The US Supreme Court has agreed to hear the case of the Colorado baker who was forced, in
If someone went about hitting people over the head for religious reasons, he would certainly be violating their rights. But anything less than the use of physical force infringes no one’s rights. A baker’s refusal to make a wedding cake for a couple, whatever his reason, is no more a violation of their rights than if he refused to attend their wedding.
A statute like Colorado’s that requires a person to act contrary to his
religious beliefs does indeed violate his religious freedom. But freedom of
religion is not the proper grounds for the Supreme Court to disallow the
statute in question, because it is too narrow. An atheist might also find the
idea of homosexual marriage morally offensive, but the First Amendment’s
religious freedom clause would not be available to him.|
Nor does it make sense to try to construe this case as a violation of the baker’s “freedom of expression,” when there is a much more natural and logical argument to be made that it is his property rights that have been violated. The baker owns the bakery where he bakes his cakes. How he uses his property—and whom he serves there—should be his business and no one else’s.
The problem with this argument, of course, and the reason the baker and his lawyers are not employing it, is that it would upset a half century of civil rights legislation and jurisprudence. Barry Goldwater voted against the Civil Rights Act of 1964 because its Title II, which prohibited business owners from discriminating against customers on the basis of “race, color, religion, or national origin,” and its Title VII, which prohibited discrimination by employers on the basis of “race, color, sex, religion, or national origin,” constituted violations of the property rights of business owners and employers. Goldwater was right, but he paid a price for it. The baseball player, Jackie Robinson, called him “a hopeless captive of the lunatic, calculating right-wing extremists.” Goldwater lost to Lyndon Johnson in a landslide that November.
It is not hard to see the roots of today’s political correctness in the Goldwater episode. No politician today would dare question the rightness of the Civil Rights Act of 1964. But our failure to defend the institution of private property will be our undoing.
Property rights are the quintessential American right.
Freedom of religion and freedom of speech are individual rights. The first says the individual’s right to think as he chooses takes precedence over whatever “the people” may want. The second does the same for his right to communicate his thoughts. But both depend on the existence of property rights. Try to imagine freedom of religion in a country where all the land and buildings were publicly owned—this as America goes about banning religion from public places; or imagine freedom of speech in a country in which the government owned all the means of communication.
Property rights secure the individual’s freedom to act according to the dictates of his own mind. Yet today we find ourselves in the curious position of defending the individual’s rights to think for himself and to communicate his thoughts freely, but of denying his right to act as wants. Instead, we subordinate the individual’s right to use his property as he chooses to the needs of society. We are losing touch with our individualist roots. We risk losing a great deal more in the bargain.
America’s foundational principles of the rule of law and equality before the law are premised on the primacy of the individual. Both embody the idea that one’s family background, one’s race, one’s religion, or any other such affiliations are irrelevant where the law is concerned; one stands before the law not as a member of a group, but as an individual.
The NSA’s spying on Americans, although widely criticized as a violation of their rights of privacy, was actually a violation of the property rightsThe NSA’s spying on Americans, although widely criticized as a violation of their rights of privacy, was actually a violation of the property rights of the cell phone carriers who owned the phone records that the government was, in effect, confiscating.
But nothing illustrates so clearly the precarious state of our freedom as does the government’s takeover of one seventh of the private economy under the aegis of Obamacare. Such an annihilation of the individual’s rights to look after his own health, to contract with any doctor he chooses, or to forego the purchase of health insurance altogether, would be unthinkable in a country with a proper respect for property rights. (President Obama’s closing down of the coal industry by executive fiat ranks a close second. And Attorney General Jeff Sessions’s recent decision to expand the use of civil asset forfeiture, which often involves confiscation of the property of persons convicted of no crime,
reminds us that the Democrats have no monopoly on the dismantling of our property rights regime.)
Since the the 1960s, Americans have fought a losing battle to protect their liberties from a burgeoning welfare state and an ever more intrusive regulatory state. One reason we have been losing is that we have chosen to forego an indispensable weapon in this battle, property rights. We cannot save this republic without restoring the right of private property to its proper place in our Constitution.
Tom McCaffrey is the author of Radical by Nature: The Green Assault on Liberty, Property, and Prosperity