On Monday's brilliant episode of The Bob and Abe Show, which you can find right here, we discussed the controversy that was ginned up last week when Rand Paul went on the Rachel Maddow show and shared his views on the constitutionality of one part of the 1964 Civil Rights Act.
Miraculously, this has generated an e-mail from a listener--a listener that neither Abe nor Bob has ever met! Here's the e-mail, from a gentleman who is called Jeff:
The article at the link below argues the libertarian case and Rand Paul's position better (or maybe just clearer) than you did. While I agree with much of the article, I disagree with your arguments in the Rand Paul podcast. From the article: "Ideally, government’s role is to foster an environment in which individuals can pursue happiness in any manner they please — provided they do not impede other individuals’ rights to do the same." The key word in that sentence is "rights". What is the definition? It obviously varies from person to person. For example, I would say that I have a "right" not to be discriminated against on the basis of race, gender, sex, etc. by any public or private party.
Bear with me for a second. In an extreme discrimination hypothetical, a green humanoid person would be discriminated to such an extent that the person would not have access to private businesses (non-profits and for-profits). Now lets go back to the quoted sentence above and apply it here. How can a person pursue happiness in any manner he pleases if that person is denied access to private enterprise? Imagine if you had to grow or kill all your food. Imagine if you had to supply your own water, build your house...the list goes on. My point is that my right to access the free market as a consumer or producer trumps any right to choose which group of customers to serve.
As Jeff points out, the article that he links to does a helluva job outlining the libertarian principles at the core of Rand Paul's position. I highly recommend taking 5 minutes and giving it a read.
At the core of a lot of the more interesting discussions we've had on the podcast over the last year is a question that has been argued by many people through many ages. What, exactly, is a right? How one answers that question, and how one settles the constitutional issues that arise in corollary from answering that question, serves as the foundation upon which one builds a theory of the role of government.
That question, however, is of practically no consequence to a discussion within the framework of the US Constitution. Listen:
The Constitution of the United States rather succinctly defines the powers granted to the federal government. Our federal government is given its authority by the Constitution, and the government's power is strictly limited by that document. Any action taken by government that is outside the boundaries of power and scope established by the Constitution is therefore illegitimate.
It is important to note that the Constitution places absolutely no burdens, limitations, or boundaries on the action or inaction of citizens or any non-governmental institutions, associations, or entities of any kind. Absolutely none whatsoever. The Constitution was not designed to define or authorize or limit anything besides the scope of the federal government, and therefore has absolutely nothing to say about interpersonal interaction between or among non-governmental agents--including its citizens.
The Constitution only even recognizes the rights of private citizens inasmuch as it denies the federal government the power to infringe upon certain of those rights. It doesn't define or limit or authorize the rights of individuals--it says explicitly only what the federal government can and cannot do.
The Declaration of Independence, which has precisely the same binding legal authority as this here blog-post, says that humans have, among others, the right to life, liberty, and the pursuit of happiness. Neither the Declaration nor the Constitution codify these rights into law--they merely acknowledge the existence of such rights and establish that the federal government cannot legitimately infringe upon them.
Before you even go there, let's talk about the 14th Amendment, which made the logical--and constitutional--leap of applying the same limitations on rights-infringement upon the state governments as already existed at the federal level. It said federal and state law must apply to all citizens equally, and that the rights of the people cannot be infringed upon without the due process application of those laws.
Again, even in the oft-cited 14th Amendment, the Constitution is only laying out the specific and limited powers of government, and not the rights of citizens, or the interactions among those citizens. The Constitution was written in such a way that it compels absolutely nothing of a citizen--it merely limits governmental power. If you can find a passage that suggests something to the contrary, send it my way. More to the point, the Constitution has absolutely nothing to say about the rights of citizens as they relate to other citizens. Not a word.
Therefore, a person may believe that he has the right to not be discriminated against by his fellow citizen for any of an endless number of specific classifications--race, religion, height, weight, acne, intelligence--and that person may well have a moral claim, but he certainly doesn't have a Constitutional claim.
This is the heart of why Rand Paul is 100% correct from a Constitutional perspective. The Constitution does not give the federal government the legal authority to regulate the private affairs of the citizens--it merely places limits on federal power.
The genius of the Constitution is as apparent in the silence between the notes as it is in what it actually says. As Jeff said, the definition of rights is likely to vary a great deal from person to person. The Constitution allows for these individual differences by utterly ignoring the problem. I'll say it in one final way--the Constitution is about the relationship between government and citizen, not citizen and citizen.
Hopefully we can agree that we are not, therefore, having a discussion of Constitutional import. I only make such a big deal of it because that is the crux of what got me so upset about this whole controversy in the first place--Rand Paul was giving his opinion on the Constitutional legitimacy of one part of the Civil Rights Act, and all anyone wanted to hear was that he thinks discrimination is totally cool, despite his constant cries to the contrary.
Moving right along. Jeff's basic point, slightly rephrased, seems to me to be the following: if a producer wants the privilege of access to the free market in order to sell his goods or services, than that producer gives up the freedom to choose to whom he sells his goods or services. Along those same lines, how can an individual consumer pursue happiness "in any manner he pleases" if he is not given unfettered access to purchase goods or services from anyone he chooses?
But we can't very well call it the "free market" if a producer is required to do something he doesn't want to do in order to participate, can we? The consumer is presumably still given the freedom to choose from which producer he will purchase goods or services--why shouldn't the producer be allowed the same freedom to choose to whom he will sell? If the free market is to be truly free, producers and consumers must be allowed to choose with whom they will do business. The consumer's right to pursue happiness cannot trump the producer's right to pursue happiness, can it? Are they equal, or aren't they?
The consumer does not have a right to pursue happiness "in any manner he pleases" because that would imply that his rights extend so far as to encroach on others' exact same rights in the society. Put classically, an individual's right to swing his fist ends where another individual's nose begins.
How about a few illustrative stereotypes?
Should a Jewish delicatessen owner be compelled to sell sandwiches to a guy who walks in with a Swastika plastered across his forehead? Should a private hospital, owned and operated by the Catholic Church, be forced to provide abortion services? Should a black guy who owns a barber shop be required to provide haircutting services to a guy who walks in and pulls a Ku Klux Klan hood off his mulleted head?
No, of course not. The neo-Nazi can go buy his tuna with extra mayo on white bread from somebody who won't be morally horrified by his existence. The pregnant woman can go to a hospital or a clinic where there aren't nurses and doctors who believe that by performing said procedure they are committing themselves and their patient to eternal damnation. The KKK loser can get his cousin/wife to trim his bangs.
When an individual applies a rights claim to economic (or any other sort of) interaction with another individual, he is effectively making a concurrent claim that the other individual is duty-bound to serve him. This is a violation of the very right to which the claimant is appealing, and therefore invalid.
Allowing bigots the freedom to reveal themselves for what they are affords me the freedom to choose to not give them my business. If there is a restaurant owner who refuses to serve Latinos, I value my freedom to choose to eat down the street.
As I said on the show, morality can only really exist when people are free to be immoral. If a person is only "acting morally" because of an authoritarian dictate that commands him to, then he's not really moral--he's just an actor. Free society must abide private discrimination because a free society values liberty above all else--and liberty must be applied to all individuals in the same way. Coercion, even in the name of something so laudable (if illusory) as fairness, is antithetical to liberty and is precisely that which cannot be tolerated in a free society.