The term "rights" first appeared in the American political context in 1776 in the Declaration of Independence, which referred to rights as “unalienable” and applying to "all men," i.e., to all people (even though the founders didn't always practice what they preached), but the term "civil rights" did not appear until 1791, when it was used by Thomas Paine to whom it meant no less than what the term "unalienable rights" meant to Thomas Jefferson. "Civil rights", according to Paine, are based on the natural rights of every member of society. In his essay The Rights of Man, he states:
"Man did not enter into society to become worse than he was before, nor to have less rights than he had before, but to have those rights better secured. His natural rights are the foundation of all of his civil rights. . . . Natural rights are those which always appertain to man in right of his existence. . . . Civil rights are those which appertain to man in right of his being a member of society. Every civil right has for its foundation some natural right pre-existing in the individual, but to which his individual power is not, in all cases, sufficiently competent."
Moreover, in "A Serious Address to the People of Pennsylvania," Paine states that "[w]henever I use the words freedom or rights, I desire to mean a perfect equality of them. "It is this broad base, this universal foundation," he says, "that gives security to all and every part of society." It is only an equality of rights that promotes harmony among human beings and inspires one person to defend the rights of another. If, as was true under Jim Crow and is true again today, I have less rights than you, because you are a beneficiary of mandatory racial and ethnic preferences, then why should I care about defending your rights? Your rights are not my rights. It is only the repeal of mandatory preferences and a return to equal rights that can foster a mutuality of interest among different ethnic groups within society.
The term "civil rights" appeared in American law for the first time in the Civil Rights Act of 1866, which was designed to extend to blacks the same rights that whites already possessed. One of the principal sponsors of the Act described civil rights as "the absolute rights of individuals, such as the right to personal security, the right of personal liberty and the right to acquire and enjoy property." Civil rights were thus construed not only to apply equally to every individual, irrespective of race or gender, but also to include the fundamental rights enunciated in the Declaration of Independence. The principle underlying liberty and property rights is that no one may gain values from others without their voluntary agreement -- that just as people have the right to associate with others by mutual consent, so they have the right to dissociate from others through personal choice.
For instance, if two people of different races want to marry, a law against miscegenation would violate their civil rights, but so would a law compelling them to stay married, if either party wants a divorce. If two people of different races want to do business, a Jim Crow law preventing them would violate their civil rights, but so would a law compelling them to do business, if either party refuses.
Thus, to force a black worker to labor for a white employer (as was done on the Southern plantations) would violate civil rights, but so would forcing a white employer to hire a black worker (as is done under Title VII of the 1964 Civil Rights Acts). To threaten a business with closure for serving blacks (as was done under Jim Crow) would violate civil rights, but so would threatening a business with closure for refusing to serve blacks (as is done under Title II of the 1964 Civil Rights Acts). The proper function of government -- and the fundamental purpose of civil rights -- is to protect and defend freedom of choice, not violate it -- to protect people from being enslaved to others, not enslave people to others.
If an owner or employer has liberty and property rights -- if he has rights to freedom of choice and freedom of association -- then he has the right to choose his employees and patrons on any basis he wishes, even one that is racially discriminatory. Although capitalism discourages invidious discrimination in the markeplace and would tend to create an economic system free of such discrimination, people still have the right to associate with, or dissociate from, anyone they choose, regardless of the person's race, religion, sex or national origin, and regardless of the reason for their choice. The right to dissociate from others, to be free from bondage to others -- which is clearly implied by the 13th Amendment -- does not mean that one is free to dissociate from another person only if one has a good, non-discriminatory reason for doing so. It means that one is free to dissociate from another person, irrespective of one's reasons for doing so. Freedom of choice does not apply only to choices that are deemed rational by the government, nor does it depend on the particular reasons for one's choice. All that matters is that one be free to choose.
In fact, the practice of racial and gender preference by businesses and private universities is already sanctioned by law, even though it constitutes discrimination on the basis of race and gender and is technically in violation of the 1964 Civil Rights Act. This kind of private discrimination was recognized by a Supreme Court decision in which the Virginia Military Institute was barred from discriminating against women, if it continued to accept state funding. The implicit premise on which the Supreme Court based its decision is that discrimination is permissible in institutions that are privately funded but not in those that are publicly funded. Just as we allow private universities, like Notre Dame, to favor a particular religion but not public universities, so we allow private universities, like Mills College, to favor a particular gender, but not public universities.
To be sure, this distinction is not adhered to consistently, given the practice of affirmative action in public institutions, but the principle is defensible nonetheless. The separation of race and state and of gender and state is as justifiable as the separation of church and state. By the same token, just as we do not deny parochial schools freedom of religion, neither should we deny businesses and private universities freedom of association and freedom of choice. If a private school or business has the right to discriminate in favor of a particular religion, then it should have the right to discriminate in favor of a particular race or gender.
