Freedom of Association and Rights

Tibor R. Machan

A big flaw of the famous 1964 Civil Rights law is that it engages in regimenting who may or must associate with whom in private commerce. Among free men and women no such regimentation by government is permissible even if, to quote one prominent Republican "it is the law of the land." So is the war on drugs, so used to be laws mandating segregation. Saying something is the law of the land settles nothing at all about whether it should be the law of the land.

We are here not talking about whether those engaged in private commerce ought to do so without racial prejudice. Of course they should. It is immoral to hold it against someone that he or she is of a certain race, for the simple reason that no one has a choice about his or her race. Being black or white or yellow or whatever race or color isn't either a liability or asset for a human being, any more than being short or tall or a male or a female could be. For some limited purposes it may matter whether one is tall or short--basketball or riding in horse races. But for nearly all other purposes for which people may interact, their race and color are of no significance at all.

Those, however, who think otherwise have a right to do so. Not a legal right, as things now stand in America, but a basic natural-moral right. Which is't the same as their being right or correct in how they think or act. But freedom entails the right of people to engage in malpractice, both personal and professional. Otherwise one simply isn't free.

Just compare this to freedom of the press--it means, among other things, that one may not be stopped from speaking and writing morally objectionable material. Those who think otherwise believe in censorship as does Egyptian President Hosni Mubarak, who said at one time that "There are freedoms, but they can't contradict our traditions; we must guarantee that freedom of expression agrees with our values." [From in Christian Science Monitor]

Those who support banning of racial and other immoral discrimination in commerce or elsewhere also believe that the government must guaranteed that freedom of association agrees with certain values. And those values may well be correct. That isn't the issue here. What is the issue is that when one makes immoral choices about who to interact with and whom to ostracize, this is not open to be banned, not among free men and women.

This issue is timely now that Democrats and mainstream Republicans have finally found something with which to demonize Rand Paul, the libertarian Republican who pulled off a win in Tuesday's primary election in Kentucky. When Californians attempted to resist federal regimentation of their associations with fellow Americans back in 1964, U. S. Supreme Court Justice Byron White helped cancel their efforts, arguing as follows:

The right to discriminate, including the right to discriminate on racial grounds, [would have been] embodied in the state's basic charter, immune from legislative, executive, or judicial regulation at any level of the state government [had Proposition 14 (Art. I, Sec. 26) not be held unconstitutional].

Justice White explained that the California law enacted via Proposition 14 "authorized private discrimination," even though only "encouraging, rather than commanding" it. But what of it? All sorts of bad behavior is authorized on the part of free men and women--their very possibly bad choice of religion, political affiliation, and bad personal choices of all kinds. That is exactly what is entailed in the notion of a right—its exercise, wisely or unwisely, is shielded from others' interference. Justice White made this evident, albeit disapprovingly, in the following observation: “Those practicing racial discrimination need no longer rely solely on their personal choice. They could now invoke express constitutional authority, free from censure or interference of any kind from official source". (But how could one freely make a personal choice to discriminate if government has the legitimate power to stop one from doing so?)

Yes, in America, which is now a full blown Nanny State, bad behavior on the part of adults is dealt with by governments as parents are authorized to deal with bad behavior on the part of their children. And Mr. Paul opposes this, to his credit.