Founders & freedom of association

[Tom West]

Marty Lederman asks: "Am I missing something?  The founders'
opposition to the practice of slavery leads inexorably to the
conclusion that employers should be permitted to discriminate on
the basis of race/sex/religion/etc. in hiring their employees?"

I respond: Yes, you've got it just right. In the earlier
understanding, freedom in the private sphere generally meant
each person was free to associate with those he wanted to. That
was true for friendships, clubs, private gatherings, churches,
private schools, as well as places of employment.

For earlier Americans, workplace freedom was guaranteed not by
antidiscrimination laws, but by laws securing freedom of
contract. No one can force me to work for any particular
employer; nor can anyone force me to hire any particular worker.
As long as the market remains free, everyone will be able to find a
place to work or start his own business.

Today's view is different. We view businesses not as private
associations but as a "public trust," as they used to say in the
New Deal. The consequence is that every workplace in America
has become increasingly politicized, as the fads blowing through
the political world are coercively imposed on employers.

In the older view, employers could of course fire workers for any
reason, including things they said either at work or away from
work. But government was not allowed to coerce employers into
firing workers that it (government) disapproves of (e.g.
harrassment law). Nor was government allowed to coerce
employers into hiring workers that it (government) favors (e.g.
"civil rights," i.e., preferential treatment laws).

Today, you are allowed to associate freely with your fellow
Christians (or Jews or Moslems) in the workplace only if you can
demonstrate that your association is for "expressive" purposes--
e.g., a church.

My question is: why should we think it an advance for liberty
when we only permit certain narrowly defined exceptions to the
general rule, which is that government will not permit freedom of
association in the workplace?

Leslie Goldstein writes:  "I agree with Marty that none of this
seems to tie to West's claim about a right to engage in
discrimination (Frederick Douglass had the answer on that one--
Freedom to decide whom one invites into one's living room is not
the same as freedom to decide who gets to participate on an
equal basis in the sphere of civil society, the public realm, which
Justice Washington knew as far back as _Corfield v. Coryell_
included the sphere of buying and selling [to the public] in the
public world of the marketplace [and buying a ticket on a train is
no less buying than buying a piece of property is]."

I agree with Leslie that one must distinguish between public and
private. I agree that "public accommodations," such as railroads
and hotels on public roads, are public accommodations that
should be legally compelled to be open to the general public. As
I understand it, this was part of the older common law. The right
to buy and sell property, sue and testify in court, etc., are also
civil rights that the earlier Americans would have agreed are
basic to liberty.

But how does one get from this to the position that a private
employer must hire the people that the government thinks best,
or that a private organization like the Jaycees must open its doors
to those the government thinks it ought to include?

Didn't Fredrick Douglass say, when asked what government
policy toward blacks should be, that there should be no such
policy, on the ground that laws should apply to all equally, and
that no group should be singled out by the law for special favors
or ill treatment?

Paul Finkelman wonders how I can be so certain that the
Founders "would support his notion of imposing one religion on
another.  Furthermore, it is curious that he [does] not have any
problem with allowing employers to discriminate on the basis of
Religion, which is surely as important as race in creating an equal
society."

This paragraph is a perfect statement of the difference between
the Founders' view of liberty and today's liberal position. For the
Founders, the purpose of govt was to protect civil and religious
liberty, meaning (at a minimum) that government should never
coerce people to associate in their private life with people whose
religious views they disagree with. Yet Prof. Finkelman thinks we
cannot have an "equal society" unless government compels
employers to be "secular." That is, to have an "equal society"
government must punish employers who want to hire and
associate with their fellow believers.

Tom West

Thomas G. West
Professor of Politics, University of Dallas and
Senior Fellow, The Claremont Institute
1845 E. Northgate
Irving, TX 75062
972-721-5278