The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The United States today is a sprawling country that contains around 325 million individuals of decidedly different views on large numbers of social and political issues. One challenge that faces our nation, like any other, is how to forge some national identity that will allow us to move forward together in ways that allow for disagreements at home and protect us against our enemies abroad. The common attitude toward this problem is to try to reconcile the irreconcilable by reaching agreement on the many, many issues that divide us as a nation. In my view that effort to create a top-down consensus by force is far more likely to result in an exacerbation of the very tensions we are trying to ease.
The more people argue about points that really matter to them, the clearer they come to understand the depth of their differences. An evangelical Christian will not agree to the proposition that religion is the opiate of the people, or that it is immoral to deviate from the Biblical commandments, including those that define marriage as a union between one man and one woman. A supporter of Black Lives Matter will not rest easily so long as he or she thinks that institutional sexism or racism disfigures the face of the nation, and that much of that is attributable to a form of white supremacy that needs to be suppressed by the relentless enforcement of the civil rights laws. And persons who are determined to eliminate poverty within our midst will have little patience with innovators and entrepreneurs who think that they can only thrive in a low tax, weak regulation environment.
My greatest fear for the future is that a constant insistence that all of these issues admit to some collective solution will drive the nation even further apart than it already is. To see why, it is important to return to fundamentals about the basic function of government. I start from the premise that government works best only on those issues on which consensus across different social and economic groups is highest. The first issue that meets that test is in my view the need to preserve order against the use or threat of force by private individuals against each other. There is no one who can prosper knowing that lives may be shattered and property taken at the whim of others. Even if most people in the world are law-abiding, it only takes on individual to wreak havoc, which is why the traditional preoccupation of Thomas Hobbes or a John Locke to constrain the use of force lies at the heart of proper government function. On that issue at least, we should be able to maintain a needed consensus. A similar approach explains why it is dangerous to put the monopoly power over essential facilities in the hands of a single person, to admit or exclude others at will. The origins of the nondiscrimination principle in our law does not begin with the modern civil rights movement. It begins with the notion that the owners of common carriers and public utilities had a duty to serve all persons equally on fair and nondiscriminatory terms. The mechanics way be difficult to execute, but the basic principle remains a sound today as when it was announced by Sir Matthew Hale in England in the late seventeenth century.
The modern civil rights law also put this nondiscrimination principle front and center but with this critical difference. No longer are the antidiscrimination rules used as an antidote to the public or private use of monopoly power. Now they are asserted to apply in competitive markets as well, notwithstanding this huge difference. Under competition, there are legions of other individuals who are prepared to render service if any given firm or individual is not. To force individuals to serve those whom they do not wish to do has little gain in this context, regardless of the reasons offered for that decision. Even straight racism, sexism or anti-Semitism has little social consequence if and only if the champions of those attitude cannot call on the power of the state to legislate their preferences into law. The worst forms of discrimination will have strong negative reputational effects on the businesses that practices. But they will not have that consequence if a substantial portion of the population is willing to continue to do business with those who hold those disfavored views.
A long time ago, Justice Harlan Fiske Stone announced that courts had to be especially zealous in the protection of "discrete and insular minorities" that could not protect themselves in the legislative process. American blacks tortured by systematic state segregation—an abuse of government monopoly power—was a group in desperate need of protection from state power. But the victory of the civil rights movement should not blind us to the dangers that remain. Individuals like Jack Phillips, the practicing Christian who refused out of religious convention to design a wedding case for a same-sex couple is as much in need of that protection from the modern "civil rights laws" as black Americans decades ago. It is wholly improper for the state to force him to engage in that conduct against conscience. The disappointed gay couple can obtain a wedding case from dozens of nearby merchants. Yet today Jack Phillips must face the intolerable choice to either abandon his religion or his business. The constant drumbeat against him creates an atmosphere of abuse and resentment—not to mention overt threats of physical violence—that no decent society can accept. The long-term principle of religious toleration is put at risk by the modern civil rights movement, precisely because it fails to recognize any fundamental limitations on state power. Remember state monopoly power can be a danger whether used by our enemies or our friends.