You Don't Reserve the Right

I'm sure that you've seen those signs that often hang in restaurants which read "We Reserve the Right to Refuse Service to Anyone". When you think about what the sign is saying it seems reasonable and unobjectionable. Private businesses should have the right to refuse service to anyone. Business transactions are voluntary participation in commerce between two willing parties, so if one of the parties is unwilling to enter into the transaction, for whatever reason, there is no business to be done. But do private businesses truly reserve that right?

Title II of The Civil Rights Act of 1964 made discrimination and segregation illegal in places of "public accommodations", such as motels, movie theaters and restaurants. It would seem, then, that the signs that hang in those restaurants are mistaken. Restaurant owners and operators do not reserve the right to refuse service to anyone, or at least not for any reason. But shouldn't they have that right?

The knee-jerk, emotional, liberal reaction to such a question is that the legitimacy of any piece of civil rights legislation can not be called into question without racist intentions. Desegregation and being anti-discrimination are good things, therefore there is no argument that can be made against them. Nevermind that the Civil Rights Act of 1964 has eleven different title sections, and the only Title that anyone ever questions is Title II. Meaning that 90% of the Act everyone agrees is an appropriate, good law. The only question is whether there is Constitutional warrant for the federal government to dictate to private businesses -- absurdly denominated 'public accommodations' in the Act -- who they must enter into business transactions with. The answer is that there clearly is no such Constitutional provision and, just as clearly, such a provision is expressly forbidden by the Constitution. Title II doesn't represent an expansion or recognition of anyone's duly owed Constitutional rights, but a restriction thereof.

Private business owners have the right to determine who they wish to do business with; patrons of businesses do not have the right to force businesses to do business with them; and the federal government does not have Constitutional authority to pass laws that would restrict the rights of businesses in such a way, as that falls outside the purview of the federal government, and would fall under the jurisdiction of the states per the 10th amendment.

So how did the law pass if it's unconstitutional? This happens often, and as is often the case in the past 50 years, it's due to the Commerce Clause and the absurdly broad interpretation of that clause in the courts. The 'logic' (if you can call it that) goes: Congress has the right to regulate interstate commerce, those businesses are engaged in interstate commerce, therefore Congress can impose moral standards on private business owners. This same absurd reading of the Commerce Clause has resulted in the conclusion that a man growing a crop on his private farm -- which he intends to use solely for his own consumption -- falls under the regulations of the federal government because his growing-and-not-selling the crop affects supply and demand, which in turn affects interstate commerce and therefore falls under the authority of Congress to regulate.

It's difficult to make a passionate argument whose practical application is pretty limited. There are not many businesses in the world today that really have a problem with the Civil Rights Act, and actually have strong economic incentives not to refuse service to people on the basis of race anyway. Still, this is a creeping tyranny. I don't believe that every slope is necessarily a slippery one and I'm not an alarmist. But the Constitution is the foundation of our Republic and this is just one of many ways its being trampled on by every branch of government.

Restaurant owners should reserve the right to refuse service to anyone. They should reserve the right to be racist. And we should reserve the right to boycott them and take our business elsewhere.