This is the third and final segment of Stephen L. Hall’s Civil Rights post. If you need to refresh your memory on parts one and two, you can find them here and here. Thank you Stephen for this informative review of civil rights and their erosion of our freedom.
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“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Amendment 9, US Constitution. Paramount among those rights retained by the people is the Fundamental Right of Freedom of Association. More fundamental to the health and happiness of citizens and of a state than the Right of Privacy, Freedom of Association runs as a constant theme throughout the Constitution.
Several rights are given voice in the First Amendment, including the right to free exercise of religion; freedom of speech; freedom of the press; and the right of the people peaceably to assemble. All of these freedoms and rights are rendered meaningless if the government can proscribe and limit with whom those freedoms and rights may be exercised.
It is no freedom to speak freely only to a preselected audience. There can be no freedom of the press if the government can limit to whom those papers, articles or treatises may be disseminated. What freedom lies in the exercise of religion if you are prohibited from exercising that religion with other members of the same religion, or if one must exercise that religion only in the presence of those diametrically opposed to the tenets and beliefs of that religion. How can anyone exercise the right peaceably to assemble, if they are prohibited from associating with one another? How can such assembly remain peaceable if such people are forced to assemble with people opposed to them?
The Third Amendment to the Constitution states that the government may not force the Owner of any house not only to associate with, but quarter, soldiers in time of peace. The Fourth Amendment provides that the people have a right to be secure in their persons and houses. No person may be secure in their persons and houses if they do not retain the right to choose who may be admitted or refused entry into their presence and property.
“Civil rights laws” violate the Rule of Law and unconstitutionally impinges upon the Freedom of Association.
Historically, the Supreme Court established a doctrine of state sponsored segregation, “Separate but Equal” which meant a state could segregate by race, color, or religion, so long as it provided equal public accommodations to each group. In Brown v. Board of Education, the Supreme Court correctly ruled that separate was not equal in practice. The Supreme Court then promptly ruled incorrectly that public facilities must be integrated not segregated.
Our nation went from Forced Segregation to Forced Integration. The real social evil was never segregation or integration, but force. The government denied its citizenry Freedom of Association. “The segregated use of public facilities is not prohibited or condemned by the Constitution. It is the forced segregation of the facilities which is unconstitutional.” Coleman v. Aycock.
A citizen has the right to associate with others as they so choose. The government has no right to force an honest citizen to have discourse with a liar, a property owner to engage in commerce with a thief, an employer to hire and retain a shiftless lay about or any other unwholesome combination. Freedom of Association means nothing without the freedom to disassociate. Freedom of Association must mean that people have the option to self segregate just as they have the option to integrate.
It is a universal truth that the power of good over evil lies in the Freedom of Association. As the ancient axiom pronounces, “you are known by the company you keep.” Association with good people brings its own rewards; just as associating with bad people incurs its own costs. For example, if a man regularly associates with thieves, it is not surprising that he will sooner or later have something stolen from him. Employing the power of dissociation, people of an evil or dishonest disposition are forced to associate with people of a similar character.
If the government should force the honest man to live next door to a thief, then that man loses his freedom of association, and he shall suffer from not his own decisions, but suffers at the hands of an overweening government. Forty years of government policies such as subsidized housing, forced busing and gerrymandered districts aimed at forcing integration have had predictable results. Racial resentments and hostilities have not subsided as the resurgence in racist organizations attests.
Our current cultural context regarding issues of discrimination is inconsistent, hypocritical, and lacking any foundation in principled reasoning. Courts routinely refer to a history of past discrimination as a means to justify current discrimination; creating idiotic phrases like affirmative action or promoting diversity to justify blatant discrimination. The rhetorical acrobatics, evasions and delusions that courts have regularly employed to justify a political outcome rather than objective legal analysis have held those courts up to ridicule and contempt as well as adding to the general fear and hostility of baseless accusations by the Unprotected Classes.
Institutions have fostered racial and gender tensions rather than alleviating them because of concerted promotion of racial and gender politics over legal principle. Sitting in a Constitutional Law class, two female students felt perfectly comfortable pronouncing that it was fair to have an all girls school, but discriminatory to have an all boys school. In a Family Law class, a black student opines that it is ok for a black couple to adopt a white child, but unacceptable for a white couple to adopt a black child for cultural reasons. The blatant unapologetic racism and hypocrisy of these examples is completely lost on educators in our law schools.
In an effort to impose a moral judgment that discrimination is wrong rather than a legal determination based upon applied principles of what is the proper role of government and what should be left to the culture, the government has created an inescapable quagmire of irrational legal rationalizations. Some people are protected, but some are not, but we will still say that they are treated equally. Every person has freedom of speech, unless you say something discriminatory, unless you are a member of a protected class in which case you can’t be accused of discriminatory conduct.
The culture of hypocrisy runs much deeper in this arena than any other area of our society because we claim that discrimination as “an act akin to treason, undermining the very foundations of our democracy.” Allen v. State of West Virginia Human Rights Commission. Obviously this passage in the Allen case recklessly and foolishly bandies about words like treason; such reckless hyperbole discourages reason and inflames emotions.
By legislative and judicial actions, executive government agencies and agents have increasingly become immune from any and all liability for their blatant racism and bigotry in pursuing actions against innocent individuals, employers and businesses. Where is the victim of the government’s racist and bigoted actions to file a complaint? One can not file a discrimination complaint with the discriminatory agency; that would be foolish. As a state agency, they are immune from civil suit in Circuit Court. Victims are denied their day in court.
Ergo, the government immunizes and shelters state agents in their acts of discrimination at the same time those very agents prosecute civilians. The Fourteenth Amendment to the Constitution has been completely turned on its head. An Amendment, which explicitly restricts State action, in fact, does not restrict State action at all but is used to grant the State authority to restrict private citizen action. Authority to restrict private actions of a discriminatory nature appears nowhere in the Constitution, and has never been granted to the government.
“Tyranny is defined as that which is legal for the government to do, but illegal for the citizenry.” Thomas Jefferson.
A Constitution is of no import or meaning if it does not control and limit the actions of that government which it creates. Civil Rights Acts are Unconstitutional because they exceed the authority of government to regulate interpersonal associations on the basis of race, gender, religion, or other criteria. Absent Freedom of Association, the people have no ability to maintain and defend any other right, or advance any legitimate cause. We meet at this website, because the readers of this article so choose to associate with one another, disruptive influences are banned from commenting when the owner of the website does not wish their association, and no civilized government would prohibit such free interactions.
Freedom of Association and Equality before the Law are foundations of a free society. To the extent that any law, regulation or court decision violates these fundamental principles, that law, regulation or court decision undermines the foundations of the Republic and violates the Constitution. Any law which violates a citizen’s Freedom of Association must be struck down as Unconstitutional. Any court decision which impairs any citizen’s Freedom of Association, must be overturned.
