The Right to Discriminate In Business

“It is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own interest.”—Adam Smith, Wealth of Nations

notrumpSo a restaurant in Hawaii is refusing service to Trump supporters. Can’t disagree with that.  As a capitalist I believe that every business has the right to refuse service, and as an American who has actually read the Constitution I know that we have the right of free association (which means I can’t be forced to deal with people I don’t want to, sadly many people in power have not read the constitution). And as a sane human being with an understanding of ethics, I believe that Trumpkins should be shamed, shunned, and barred from all aspects of life by individuals and the private sector.

Regrettably the populist/fascist remains of the Republican party have forgotten that they’re supposed to at least be putting up a pretense of being conservative even if, at this point, there isn’t a single conservative fiber left in the organization. That’s right, conservatives are whining that businesses can’t refuse service.

This is just a little hypocritical, as I could have sworn that just a few months ago Republicans were upset that businesses were being forced to bake cakes for gay wedding when they didn’t want to. So I guess what populists want to discriminate against is legal but not against what they don’t want to discriminate against.  Kind of like liberals…oh I forgot that’s what the Republican party is now populism which is in reality nothing more than the big government power of progressivism, but guided by petty short-sighted self interest rather than stupid short-sighted guilt. (And no the liberals aren’t being hypocritical in banning Trumpkins, liberals never had principles to begin with and hypocrisy requires that you have principles to violate.)

But this still brings up the problem of how to actually deal with discrimination by businesses as the laws are still far from perfect.

The Power to Discriminate

So first let’s clear up a few things here. The power to discriminate still exists right now under law, it’s just in the power of government not the individual businesses…which is worse.

That right was taken away from businesses long ago by the government.  The case Plessy v. Ferguson which established legal discrimination, and thereby making Jim Crow legal, was upholding Louisiana’s Separate Car Act which required that whites and black have different train cars.  The private train company actually didn’t want the law.  They wanted to allow black and white customers to mix. Private business wanted to not discriminate. Why because more cars means more expenses and it means less tickets.  They didn’t want to discriminate because it was bad for business.  THE GOVERNMENT TOOK AWAY THAT RIGHT TO DISCRIMINATE.  And much of Jim Crow laws that followed again took away the right of individual business owners to discriminate…granted by the time of the Civil Rights movement law had become social custom (which is always the problem of bad law) but DON’T FOR ONE  SECOND THINK THAT PEOPLE HAD THE RIGHT TO CHOOSE WHOM THEY WOULD AND WOULDN’T SERVE BEFORE THE CIVIL RIGHTS MOVEMENT. 

Government took away that right long before the Civil Right movement. 

The problem is that instead of returning the right to the private businesses t he Civil Rights Act of 1964 and the subsequent Heart of Atlanta v US court ruling which allowed for the outlawing of discrimination based on race just changed the form of the government saying whom businesses could and couldn’t serve.  The problem here is not that it outlawed racial discrimination (something right thinking people would just hope civil society would do without the need for law, and left to it’s own devices and enough time capitalism would do this), the problem here is that it is the same evil the Civil Rights movement wanted to stop.  It took the government power to discriminate against individuals it didn’t like and turned it into the government power to discriminate against individuals that it didn’t like.  That the individuals changed from a racial minority to business owners who are clearly too stupid to run a business is irrelevant.  It is still the same evil government power to choose who you can and can’t discriminate against. Yes racists are terrible and if they all got Ebola I wouldn’t shed a tear, but as much as I hate them I do believe in natural rights and will defend even their rights.

Now certainly an argument could be made that a short term shift to counter the cultural change caused by the unconstitutional Jim Crow laws could be made (while in practice the argument that government caused the problem it’s government’s responsibility to fix the problem does hold some logical sense, although in practice it seldom works)…but if you were going to make that argument it should have come with a sunset date.  Sadly, most people are not deep or long-term thinkers and did not see they weren’t ending the evil, merely changing it.

The other problem with this power is that because of the  nature of giving the power to government, government is constrained by laws, rules, and regulations which can never fully account for the complexity of life (which is why you want to leave as much to the private sector as possible).

If you believe that a gay person has the right to demand service from a Christian business then you must either also believe that (A) a neo-nazi can walk into a Jewish deli and demand service or (B) that we will allow the government to pick and choose which types of discrimination are acceptable.

If you believe (A) then you are sick.  If you believe (B) you’re probably much like the person in A because that’s fascism.

If however you allow for business to choose whom they will serve you still have the power of public opinion and the free market (media, boycotts, competition) to either not go to them for service or have them driven out of the market.

So which is it?  Sick, fascist, or willing to use just means to get your way?  Now some will claim that this is a preposterous counter example that could never occur…but it already has.

You may have forgotten that there was a baker who refused to write anti-gay sentiment on a cake and then came under the weight of the same laws that banned Christians from refusing service to gays.


