It Is Dangerous to Be Right When the Government Is Wrong - Andrew P. Napolitano [44]
The government does not have the authority to tell an individual how to run his business—who he allows in, who he sells to, or how he manages his finances. After all, what is the difference “between a homeowner inviting the public (minus blacks and Catholics) to his Friday night parties and a businessman who invites the public (minus blacks and Catholics) to purchase his goods?”14 There is no difference whatsoever. We may not agree with this business owner, but the government must defend the individual’s right to run his business the way he chooses. It is his property and his business. This concept is grounded in private ownership rights, elemental tenets of the purpose of government in a free society, and the natural freedom of association.
Moreover, these laws become even more invasive because it is so difficult to determine if someone had the actual intent to discriminate. To address this difficulty, enforcers of the law devised the following rule: Lack of diversity in the workplace (or amongst customers) creates a rebuttable presumption that discrimination has occurred. In other words, once this lack of diversity has been documented, the burden is on you, as the employer, to prove that you did not in fact discriminate. Ironically, an employer could avoid these types of lawsuits by doing precisely what the Act forbade: Discriminating. All you would have to do to achieve a diverse workforce is to hire people on the basis of their race.
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More pragmatically, Congress lacks constitutional authorization to regulate private enterprises which do not participate in business across state borders. The Civil Rights Act was passed under the auspices of the Commerce Clause, which expressly grants Congress only the power to regulate interstate commerce, that is, commercial activity that takes place in more than one state. The difficulty with the Civil Rights Act is that the vast majority of enterprises it regulates are small, local outfits which have no intention of expanding the scope of their businesses beyond their towns, much less their states.
In order to uphold the constitutionality of the Civil Rights Act, the Supreme Court has expanded its reading of the Commerce Clause to encompass nearly any activity (indeed it is difficult to envision an activity it would not reach). Take, for example, the case of Katzenbach v. McClung (1964). Katzenbach involved a small barbeque restaurant in Birmingham, Alabama, which had refused to seat African American customers. About half of its food was purchased from an in-state distributor, which had in turn sourced that food from out of state. Nearly all of its customers were locals.
The Supreme Court nonetheless held that the Civil Rights Act was constitutional as applied to that restaurant, due to its indirect sourcing of food from out of state. Because racial discrimination could lessen the total amount of food sold, meaning less business for out-of-state food sellers, Congress had a “legitimate” interest in eliminating this economic “burden.” As an initial matter, it should be clear that securing additional business for out-of-state enterprises was certainly not Congress’s motivation in passing the Civil Rights Act (at least one should hope not); the Supreme Court is effectively “inventing” a rationale for the legislation. More importantly, this reading of the Commerce Clause has meant that Congress can regulate nearly any activity for any reason it chooses. Ask yourself the following question: How many states (and countries) were involved in producing the clothes you are wearing, the food you have eaten today—even the paper this book is printed on? With Katzenbach’s jurisprudence, we are no longer a government of limited powers.
This topic brought Rand Paul, M.D., into some controversy on MSNBC’s “Rachel Maddow Show” shortly after his 2010 Republican primary win for the U.S. Senate in Kentucky.