by Gerard Emershaw
Human beings possess natural rights to life, liberty, and
property. The right to liberty includes freedom of speech and freedom of
religion. The right to property involves a bundle of rights including the right
of possession (the property is owned by the title holder), the right of control
(the owner controls the property's use), the right of exclusion (the holder can
deny people access to the property), the right of enjoyment (the holder can use
the property in any legal manner) and the right of disposition (the holder can
buy or sell the property). These natural rights are protected by the Bill of
Rights of the Constitution.
It is obvious that human beings have a natural right to say
bigoted things provided that this hateful and collectivist speech does not
involve threats or defamation. But does a property owner have the natural right
to exclude others from his or her property based solely upon the race,
religion, gender, sexual orientation, or the like of that other? Title II of the
Civil Rights Act of 1964 states:
All persons shall be entitled to the
full and equal enjoyment of the goods, services, facilities, privileges,
advantages, and accommodations of any place of public accommodation, as defined
in this section, without discrimination on the ground of race, color, religion,
or national origin.
The Act defines ‘public accommodation’
broadly to include hotels, motels, other places of lodging, restaurants,
cafeterias, lunchrooms, lunch counters, soda fountains, other businesses
selling food for consumption on premises, movie theaters, concert halls, sports
arena, stadium, etc.
Former Congressman and presidential
candidate Ron Paul and Senator Rand Paul have both been criticized for comments
casting doubt on Title II. While progressives savor the possibility of
pillorying anyone who has a good faith objection to any civil rights
legislation, the question which arises is important. If a human being has a
natural right to liberty and to property, does not he or she have the right to
exclude others from his or her hotel, restaurant, movie theater, sports arena,
etc. for any reason? Under the Constitution, government entities have no right
to discriminate on the basis of race, color, religion, or national origin. But
nothing in the Constitution seems to prevent private actors from doing so.
Consider the following array of
cases. An African American woman who was gang raped by white supremacists and
whose parents were murdered by a Klu Klux Klan bombing decides not to allow
whites to eat in her diner. An elderly woman whose family was murdered in a
Nazi concentration camp decides not to allow Germans to stay in her hotel. A
man whose wife was killed in the World
Trade Center
on 9/11 decides not to allow Muslims to watch films in his movie theater.
One could ask why these former
victims should have to face those who remind them of their victimizers. Of
course this attitude is collectivist and irrational, but PTSD, trauma, anxiety,
etc. are not rational disorders. This does not stop them from plaguing the
psyche of many who have been victimized.
While the grey-bearded patriarch
Phil Robertson of A&E’s wildly successful TV program “Duck Dynasty” has
been in the news for his suspension over allegedly homophobic statements, his
potentially racially insensitive statement received far less attention in the
media. Robertson said
about growing up in Louisiana
prior to the Civil Rights Movement:
I never, with my eyes, saw the
mistreatment of any black person. Not once. Where we lived was all farmers. The
blacks worked for the farmers. I hoed cotton with them. I’m with the blacks,
because we’re white trash. We’re going across the field.... They’re singing and
happy. I never heard one of them, one black person, say, ‘I tell you what:
These doggone white people’—not a word!... Pre-entitlement, pre-welfare, you
say: Were they happy? They were godly; they were happy; no one was singing the
blues.
Essentially, he is saying that African Americans were happy
before the Civil Rights Movement, and therefore, Jim Crow may not have been
that bad. Robertson clearly acknowledges a racial caste system. He was “white
trash,” therefore, it was appropriate for him to be with the African Americans.
Of course, it is clear what word would signify the African American analog of
“white trash” during the Jim Crow Era.
Despite Phil Robertson’s anecdotal evidence concerning the
limited experiences of his youth, there is no doubt that African Americans were
mistreated during the Jim Crow Era. The federal government, state governments,
and local governments all failed in defending the natural rights of African
Americans. The question is whether the violation of natural rights caused by
Title II is justified by over two centuries of mistreatment of people of
African descent in the United States.
Oprah Winfrey recently caused an uproar when she said
of older white racists: “Older people who marinated in that prejudice and
racism … they just have to die.” If Winfrey was wishing death upon these
elderly bigots, then that is wrong. However, it is not clear that that was what
she was doing. The way that attitudes regarding race, gender, religion, sexual
orientation, etc. become more tolerant is by bigoted generations passing away
and being replaced in positions of power by members of a younger and more
tolerant generation. Just as with science, society changes through massive
paradigm shifts caused by changing attitudes and changing demographics. There are
few George Wallaces. Few people see the error of their ways and go from being
vicious collectivist racists to tolerant individuals. Racist hate organizations
such as the KKK are on the wane because the most die hard racists in the
country are elderly or have died. Whether contemporary racists and religionists
who hate based upon skin color, religion, or sexual orientation know it or not,
they are a dying breed.
In many ways, the point of whether Title II is justified is
moot. For the most part, it is no longer needed. The question is whether it was
needed. There is no doubt that many virulent racists who ran businesses simply
could not stand to follow the new Civil Rights legislation and sold or closed
their businesses. Others probably just grinned and bore it. Over time, there
were fewer racists of that ilk. Would intentional racism—as opposed to the
unintentional institutionalized racism of the progressive welfare state—have
dissipated as quickly without legislation such as Title II? Probably not. It would
likely have been a much more gradual process. However, the free market would
have helped. Some businesses would have continued to refuse to serve African
American customers. However, there would nearly always be rivals who wished to
take advantage of that untapped market and would happily cater to these
customers. Over time, these businesses would have a larger customer base and
thrive far more than their racist rivals. In short, discrimination by
businesses providing public accommodations would have gone the way of the dodo
eventually due to the pressure of the free market combined with the
inevitability that younger generations have been becoming more tolerant as a
whole.
Consider the case of homosexuals and the transgendered. In
general, members of this class have not had the same broad federal legislation
passed to protect their Civil Rights. Nevertheless, homophobia and bigotry
aimed at the transgendered is slowly but surely disappearing. Regardless of
what those like Phil Robertson scream while holding a Bible, such collectivist
homophobes are a social evolutionary dead end. Of course, why Christians do not
take what Christ—who one would argue is the CEO of Christianity—says to be more
important than what some more obscure Old or New Testament text says is
unclear. “Judge not, that ye be not judged.” “He that is without
sin among you, let him first cast a stone.” “A new commandment I give
unto you, That ye love one another; as I have loved you,
that ye also love one another.”
The conclusion here is that Title II of the Civil Rights Act
of 1964 should have been ruled unconstitutional. It is violative of the natural
rights to liberty and property. While this unconstitutional law did quicken the
pace at which overt racism within the realm of public accommodations dissipated,
it is wrong for the government to violate any natural right. Even if that
natural right is the right to do something distasteful and bigoted. It may very
well have taken decades longer for this positive turn of events to occur in the
absence of Title II. Fortunately, it is all merely a theoretical argument now.
