Everything You Know is Wrong (IV)

Today we descend into the morass that is individual rights. You can’t get far in today’s news without running into alleged right’s issues. NFL players kneeling during the National Anthem. Restaurateurs denying customers service based on politics. Neo-Nazis marching in the Capital. Talking heads often serve up these incidents as right’s issues; Face Book is full of smarmy posts claiming “rights” and directing those who disagree to get over it and shut up. Here is a dose of reality.

The rights in question are those in the Bill of Rights, the first ten amendments to the US Constitution. These rights limit the ability of the federal government to do things (“make a law respecting an establishment of religion”, for instance). Most of them deal with the rights of the accused (Forth through Eighth Amendments), while the Ninth is a catch-all stating there are more rights than those listed, and the Tenth indicates those powers not delegated to the federal government are reserved by the States and the people. An interesting point: these rights have nothing to do with citizenship. They are negative, in that they tell the government what NOT to do, or the amendments refer to persons, not citizens. Thus the Supreme Court has held that anybody on the territory of the United States has such rights (including terrorists, Nazis, and those here illegally)! The Fourteenth Amendment directed that the existing rights may be incorporated to the States, meaning (on a case-by-case basis) state governments (and local ones too) have the same limits when it comes to individual rights. So the federal (or state, or local) government cannot deny neo-Nazis a permit to march (“peaceably assemble” according to the First Amendment) despite the fact they are neo-Nazis. The government can regulate how and when, and place certain restrictions (e.g., no baseball bats), but that is all.

So the first question you have to ask is “is a government trying to deny someone something?” If the answer is no, then there generally is no right’s issue, right? Not so fast, my friends. The 1964 Federal Civil Rights Act articulated rights protecting individuals from discrimination based on race, color, religion, sex, or national origin. These protected classes of people cannot be discriminated against not just by government, but also by those offering public accommodation (bars, restaurants, taxis, etc). So now you have to look at whether the individual claiming a right’s issue is a member of a protected class, and was singled out on that basis, and was there a public accommodation. Thus it is okay to have a dress code requiring men to wear a tie in your establishment, as long as ALL men have to wear a tie (not just Asians, for example). Can you throw someone out of your restaurant because they are working for the White House? Yes, since political party is not a protected class. If you throw out only women from a certain political party, now you’ve done it, you have (arguably) violated their civil rights (sex is a protected class).

What about NFL players kneeling during the National Anthem? There is a Supreme Court case holding that the government cannot make persons participate in patriotic rituals (such as the Pledge of Allegiance), but that only applies to the government. Contrary to a certain President’s tweets, there is no government activity here. No one is coming to arrest the players, and they are free to kneel. Likewise, their managers or owners may decide to take action against them for doing so. Player contracts contain all kinds of behavior and teamwork clauses which let managers/owners fire them for all kinds of off-the-field issues. If the owners only disciplined African-American players, that might constitute a civil rights violation. As it stands now, there is no rights’ issue here. Want to make this issue really hard? What if you went to a game with a sideline pass, and you decided to join in by kneeling during the Anthem? You are a customer, not a player, but your ticket has terms and conditions which might enable the owner to throw you out for misbehavior. I doubt they would ever do this, as it would be needlessly antagonizing their own fans. Just showing how complicated this can be!

Finally, people with disabilities have similar protections, and during the Obama administration, the federal government argued that the protections afforded to sex also extend to sexual orientation and gender, although this contention was never determined in court and has been abandoned by the current administration. Not to mention, states cannot reduce or constrain  individual rights, but they are free to add to them, so in some cases actions which are permissible under federal law are deemed illegal discrimination under state law. Clear as mud?

Let’s review. If you come to my house for a party and crack a Notre Dame football joke, I can order you out, and if you do not comply, I can call the police and have you arrested (for the sake of this example, pretend I am in the United States, as we would all have a good laugh at the idea of calling the Mexican police under such circumstances). My house is not a public accommodation, and your freedom of speech goes just as far within my walls as I say it does. Move my party to a public venue as a ticketed event, and I may still be able to throw you out for the joke, but I better not do so only to people of color, or women, or Hispanics, or Methodists, or Canadians. Or especially dark-skinned, Hispanic, Methodist women from Canada. Change this event to an official recognition ceremony at the White House honoring Notre Dame’s next football national championship (I know, I know, I should live so long), and I (or really the White House) cannot even prohibit you from wearing a “Notre LAME” sweatshirt to the event.

Your rights are inalienable, to borrow Thomas Jefferson’s original phrase.  They come from “your Creator” according to the Declaration of Independence, they pre-date all government, and all legitimate government must abide by them. Many of the right’s issue today are really civility issues, as people try to get noticed, send a message, or stake out a position. That does not make those messages or positions invalid, but it also doesn’t make them right’s issues.