The Bork Is Back

You may recall that Ted Kennedy engaged in the least civil act in the known history of human discourse by accurately describing Robert Bork’s history of publicly stated views. One of those views was his argument that the Civil Rights Act was unconstitutional because it violated the 1st Amendment. Via Edroso, I see that this view is back at Reason, accompanied by preemptive self-pity that could have come from Bork himself:

Libertarians who believe that hiring policies – even discriminatory ones — fall under the First Amendment’s “freedom of association” provision may end up getting lumped in with the religious right on this one (not that this is a new thing).

Well, first of all, people who make this argument are correctly being lumped in with the religious right because when people are advocating public policy their motives are irrelevant. I don’t know why Robert Bork was on the wrong side of every civil rights issue when it mattered; what’s relevant is that he was. (George Wallace might not have been the white supremacist he played to get elected, either. Who cares?)

But the bigger problem here is that the argument that all civil rights legislation, state and federal, violates the First Amendment’s freedom of association requirement is transparently wrong. It’s important to note the ENDA applies only to businesses of 15 or more people. The idea that when Wal-Mart engages in gender discrimination it’s like a 12-year old with a “no gurlz allowed” sign on his fort is absurd. When large for-profit business have discriminatory practices, they’re not engaged in personal expressive acts.

Incidentally, most of the people who make this argument (like Bork) consider themselves to be “originalists.” I, for one, would love to see evidence the the First Amendment was originally understood as eliminating common law requirements that public accommodations serve people on equal terms.