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November 02, 2007



Hi Kaija -- I think it's hard to maintain that the right to hire who you want is protected by the first amendment. The first amendment protects "the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." To 'assemble' is to come together, to have a meeting or assembly or something like that. It does not mean to associate with in any way at all, and specifically it does not, in any obvious sense, mean to hire, fire, etc.

As I understand it, the First Amendment argument here goes something like this: freedom of assembly somehow involves a different freedom: freedom of association. Freedom of association is the freedom to associate with the people you want to associate with. It arguably does include the freedom to hire, rent to, etc., the people you want to hire, rent to, etc., and not other people.

As a matter of law, freedom of assembly (the right that is in the Constitution) has been held to involve a limited right of association: the right to form associations to engage in constitutionally protected activities. (Speech, religion, etc.) This limited right is the one needed to secure our ability to engage in those constitutionally protected activities; the right to form associations for other purposes is not.

The legal argument that the first amendment protects the right to hire and fire at will seems to me to be the kind of argument that conservatives rightly deplore when liberals make them: stretching the words of the Constitution to mean what they plainly do not mean, in order to arrive at a result one likes.

I think there might be an argument based on the ninth amendment, though. And in any case, the Constitutional argument leaves open the moral question whether it is OK for the government to restrict people's right to hire, fire, rent to, serve, etc., whoever they want, for whatever reason. Personally, I think it is OK, when there is a fundamental interest involved (as here), but I can see the argument against my view. I just don't think that it can plausibly be held to be unconstitutional for the government to do so.

(I wrote this largely because I thought: this blog needs comments! :) )


Shorter me: you wrote: "Does freedom of assembly include the right to hire or serve whomever you choose? It seems to me that it does; while the act seems more likely to have been included to protect people who came together for political purposes, telling a person that they have to hire or serve someone they don't want anything to do with, no matter how disgusting that desire may be, is a pretty major restriction on their freedom."

I ask: yes, it is a real restriction on their freedom, but is it a restriction on their freedom of assembly?

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