Is it Constitutional in America to Discriminate in a Business? An Internal Debate

Silverwolf cleared the decks of his internal Parliament, and presented to the tabula rasa MP’s the following question: Should it be legal and is it constitutional to discriminate, on whatever basis one wishes, in one’s business in America? For example, should it be legal for an American Citizen, of Turkish cultural background and ethnicity, to refuse to sell to American-Armenians, or not let them in his store, which is open otherwise to the general public?

Obviously, this was one of the key questions and objections in the Civil Rights Act of 1963, Few doubted that picketing in protest outside of a business was a legitimate exercise of Free Speech Rights as long as the thoroughfare was kept open to the flow of pedestrians, but was it legal to enter the premises and then sit-in, in effect crippling the owners ability to do business?

This was the question that tormented Silverwolf through the long, stormy, frigid nights of the winter of ’11. Tossing and turning in his wolf’s lair, Silverwolf debated with himself this key issue which is so weighty for American jurisprudence and political theory.

First off, if I can discriminate in whom I let into my private residence, why should I not be able to discriminate in whom I let into my business premises? The meateater, the Nazi, the hunter, the fisherman, the vivisectionist, and the Stalinist all pay taxes, but if I choose not to let them into my private residence or property, nobody cries foul or racial discrimination. So why should it be different for a business?

I put this question to the late Blue Dog, a bluedog Democrat. His snap answer was that businesses were there to serve the public.

Silverwolf chewed this over, but it seemed a little idealistic to him after a few hours mulling. Come on, businesses ain’t there to serve the public; they’re there to make a profit for the owners and stockowners, and they wouldn’t start it if they didn’t think they would materially gain from it (unless they were a Good Samaritan starting the business solely to serve the public, with no interest in any profits over and above those necessary for a rude self-maintenance — not your typical business owner in America). The businessmen’s interest in profit, to further their personal pleasures, was no different than my interest in my own personal pleasure in keeping the meateater, the hunter, and the Nazi out of my desmesne, even though the meateater, hunter and Nazi might all pay taxes that pay for police and fire protection that benefits me and my property, and from which they are excluded. If it’s fair for me to exclude them from my Residential Property, why is it unfair, and even immoral, for them to deny me access to their business property, simply because I’m a wolf?

This really puzzled Silverwolf, and he recalled that Senator Barry Goldwater had objected to the Civil Rights Act precisely on this point of business owners being able to have property rights over their business premises.

Then Silverwolf argued with himself against this business discrimination with the following argument: the business district in town in limited to a certain area; if businesses were allowed to discriminate, it would be possible for a block of racist business owners to effectively exclude everyone in an area from vital necessities and services which would, de facto, force them to leave the area. For example, if all the hardware stores and food stores in the business district of a rural town were owned almost exclusively by a group of White racists, they could in effect make it impossible for all the Black people in an area to obtain the food and building materials they would need to survive in that area, and no new Black entrepreneurs could come into the market because the White racists held a virtual monopoly on all the available business licences and rentals.

Now this problem bifurcates into two problems for the Libertarian, for his reply might be that zoning laws are anti-Capitalist restrictions on Free-Market activity, and in a Libertarian society one could set up a business wherever one deemed fit. This would in effect end the monopoly on business licences that occurs when a business district is created, and business permits are required to conduct trade, that blatantly Communist restriction on Capitalism which has been so miserably tolerated for so long in America. This ending of business zoning would mean that would-be Black entrepreneurs could set up shop wherever they willed, and the racist monopoly over business licences and premises would be smashed.

But here we come to another problem in the road. So far, we have only discussed discrimination in those businesses which front onto public thoroughfares, and let’s assume for the moment that such discrimination is illegal exactly because these businesses, due to their location, can be called public businesses which have a moral duty under some undefined natural law to serve all customers, regardless of race, religion or creed. But what if we postulate a business that does not front onto a public thoroughfare, a business which was contained completely within the property of a private landowner? Should the owner of such a business be free to discriminate on the basis of race or religion?

For example, say a Korean Supremacist opens a business on a 40 acre parcel of land he is fortunate enough to own in the midst of a major downtown metropolis. The parcel is divided into two 20 acre parcels. He operates a public business that faces onto the public street in which he does not discriminate, located on the front 20 acres, But on the back 20 acres, which at no point border public property, he creates a 5 acre business zone, enclosed entirely by the private 20 acres, to which he will only permit admittance to those he regards as racially pure Koreans, who share his Korean-Supremacist views. No Whites or non-Koreans or “Whitey-lover” Koreans are allowed in this complex of stores, and the stores only accept Korean Won in payment. Is such a store illegal under the 1963 Civil Rights Act?

At this point, a great Rothbardian White Light seemed to blind Silverwolf, although he had his eyes closed to give his eyelid muscles their usual afternoon nap. He suddenly saw the solution to his dilemma, but it proved not to be final.

The solution was actually very simple. What does it say on the money? A Federal Reserve note, legal tender for all debts, public and private. It was herein that the solution lay.

If a Federal Reserve Note is legal tender and a store owner on a public street (or in a public announcement like a newspaper ad) advertises something for sale in his storefront window, then the asking price of that good or service becomes a private debt publicly advertised, and any person with the requisite amount of federal reserve notes should be able to satisfy that private debt and obtain the good or service touted. In other words, offering something for sale in terms of Federal Reserve Notes requires that you accept those notes from anyone who offers them if the private debt was publicly advertised. Not to do so would violate the contractual conditions printed on the money.

So the real reason why it is illegal to discriminate on business properties but not on private residence properties is because the Federal Reserve Note is legal tender for all debts, public and private, and anyone in America who has these notes has a right to exchange them for any publicly advertised private debt.

However, what would happen if we had precious metal coinage, as is stipulated by the U.S. Constitution? Since this coinage would not be a Federal Reserve Note, (and the Federal Reserve itself would hopefully not exist at that point) then it seems to us that the argument we made above, for non-discrimination when it comes to the use of Federal Reserve Notes, might no longer be valid. And the same problem might arise if the store only displayed its prices in foreign currency or currencies, since these are not legal tender for all debts public and private in America.

So under current law, could business owners legally discriminate against customers if they only accepted gold and silver (and copper?) coins or foreign currency as payment for their wares?

This question remains unanswered, and Silverwolf is still as Libertarianly-puzzled as before. As to what the truth of the matter is, and if there is an unshakeable political reason why discriminating in one’s business premises is immoral, it remains unclear to him.

Hoooooooooooooooooooooooowwwwwwwwwwwwwwwww—Silverwolf

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