonestown in Guyana, which led to the death of over 900 people in a mass suicide.
Eleven-year-old Madison “Mistletoe Maddie” Root was denied the freedom to walk around and sell hand-picked mistletoe at a street fair in Portland, Oregon – and told to beg for money like a homeless person – because she did not obtain a permit, and also out of concerns for the plant’s psychotropic effects. Again, “it’s poison!” Some people are allergic!
So I guess we need vendors’ permits, and also child labor laws, to stop our children from becoming exploited slaves, and somehow also, at the same time, members of terrorist religious cults. Warren Buffett gets to sell peanuts at the age of eight for five cents here and ten cents here, and now he’s a billionaire, but yeah, our children are terrorists if they can’t learn to respect the police’s goddamn authoritaw.
Clearly the problem is insufficiently enforced child labor laws, and vendors’ licensing standards, not a reckless obedience to authority that leaves us blind to the importance of instilling a work ethic in the next generation, and teaching them the value of a dollar. It’s best to just let the snow pile up on the State of New Jersey day after day, and hope that twelve-year-old boys will figure out a way to raise the $350 necessary to obtain a permit to shovel their neighbors’ driveways. Those neighbors need to get to work to slave away for their employers and the government? Tough shit.
Whether you’re an illegal immigrant buying a six-pack of beer or a pack of cigarettes after a hard day of underground labor; or a kid selling some peanuts or lemonade; or a dude who just lost his wallet and I.D. cards buying a pack of rolling papers; or a gay guy having sex with his boyfriend and wanting to call it a marriage; or a black cohabiting couple with children, trying to get their common-law marriage recognized; or a wannabe hairdresser giving out free samples; or a family baking some cookies to help fund a school; or a dude with glaucoma (or just the munchies) smoking weed in his basement (or his mom’s basement); or a mutual aid society trying to feed a group of homeless people in a public park without being obligated to pay a fine; or a poor person trying to register to vote; or a black farmer in the early 20th century trying to get a gun to fend off crows, or enforcers of Jim Crow laws; or a minor driving their collapsed parent to the hospital; or a lady who wants to possess her car or home in a manner that resembles full ownership (including the right to deny others, including law enforcement officials, the right to search that property); or just a person walking around doing some unspecified thing that could, by some contrived stretch of government imagination, be construed as commercial activity… basically, fuck you, get your Nazi paperwork in order.
So go hit the books. Just don’t read the Ninth or Tenth Amendments to the Constitution, or the part of the Fourth Amendment about the right to be secure in our papers.
Saturday, December 12, 2015
Originally Written on August 23rd, 2015
Edited and Expanded between December 7th and 12th, 2015
In September 2012, I called in to Sam Seder's show “The Majority Report”, a liberal talk radio broadcast. I was calling to take Seder up on his invitation for libertarians to debate him. Seder and I discussed taxation, private militaries, and public utilities such as phone and internet. The video of the conversation was later posted on YouTube as “Libertarian Oblivious to 'Who Built That'” (https://www.youtube.com/watch?v=lc9lEjbYiuU).
Seder described what I wanted as “feudalism”, and told me that what I want sounded more like something out of the show Game of Thrones than something in the real world. I didn't know what Game of Thrones was at the time, but after having seen the show, I can say now that I would rather live under “feudalism” - if that is what the show depicts – than the system that we have now (which, arguably, is a form of feudalism).
In the aftermath of the shooting in Charleston, South Carolina in August 2015, I planned on calling Seder's show in order to discuss civil rights, and address a conversation between Seder and a person who called his show in May 2014. That conversation involved discussions about currency, principles, property rights, and civil rights legislation. It was posted to YouTube as “Another Episode of Libertarians Gone Crazy! With Sam Seder” (https://www.youtube.com/watch?v=EmmcTzeOK1Q) and “Libertarian Caller: I Oppose the Civil Rights Act... on Principle” (https://www.youtube.com/watch?v=JZ0syDgMJ7k).
The following is an edited and expanded version of what I planned to discuss with Seder.
In the aftermath of the shooting in Charleston, South Carolina, this is no time to stoke the flames of racial hatred. However, I oppose Title II of the Civil Rights Act of 1964. For those who don't know, that was the provision of the Civil Rights Act that prohibited discrimination and segregation in “places of public accommodation”. Unfortunately, nowhere in the legislation were the terms “public” nor “private” defined, nor differentiated.
The man who called in May 2014 said that he was opposed to that same provision, asserting that private businesses are, more or less, the same as regular people's private property, for example, their homes. He added that the freedom of association protects our right to keep people out of our homes and off of our business properties.
