This page was last updated on August 10, 2015.
Before I proceed, I need to mention I’m not a lawyer. I can read, however, and English is my first language. I also don’t do creative reading.
Government rightly must not discriminate against or in favor of anyone based on things like age, ethnicity, religion, sex, skin color, and so on. When applied to parties in a completely private-sector business transaction, however, are non-discrimination laws constitutional?
The U.S. Constitution defines how the federal government should operate and its interaction with the states and the people. The Constitution does NOT define how the people must interact with each other. To make sure the authors’ intent was not misunderstood, they added the Ninth and 10th amendments. The Ninth Amendment states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The 10th Amendment states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved for the States respectively, or to the people.” The original Constitution plus the Bill of Rights scream limited government, at least at the federal level.
The Pennsylvania Constitution is similar. Article I, Section 25 (Reservation of Powers in People) states, “To guard against the transgressions of the high powers which we have delegated, we declare that everything in this article is excepted out of the general powers of government and shall forever remain inviolate.” Article I, Section 26 (No Discrimination by Commonwealth and Its Political Subdivisions) states, “Neither the Commonwealth nor any political subdivision thereof shall deny to any person the enjoyment of any civil right, nor discriminate against any person in the exercise of any civil right.” Neither this provision nor any other says anything about one person or business discriminating against or for another person or business.
Going back to the U.S. Constitution, too many people think the Constitution’s Commerce Clause [Article I, Section 8 (Powers of Congress), clause three] gives the feds the power to tell individuals and businesses with whom they must do business. It does not. This provision states, “[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Article I, Section 9 (Limits on Congress), clauses five and six state, respectively, “No Tax or Duty shall be laid on Articles exported from any State” and “No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.” It’s fairly obvious the intent of these provisions is to keep the states from getting into interstate trade wars, not to insinuate the federal government into every aspect of commerce. Regardless, our courts have been abusing the Commerce Clause for a very long time, meaning some clearly unconstitutional laws are deemed constitutional.
To summarize, if the Constitution (whether U.S. or PA) does not delegate a given power to government, that level of government cannot make laws exercising that power. Therefore, any law exercising a power not granted by the Constitution is unconstitutional and thus is illegal.
The Civil Rights Act of 1964 is an example. Title I (Voting Rights) is constitutional because it applies only to federal elections. Likewise, Title VI (Nondiscrimination in Federally Assisted Programs) is constitutional because it applies only to programs using federal tax dollars. Titles II (Injunctive Relief against Discrimination of Public Accommodation) and VII (Equal Employment Opportunity) are unconstitutional because they apply to parties in a completely private-sector business transaction. The titles also only prohibit discrimination based on “race, color, religion, sex, and national origin.” What about discrimination based on club membership, eye color, ideology, political party, and so on? Further, these titles apply to only one party of a business transaction, the vendor or employer. The customer/employee can discriminate against or in favor of a business without penalty.
That takes care of the law, but what do I believe? It would never occur to me to turn away a customer/employee based on things like age, ethnicity, religion, sex, skin color, and so on. That’s how my parents raised me. On top of that, it would be a stupid business decision with or without non-discrimination laws. After all, I’d not only lose the business of the customers I turned away, I’d lose the business of other customers and potential customers/employees who disagreed with my policy.
I’m sure some people will say this position is easy to take for a blue-eyed white guy who never knowingly experienced discrimination. Perhaps, but I don’t need to be a victim of drunken driving, murder, theft, and so on to know those acts are wrong.
That said, shouldn’t I have the right to choose (“choice,” as leftists would say) with whom I will do business? Yes. Let’s go to another right for an example. Should government deny a person freedom of speech because someone else doesn’t agree with what he says and writes? Freedom isn’t easy and means we must tolerate some things we don’t like.
“Religious freedom restoration” acts (RFRAs) exist solely because government enacted laws it had no power to enact. If we adhered to the U.S. Constitution, there would be no perceived or real need for RFRAs. We’ve taken something that should be very simple and turned it into a dog chasing its tale, or a Rube Goldberg machine, except Rube Goldberg machines accomplish their stated goals.
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