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.