I argue that, for the most part, this should stand regardless of whether such businesses supposedly serve “the public”, which is to say, individual members of the public who have the right to choose whether to attempt to become customers or patrons of such businesses. I and other opponents of Title II contend that the freedom of association includes the freedom from association; the right to be left alone.
The Fifth Amendment protects our right to be free from unjust takings; it states that “no person shall be deprived of life, liberty, or property without due process.” Essentially, it states that none of our property, nor any of its use-value, shall be taken away, unless and until we are charged with, and convicted of, a crime. The use-value of a business property includes the “right to refuse service to anyone”, and as the man who called in to the Majority Report in May 2014 pointed out, signs bearing those words are hanging on the walls of businesses all over the country.
Therefore, Title II of the Civil Rights Act of 1964 presents an encroachment upon the Fifth Amendment, but it also – through its omission of definitions and distinctions – blurs the line between what is public property and what is private property. Additionally, and most importantly, Title II presents a problem when it comes to the interstate Commerce Clause of the U.S. Constitution, which gives the federal government the authority “to regulate commerce … among the several states”.
Suppose that I live in Montana, and I make and sell firearms. Suppose that the bullets come from one part of the state, and the shells come from another part of the state, and I manufacture the scopes in a factory that I own on my own private property. Since I only conduct commerce within the state of Montana, I am engaged in intrastate, or in-state, commerce, but not in interstate commerce. So only Montana state statutes and local ordinances apply to me, because, under the traditional interpretation of the Commerce Clause, this commercial activity would be none of the federal government's business.
Assume that I own a restaurant, and that it only has one location, or that it has several locations, but they are all located in the same state. As with gun manufacturing, only state and local laws get to say whether I have the right to refuse service to anyone. It is only when I am engaged in interstate commerce – commercial activity that crosses state borders – that the federal government shall have constitutional authority to get involved.
Returning to the topic of gun manufacturing in Montana, the state statute Montana Firearms Freedoms Act, according to Wikipedia, “sought to exempt firearms manufactured in Montana from federal regulation under the interstate commerce and supremacy clauses” of the Constitution. The law was challenged, and the plaintiffs in the case wanted gun manufacturers to comply with federal laws, but their suit was dismissed by the U.S. District Court in 2010 “for lack of subject matter jurisdiction and failure to state a claim”. However, the United States Court of Appeals for the Ninth Circuit ruled that the plaintiffs in the case did have standing, but still dismissed the case due to the plaintiffs' failure to state a claim, concluding that the “creation and circulation of such firearms could reasonably be expected to impact the market for firearms nationally”.
It is this “reasonable expectation” of intrastate commerce having an impact on the national market, which was the gist of the Civil Rights Act of 1964's standard – and the standard set by a subsequent lawsuit regarding the act - regarding when federal intervention is appropriate. In the case of Heart of Atlanta Motel, Inc. v. United States, the U.S. Supreme Court found that Heart of Atlanta Motel and Pickrick restaurant – the businesses owned by plaintiffs Moreton Rolleston and Georgia Governor Lester Maddox, respectively - substantially affected interstate commerce.
The opinion of the court majority in that case was that, since the majority of Heart of Atlanta's clientele came from out-of-state, and since it was strategically located near two interstate highways and two state highways, the business clearly affected interstate commerce, and so, the federal government had the authority to intervene in order to regulate that commerce in a way that stopped or prevented the discrimination and segregation which was occurring there.
The effect of the court's decision in Heart of Atlanta was that substantial effect on interstate commerce rests on the opinion of the courts, regardless of the fact that the hotel and restaurant had the freedom to choose to restrict their clientele to people from within the state, and regardless of the fact that those businesses had the freedom to restrict their other commercial activities aside from their service of clientele (i.e., the sourcing of their raw materials) to within the state.
Back to Montana. Say I own a restaurant in Montana, and I want to expand my business. However, there aren't many people in Montana, so in order to get more customers, I plan to open a new location in a neighboring state; suppose it's Idaho. I might open up that new franchise in Idaho, and post a sign on the wall that reads “we reserve the right to refuse service to anyone”, however, the federal government would have the authority to intervene in order to stop me.
This is because my restaurant would operate in two states; therefore, I'd be incontrovertibly involved in, and substantially affecting interstate commerce. Furthermore, I'd be actively discriminating against people who have the freedom to travel, and the freedom to acquire property through purchasing food, and other possessions (supposing that the business is a gas station or convenience store), and renting rooms (supposing that the business is a hotel or motel). But, of course, the freedom to buy and sell is conditional upon the permission of the other seller or buyer whom is party to the transaction.