To allow a person the freedom to practice discrimination does not, of course, imply that one sanctions his conduct, any more than to allow him the freedom to express a racist viewpoint implies that one sanctions its content. Just as someone who opposes racist propaganda has no right under freedom of speech to ban it, so neither does someone who opposes racial discrimination have a right under freedom of association to ban it. The point is that one may not interfere with another person's freedom of choice simply because one disagrees with the way that he or she exercises that freedom.
Defenders of the First Amendment often point out that the true test of one's belief in freedom of speech is whether or not one allows freedom for speech that one finds offensive. By the same principle, the true test of one's belief in freedom of association is whether or not one allows freedom for associations that one finds offensive (e.g., those based on racial discrimination).
In fact, he who has no right to freedom of association -- no right to determine whom to associate with -- has no right to refrain from practicing racial discrimination, should the government decide to make such discrimination mandatory. It is just such mandatory discrimination to which the old miscegenation and separate-but-equal laws bear grim testimony, and of which the contemporary statutes on affirmative action and racial quotas are a modern expression.
Observe that whereas the original intent of Title VII was to make racial discrimination illegal in private business, that statute has subsequently been interpreted to authorize affirmative action, making racial discrimination mandatory in private business. And this, despite assurances by proponent's of the statute that no such thing as quotas could ever be inferred from it. Consider, for example, the "famous last words" of Senator Hubert Humphrey when the Civil Rights Bill was being debated in Congress:
"Contrary to the allegations of some opponents of this title, there is nothing in it that will give any power to the Commission or to any court to require hiring, firing, or promotion of employees in order to meet a racial 'quota' or to achieve a certain racial balance...."
Even more outrageous is that affirmative action violates explicit disclaimers included in Title VII itself. Section 703 (j) reads as follows:
"Nothing contained in this title shall be interpreted to require any employer, employment agency, labor organization, or joint labor-management committee subject to this title to grant preferential treatment to any individual or to any group because of the race, color, religion, sex or national origin of such individual or group on account of any imbalance which may exist with respect to the total number of percentages of persons of any race, color, religion or sex, or national origin employed by any employer . . . ."
Once the government can violate freedom of association in order to prevent discrimination, it can do so in order to mandate discrimination, even to the point of perverting and explicitly transgressing its very own civil rights statutes!
In addition to violating freedom of association, Title VII violates freedom of choice in the use of one's property. If the government may dictate the use of one's property, then the government is the effective owner of the property, and you, the legitimate owner, merely its rightless, dispossessed custodian. The essence of ownership is the right of the owner to control his or her property (consistent with the right of others to control theirs). As the Supreme Court declared in 1917:
"Property is more than the mere thing which a person owns. It is elementary that it includes the right to acquire, use, and dispose of it. The Constitution protects these essential attributes of property.... There can be no conception of property aside from its control and use, and upon its use depends its value."
Furthermore, without property rights no other rights are possible. If people have no right to control their own property, then they have no right to control their own lives, in which case, there can be no such thing as civil rights. People whose lives are at the behest of a higher authority do not act by right but only by permission. Nor are the interests of blacks and minorities any more secure under a government that can function as either friend or foe, depending on the winds of political change -- a government that can dole out favors or demand sacrifices on the premise that people's lives and property belong, not to themselves, but to the state.
A person who has no right to control his own life and property is a slave -- a status that cannot be any more reassuring for blacks than for whites. As 19th Century liberal Auberon Herbert observed, "no man can have rights over another man, unless he first have rights over himself.... and if we grant him the latter right, this is at once fatal to the former." (The Right and Wrong of Compulsion by the State and Other Essays, LibertyClassics, 1978, p. 46.)
The "right to enslave others" -- to control their lives and property -- is, therefore, a self-contradiction. Quoting Ayn Rand:
"If some men are entitled by right to the products of the work of others [to the rightful property of others], it means that those others are deprived of rights and condemned to slave labor.
"Any alleged 'right' of one man, which necessitates the violation of the rights of another, is not and cannot be a right.
"No man can have a right to impose an unchosen obligation, an unrewarded duty or an involuntary servitude on another man. There can be no such thing as 'the right to enslave'." ("Man's Rights", The Virtue of Selfishness, p. 96.)
If a black business owner prefers the company of black employees but is forced to hire members of other ethnic groups in order to avoid charges of racial discrimination, then he is deprived of freedom of choice and freedom of association, the very rights that black workers were deprived of in being forced to labor for white employers.
This does not mean, of course, that the violations of civil rights inflicted on business owners today compare in severity or degree to those inflicted on blacks centuries earlier. But it does mean that these latter day violations entail a rejection of the same principle of individual autonomy as did slavery in the antebellum South. George Santayana observed that those who cannot remember the past are condemned to repeat it. It is equally true that those who cannot grasp fundamental principles are condemned to repeat their violation.