A few weeks ago there was a lot of news about comments Rand Paul made in regards to the burden placed on small businesses in mandating non-discrimination. I have a friend who shares the same view that the Civil Rights Act needlessly places a burden on business. While discussing the issue with my friend, and while pointing out the inefficiencies of discrimination, the fact that the market in the 1950’s and 60’s actually valued discrimination, and the countervailing rights of African Americans to effectively participate in commerce, his argument devolved into one simply about the “constitutional right” of a business to function free of coercion by the government. This sort of rhetoric is coming up more and more often, and not just at Tea Party rallies, it happens on the left as well (ie, those who when pushed suggest that they only support a woman’s right to choose because it’s a constitutional right).
A similar, though not constitutional, area where this kind of argument comes up is in the discussion of immigration law. Often, those supporting some of the strongest positions on immigration reform (no “amnesty”, blanket deportation, or support for AZ’s new immigration law), fall back on the argument that illegal immigrants “broke the law” to justify their position. Of course many of these individuals are also OK with speeding, occasionally driving under the influence of alcohol, or participating in the also-illegal and cross-border smuggling of marijuana. Being against something because it’s “illegal” makes for a lazy and poor argument. There are surely other reasons at work when someone falls back on the “it’s illegal” argument, some of it might be racism, but I imagine more of it has to do with perceptions of unfairness in allowing illegals to stay here and have jobs in a tough economic environment, or perceptions of higher crime rates in certain areas, etc.
Most of the time we, as a society, define what’s constitutional and what’s illegal, and the view that the Constitution enshrines business with an inalienable right to not be regulated is just that: a view (and a historically minority one at that). So to argue a policy position based on law or constitutionality is often meaningless, and we should always push past a legalistic justification to the underlying policy rationales of those advocating a position. I’m concerned that this sort of rhetoric actually catches on, and that those who use it aren’t being pushed for the underlying reasons WHY they have the positions they have. (To clarify, I’m talking about those advocating policy positions, and not lawyers and Judges interpreting the law on the books).
Constitutional Rights, and all laws for that matter, don’t exist for the sake of themselves. They embody policy rationales, whether developed according to notions of efficiency, justice, equality, etc. Those who share the view that the Constitution enshrines business with the right to be free from any and all coercion, do so because they see some merit in a society that functions that way (whether it be from the incentives for creation that develop, the way wealth is accumulated, or many other things). Simply saying that they support their position because “it’s a Constitutional Right” masks the real reasons for supporting the position (and the same goes for those who might hide behind “Constitutional Rights” on the left).