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Don't sleep on this excellent Caplan piece. The man is a national treasure.
In "Lawsuits are the Hitman of the State," Caplan makes the case that the Texas "Heartbeat Act" is functionally equivalent to workplace discrimination laws that punish racist or sexist remarks.
(One thing I would be interested to see further discussion from Caplan on is the development of the idea that having a "job" is a "right," but he doesn't go into that in this piece. Basically, the Constitution is a document of enumerated powers, meaning the federal government can't--in theory--do anything the Constitution doesn't explicitly allow it to do. But the judicially-crafted breadth of the Fourteenth Amendment, combined with loose interpretation of the Commerce and Tax-and-Spend clauses, metastasized through the 20th century into today's rather grabby American legal system. This has given rise to the idea that you haven't just got a right to your own labor, but that you have a right to personally profit from other people's capital, at their expense, even if you contribute nothing of value to the enterprise.)
Something I really like about Caplan is how concise he manages to be while making absolutely cutting points:
Precedent on what counts as "government action" is remarkably unhelpful in understanding these things. Georgia v. McCollum (1992) is all about how a defendant in voir dire acts as an organ of the state when they select their own jury, and therefore are forbidden from considering race when seeking to exclude potential jurors. This, even though in virtually every other regard, as Justice O'Connor then noted, "our [past] decisions specifically establish that criminal defendants and their lawyers are not government actors when they perform traditional trial functions." Whether any particular action counts as "government action" proscribed by the Fourteenth Amendment does not seem to depend at all on who actually took the action, in other words, but only on how the Court wants the case to come out.
So I think Caplan is dead on, here--the Civil Rights movement basically shredded any kind of principled interpretation of the Fourteenth Amendment, in pursuit of socially-engineered results.
Civil rights wasn’t just a change in the 14th amendment. It basically was a new constitution. So many items (either explicitly or implicitly) under the CRA blatantly contradict the constitution (eg freedom of association, contract clause, 14th amendment as you note). CRA also dramatically expanded the scope of the executive and heavily reduced the scope of the State’s powers.
I can only think of the NRA and possibly the 17th amendment which committed such violence to the constitutional scheme.
It is a little unclear to me why the Commerce Clause does not give Congress the power to bar a practice that made it very difficult for millions of people to engage in interstate travel.
It is also unclear to me how the Civil Rights Act violates "freedom of association, contract clause, 14th amendment." Freedom of association is not a right listed in the Constitution. The Court has recognized a right to associate for the purpose of speaking, and a right of intimate association (eg, the right to raise children and the right to live with relatives), but a freestanding "freedom of association" would be as much an invention as the right to abortion. The contract clause simply forbids states from the common practice of passing laws eliminating the debts of particular individuals. It is not a right to enter into any contract you want. Finally, how does the 14th Amendment give anyone a right to engage in discrimination, racial or otherwise?
It doesn't have to be. This sort of reasoning is literally why we have the 10th amendment, so that someone can't go "well the right isn't enumerated in the Constitution so the government doesn't have to respect it".
Nevertheless, it is incumbent upon OP to make an argument, not merely an assertion, re the why broad "freedom of association" is one of those rights. After all, OP said that the law "blatantly contradict[s]" freedom of association.
It is not on OP. The Constitution is an enumeration of powers for an otherwise-powerless government, not a listing of rights which one would not otherwise have. The burden of proof is on you to show why people would not have this right under the constitutional framework, not the other way around.
Also, the analysis under the tenth amendment heavily supports freedom of association. Going back to English common law, there was zero idea that you were forced to rent or hire a particular person. The exception was common carrier. Freedom of association is deeply rooted in our tradition
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Yes, if OP claims that freedom of association is a right listed in the Constitution, it is indeed on OP to show that it is a right listed in the Constitution. The claim that something is not within the enumerated powers of the government is a completely different claim than that same something is forbidden. Lots of laws are within the powers of the government, yet are not permitted because they violate rights. An obvious example: racial discrimination in hiring postal workers was within the enumerated powers in 1860, and it still is today; however, today it is forbidden by the Fourteenth Amendment.
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