While the irony that liberal laws are being used against the ideas they were created is delicious…as with a baker who would refuse to make a pro-gay cake I have to support the baker who refused to make an anti-gay cake. A business has the right to refuse service at any time, for any reason and the market shall determine if their reasons are popular enough to stay in business or not. (Again I always question the business savvy of taking a stand on such minor issues, but I can also see the business argument of possible backlash from not refusing)

But the difference here is that I support both sides of bakers who want to refuse because I believe in free speech…will liberals also defend free speech or will they only defend speech they like.  Free speech is free speech for all speech, even the speech you will put all you effort into fighting.

The Right to Discriminate

Now as shown from the last section I clearly believe there should be a right to discriminate for private entities, individuals, and businesses.
But let’s go into why that should be a right. And this is based on three natural rights which happen to be enshrined in the Constitution: The right to free speech (and the freedom of thought that comes with that), the freedom of association (and the freedom to not associate that comes with that), and the right to property (and the right to deal with my property in any way I see fit that comes with that).  Two parts of the First Amendment and part of the Fifth.

You have the right to believe anything you wish.  You have the right to associate with anyone you wish.  You have the right to deal with your property however you wish.  So long as do not actively hurt another or harm their rights you have these rights.

Which means if you don’t want to sell to someone, even if it’s for the most idiotic and bigoted reasons you have that right.

To say you have to serve people of a different group means that you don’t have the right to buy or sell your property in the way you want.  Which would mean that you don’t have the right to property which is a natural right, not just a Constitutional one.  It would mean that you would be forced to associate with people in commerce that you did not wish to, which is a violation of the natural right of association—if two people don’t want to deal with each other they shouldn’t be forced to—even if one person wants to deal with the other, the other shouldn’t be forced to deal with the first person.*  To say that you can’t hate certain groups of people may be justified by reason, but the danger of giving that power to the government is too great that it will be used not in the defense of reason but against it, thus a government has not right to violate your freedoms of speech and thought to be an idiot.

These are rights.  Like all rights they can be misused, but they must be treated as sacrosanct because if we do not have them then we do not have the liberty to do what is right in our lives either.


Thus sense every aspect of the business the right of discrimination is itself a natural right the natural outgrowth of the sum of those rights, that is, discrimination in commerce.  So you can’t prevent discrimination without violating rights.

A Practical Solution

You know up until last year I would have said you over-estimated the number of racists in America.  Sadly the success of a fascist has shown I’m wrong there.  But I still do not believe transferring the right on who you can discriminate against to the government is any better.  So we do need to let businesses discriminate even if I am now horrified by how many would choose to use such a power for evil.

But there are ways to do it without letting the racists actually win.

Here is all you have to do, and it takes all the power away from government and bigots.

A business can discriminate against any person, color, creed, religion, orientation, or belief it wants…it just has to post it.  It has to post in detail which groups are not welcome.

Signs on the front door with three inch tall letter.  Signs by the counter. Has to take up the top 1/5 of every page on their web page.  Has to be expressed at beginning of any call to or from a customer.  Has to be on every advertisement. It has to be at the top of every application form for every prospective employee and told to applicants in every interview.  You can discriminate to your heart’s content…but you don’t get to hide the fact that you discriminate.

Yes this plan wouldn’t have worked back in the 1960′s but now you don’t have 80 years of government sponsored discrimination making it an institution.

If you don’t have it displayed you can’t discriminate against that group.  Not because the government has a right to tell you who you can serve but because by not posting you are engaged in the fraud of false advertising that you have a business open for the public.  And fraud has always been a crime. And rather than a civil lawsuit that can only result in monetary loss, fraud can come with jail time.  So in reality we have made it even worse for the bigots if they want to play the game of eating their cake and having it too.

Bigots being naturally cowards won’t dare to actually do it…and the few dumb enough to actually do it will find themselves out of business.  No one will want to be seen shopping there, no one will dare want that resume stain on their job history.

I have no problem with defending your first amendment right to be a bigot…but you don’t get to also have the benefit of hiding it.  One or the other.

And that way you can both have a business’ right to discriminate and not return to Jim Crow.

Everyone should have the right to discriminate based on their level of stupidity…

…and the great thing about a free market and free press, you will be driven out of business when you do.  People who are fired and/or denied service/jobs for these stupid reasons will go to the press, the press will tell the local area or the world if necessary what an idiot you are, and I have faith that most people will not procure business or services from you.

And if you fire the most qualified person for a job because they’re gay, guess what your competition will hire them and they will drive your idiotic business model to the ground.  And your best employees will also leave because they find you distasteful and have no desire to go down with your sinking ship. Being an idiot who cares about anything but ethics, effectiveness and profit is what ends businesses…thus are the blessings of the capitalist market left to its own devices that no one needs protection by the government.

*Some smartass is going to say, I have to associate with lots of people at my job that I don’t’ want to…to which I will respond, idiot, you chose to work there and choose to stay there.  You already choose that the money was worth associating with the person.  You’re not being forced to associate with them, you’re being paid to. Don’t like it quit.

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Categorised in: Conservative, Political

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