Roger Pilon of the CATO Institute wrote an op-ed in the Wall Street Journal recently entitled “Whatever Happened to Religious Freedom?” That’s a good question, but it skates right on past the main issue…the disappearance of MOST freedom. Pilon discusses statutory law which outlaws discrimination for businesses considered “public accomodations” (based on Title 2 of the 1964 Civil Rights Act), but ignores the utter unconstitutionality of any such law.
Any business owner has the right to do business with — or to deny service to — anyone they choose, for whatever reason they choose. While I would never support any business that refuses to serve black people, for instance, I will always fully support that business’ RIGHT to do so. And I’m fine with anyone publicly calling out those businesses as racists (I certainly would), and working to convince other people not to patronize them. Even though I loathe racism, I fully support anyone’s right to be a racist…as well as anyone else’s right to criticize or shun them for being one.
But for the government (especially on the federal level) to step in and legally mandate that any business must accept any customer, then that is a direct violation of the personal property rights of the business owner. The federal government is strictly forbidden to intervene, by virtue of not being required to by any enumerated power.
Any statutory law that grants the federal government powers not specifically enumerated in the Constitution — THE legal precedent — is absolutely unconstitutional, and therefore illegal.
Also, we need to disabuse ourselves of this notion that we have “constitutional rights”…far too many people have succumbed to the misconception that individual rights exist only if they’re listed in that document.
People fall into the trap of thinking that the Constitution guarantees our rights by “listing” them…no, it actually guarantees our rights — which are innumerable — NOT by listing them, but by limiting the government’s ability to infringe upon them. The few individual liberties listed in the Bill of Rights are not the only ones we have, and their listing therein is not what guarantees them.
We are now in a situation that Alexander Hamilton feared would happen, which is why he argued AGAINST the inclusion of a Bill of Rights before the Constitution’s ratification. In Federalist 84, he said that a Bill of Rights “would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power.” (emphasis mine)
And Hamilton has been proven absolutely correct in his prediction that some people would use the Bill of Rights to claim more power for government than is specifically authorized throughout the entire Constitution. This despite the addition of the 9th and 10th Amendments, which addressed his fears by explaining clearly that individual rights are not limited to those enumerated (9th), while the powers of the federal government are strictly limited to those enumerated (10th).
The PURPOSE of the Constitution is to limit government, which is why it lists the very few required duties of the federal government. And if something is not REQUIRED by the enumerated powers, then it’s not ALLOWED. Anything that is not specifically listed is absolutely prohibited, by virtue of that omission (including redefining marriage).
We need to stop referring, for example, to our “1st Amendment rights” or “2nd Amendment rights”, as if their enumeration in the Bill of Rights is what guarantees them. They are guaranteed by virtue of the strict, purposeful limits placed on government throughout the Constitution, which confines government’s duties to ONLY those required by the enumerated powers…no more, no less.
We have completely lost sight of the fact that the purpose of the Constitution is to strictly limit government…NOT individual liberty.
— written on 22 July 2015