One of the bete noirs of the law school jurisprudence class is Herbert Wechsler's "Toward Neutral Principles of Constitutional Law", which argued against civil rights on the ground it interfered with free association rights.
I fear this is making a comeback, Right and Left. 1/
I fear this is making a comeback, Right and Left. 1/
Wechsler's argument was if the right of free association meant anything, it meant that you couldn't be forced to talk to, have dealings with, do business with, or otherwise interact with people whom you did not want to associate with.
It has rightly been mocked for decades. 2/
It has rightly been mocked for decades. 2/
Nowadays, on the Right, under the guise of "religious freedom", people are making breathtaking free association arguments, which imply that almost any business forced to do business with a gay person or hire a woman using contraceptives has their freedom infringed. 3/
Meanwhile on the Left, efforts are being made to push Internet companies, booksellers, and media companies to not do business with people who have right wing views, especially on gender issues, again asserting this is a fundamental free association right of a private business. 4/
The thing is, Wechsler was wrong. People who do business aren't exercising strong free association rights. They are making money. Nobody thinks they are endorsing everything they do business with. And really, the economy runs best when services are available to everyone. 5/
It was a bad argument in 1959, was a bad argument in 1971 and 1986 when Robert Bork repeated it, and is a bad argument now. People have strong rights to INTIMATE association (in personal lives) and to practice their religion. But open a business and you should be open to all End/
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