To put things rather bluntly, my interpretation of the interstate Commerce Clause does not prohibit black people from eating chicken and waffles. Waffle House has branches in twenty-five states, so clearly, it is involved in interstate commerce, which means that the commerce in which it is engaged is subject to regulation by the federal government. This stands even under the interpretation of the word “regulate” which holds the word to mean “keep regular”, i.e., free from undue inhibitions, including the kind of inhibitions imposed through keeping minorities off of the premises.
Now, suppose that Barry Goldwater, who criticized the Civil Rights Act of 1964 for Title II and Title VII (the title which prohibits discrimination in employment), had defeated Lyndon B. Johnson to become president in 1964. Or simply suppose that Title II had been removed, amended, or clarified, to fit the Commerce Clause's original purpose (i.e., to keep the federal government out of the states' internal business affairs, and to prevent states from passing laws to favor their own commerce over that of other states), or suppose that the Supreme Court had ruled in favor of the plaintiffs in Heart of Atlanta, to find portions or the whole of the 1964 C.R.A. unconstitutional.
Also, suppose that I own a convenience store in Indiana, near the border with Illinois. Suppose that I segregate or discriminate, that I refuse to allow black people to become patrons and/or employees. Suppose I segregate and discriminate against atheists, or communists. Suppose the target of my discrimination is not a minority, suppose I want to keep Christian gun owners out of my store. Suppose I don't want police officers, or veterans, or British royalty, or the Pope, or Rahm Emanuel, coming in, taking my snacks, and trying to draft me into their army.
Suppose I don't want to let federal agents onto my property, because they're trying to ensure that I am compliant with the Real I.D. Act.; trying to force me to make sure that my employees are in the country legally, and trying to make me card undocumented workers for trying to buy a six-pack of beer after a hard shift of day-labor. Say I don't care whether they're here legally, and they and I are both just trying to pay our bills and get money to our families.
Say I'm this business owner in Indiana. Everybody hates Indiana, right? They sure do! (Note: I choose Indiana because liberals recently considered boycotting the state over its opposition to gay marriage.) I own this gas station, or convenience store. Say I don't want to allow Democrats inside, because I think they're lazy and shiftless.
Anyway, long story short, say I want to open up another store and start expanding across the nearby border into Illinois, and I want to retain my legal right to discriminate against anyone, for any reason, without being obligated to give a reason. Here's where things get absurd.
Then you would see half of the country getting up in arms against me – not because I'm discriminating – but in order to demand that the federal government allow me to expand into Illinois. The initial left-liberal reaction to this would be something like “Why do you want this racist business owner to expand? So he can discriminate in Illinois, in addition to Indiana!?”
And those who support my expansion would respond, “No, we want him to expand into Illinois so that his business would be unquestionably engaged in interstate commerce, putting the business under federal jurisdiction, enabling the federal government to regulate the business, in order to stop the discrimination or segregation!”
Then, business owners who want to segregate and/or discriminate would be faced with a difficult choice: keep their business in one state, risking that it stay small, but retain their rights to discriminate, or expand their business into other states, in order to expand their market reaches, but, in so doing, lose their right to discriminate.
Then, business owners might finally capitulate to what the federal government intended to accomplish in crafting Title II; they might simply reason that they can expand their businesses by resolving to stop segregating and/or discriminating – that is, to agree to serve anyone and everyone who comes onto their property with the intent of patronizing their businesses – instead of trying to grow their clientele by expanding into other states, and having to comply with additional federal regulations in the process.
Finally, suppose that the U.S. Supreme Court had found Title II, or the entire Civil Rights Act of 1964, unconstitutional. Then, it would be up to each state, and each community, whether to allow discrimination and segregation on private commercial property. Then, it would be clearly and widely known which businesses, and which state and local governments, allow or support discrimination and segregation.
In such a situation, people would be free to boycott such businesses - depriving them of the money they would earn through transactions – and also free to boycott, and stay clear of, entire states and communities (however, they would not be able to boycott the federal government).
But now, the opposite is the case; business owners who want to discriminate and segregate are required to serve anyone and everyone who comes onto their property. So now, people can freely wander onto commercial properties, and become their patrons, without having any clue as to whether its employees and/or owners are dangerous racists, sexists, xenophobes, or political extremists, who may want to see those patrons fall victim of violence.
Even if we could tell which business owners are racists (et cetera) and which are not, and wanted to boycott them, we would still have to fight the Internal Revenue Service and the state and local tax agencies, and the various departments and chambers of commerce, in order to stop our tax money from being spent in order to subsidize, and bail-out, and grant limited liability and intellectual property protections to, such discriminatory businesses.