It Is Dangerous to Be Right When the Government Is Wrong - Andrew P. Napolitano [38]
Conclusion
The most frightening aspect of recent restrictions on speech is not the loss of our ability to speak, publish, and hear what we wish, but the fact that these are mere symptoms of a fundamental flaw in American political culture: We no longer believe that the government exists to serve our needs as individuals and members of a community, but that the government is our master which is able to determine for itself what is in our best interest, unbound by any constraints. No one seriously believes that granting the government the ability to hack into our e-mail accounts (as the Patriot Act does) is truly in pursuit of American liberty. However, what people do believe is that there is nothing fundamentally illegal or unnatural or unconstitutional about granting government such a blank check: Although these policies may be “misguided,” folks today believe they are not in contravention of the Natural Law per se.
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With such a view, we are one tenuous showing of necessity away from becoming complacent with such illegitimate commands, as occurred with the Iraq War (few seriously challenged the lawfulness of the war, but merely whether it was militarily necessary). What is needed is not merely greater accountability, propriety, or guidance on Capitol Hill, but a seismic shift in the way Americans think about the constitutionally mandated role—and contours—of government. Anything less will accelerate our eventual path to serfdom.
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Chapter 4
I Left My Rights in San Francisco:
The Freedom of Association
The notion of a gym being sued for declining to hire a fat aerobics instructor sounds more like a South Park episode than reality.1 However, Jennifer Portnick—a 5-foot 8-inch, 240-pound woman—has gone and done it. Ms. Portnick applied to become an aerobics instructor at Jazzercise, a private gym in San Francisco that markets itself as “the world’s leading dance-fitness program.”2 Jazzercise chose not to hire her, citing its company policy: Instructors must have a “fit appearance.”3
Ms. Portnick took her case to the San Francisco Human Rights Commission, which enforces the City’s ordinances, basing her argument on hyper-sensitive San Francisco’s “fat and short” ordinance; the law forbids employers from discriminating on the basis of height or weight. In the end, the Commission enforced San Francisco’s anti-discrimination law in favor of Ms. Portnick, and as a consequence, the government forced the gym to hire the 5-foot 8-inch, 240-pound woman as its newest aerobics instructor at Jazzercise.4
Does the government own Jazzercise? Does the government work in Jazzercise’s HR department? Of course not; the state is grossly overstepping its authority here. The government does not have the right to tell Jazzercise who it can and cannot hire. The government does not have the right to intrude on a private business owner’s right to run his business as he pleases. The government does not have the right to dictate to Jazzercise what is (and what is not) good business practice. All these decisions are solely the interests of the business owner and his or her team of advisors.
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This ridiculous San Francisco illustration aptly demonstrates how the government, without restraint, continues to violate the fundamental rights of free individuals and private business. In the case of Jazzercise, the state completely obliterates a private business’s fundamental freedom of association.
Freedom to Associate Also Means Freedom Not to Associate
The First Amendment of the United States Constitution guarantees the freedom of association. It states, “Congress shall make no law . . . abridging