Posts tagged First Amendment

Column on Holding One’s Nose for Principles

Holding One’s Nose for Principles

Tibor R. Machan

One of the difficulties with standing on principle is that often one is defending them when they are practiced by bad people. Or when bad conduct is involved. In both kinds of cases one may have no sympathy at all for the specific but still finds it important to defend the principle, as when one defends sleazy journalists or artists against those who would want to censor them.

In England recently a couple of homosexuals won a court case that forces bread and breakfast places to rent to them even when the owners disapprove of homosexuality. And, of course, the argument advanced was all about public accommodations, as if opening one’s establishment for rent somehow committed one to accept every prospective renter. Why is that supposed to be a knock down argument for forcing renters to rent to anyone? Presumably because commerce is a public action.

Now by this line of reasoning censorship, too, should be allowed since most material that’s the target of it is sold or viewed in public places or places that are adjacent to public places. This is how imposing government smoking regulations and bans on restaurants and bars is legally justified–these places all open on to public roads or sidewalks, so they are “affected with a public interest,” a phrase first used in the USA by the Supreme Court in Munn v. Illinois (1877). Never mind that newspapers are often sold in kiosks and on street corners. But because of the explicit protection provided in the First Amendment to the U. S. Constitution, they are immune to government regulation. (This may not hold as statute in the UK but is more of a tradition there, while it is indeed a constitutional principle in the USA.)

Whatever the law is, the moral fact of the matter is that one’s sayings and writings may not be banned or regulated by anyone. Nor should one’s decisions as to one’s trading partners be subject to government regulation, however odious the terms are by which one accepts or rejects a trading partner.

Of course, in innumerable cases even if the government wants to regulate terms or trade it just cannot do so. One may decide not to purchase goods or services someplace because one knows that the owners are of a faith or political position that one opposes. Or they are of a race against which one is irrationally hostile. Millions of shoppers are free to engage in such unjust discrimination, while, of course, vendors are not (which, by the way, violates a cardinal feature of the rule of law, namely, that every one is equal under the law–shoppers and vendors alike).

Conceivably, however, having announced in an advertisement that one’s bed and breakfast place is available for rent does commit one to rent to any civilized person who comes up with the proper funds. Yes, that is a pretty good argument but in a free society it can be circumvented by making it clear, up front, that one does not accept certain people as prospective renters. So if you place a notice to that affect in the advertisement or by the entrance, there ought to be no objection to excluding those whom you don’t chose to deal with even if what you are doing is morally insidious.

The mere fact that one trades may not be used to subject parties to the trade to public micromanagement. After all, marriages are usually public–one must get a license–and so are many other noncommercial interactions with people. In a free society one must tolerate those who would deploy deplorable criteria for these as well as for doing business.

As much as it is a contemptible practice to reject homosexuals or blacks or whoever as prospective trading partners, it is even more contemptible to rob people of the liberty to determine whether they will do business with certain others. Yes, they need to be up front, otherwise by the standard of the reasonable person it is understood that anyone is welcome; yet if that is not one’s choice, however insidious that may be, one who openly opts out ought not to be made to embrace it. Let neighbors, colleagues, family, friends and others exert peer pressure or boycotts so as to change such people’s ways. But do not coerce them to do the right thing–it must be their free choice.

Unjustly discriminating against people isn’t assault or battery or some other kind of aggression, so the law must not interfere with it.

Column on Democracy and Liberty

Democracy and Liberty

Tibor R. Machan

The point deserves to be made over and over: majorities have no just authority to trump individual rights! That old dependable standby of the lynch mob is a perfect illustration of this. Just because the whole town wants to hang the suspect, it doesn’t follow that it would be right to do so. The sheriff will defend the process due the accused because justice demands it. Why? Because no one may be punished or indeed imposed upon without it first having been demonstrated that the punishment or imposition is justified, deserved, or warranted.

Of course, this line of thinking takes it as a fact that individuals and their basic rights matter most than the popular will. Yet that should not be very difficult to grasp. So another old saying has it wrong–50 millions frenchmen can indeed be wrong! Millions of Nazis and communists and people around the globe with all kinds of superstitions can be and are wrong.

However, if one is wrong within one’s own sphere of authority, on one’s own property for example, or in one’s own religious or philosophical convictions, that’s no one else’s business to fix except perhaps one’s best friend or a family member who cares and would nudge one in the right direction. But being wrong is an individual right! The US Constitution attests to this with its First Amendment which certainly protects everyone who may be wrong about religion or other matters of belief.

Individual rights apply to all, including, especially, to those in the minority. In a bona fide free country one is free to be and do what one choses provided this doesn’t impose on others something they do not deserve coming to them. So when someone doesn’t want to carry health insurance, that is something he or she has a perfect right to do. (The example of car insurance is a bad one since the roads are government run, so the government may make the rules for who may or may not use them. One’s body and health doesn’t belong to the government!)

A few years ago the journalist and Newsweek International’s editor Fareed Zakaria published a book, The Future of Freedom in which he worked out a pretty good set of criteria for which countries are liberal and which are illiberal democracies. I think he was too easy on some topics so he allowed for a lot more democratic meddling in people’s lives than is justified, morally or politically. Nonetheless, the distinction Zakaria worked with is a very instructive one. When democracy intrudes on individual liberty, it is wrong–it amounts to mob rule, period, however civilized it may appear to be. But when democracy operates without such intrusiveness, it is a permissible method (though not always the soundest) for making decisions in small or large groups.

The American Founders identified every human being as equal in respect of having certain unalienable rights, among them to life, liberty and the pursuit of happiness. This pretty much amounts to the best guide as to what may not be done to the citizens of a country–their lives, liberty and their choice of what is important to them may not be voted on. It is for them to decide and no one else, other than as advisors or consultants or teachers. Certainly not as daddies or nannies, even if they are in the majority. As the US Supreme Court once ruled, “One’s right to life, liberty, and property . . . and other fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.” (U. S. Supreme Court 319 U. S. 62, 638)

It is in fact a quintessential feature of the American political tradition, this insistence on individual rights, something that irks so many rulers and their apologists across the globe and even here in the U.S.A. The fact that everyone has these rights is clearly the greatest bulwark against tyranny. Sadly, this element of the American political tradition has never been fully accepted even in America, let alone elsewhere, so one must constantly be vigilant in opposition to those who would ignore it, from the Right or the Left or indeed any circle of enthusiasts who want to ride roughshod over us.