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Freedom of Association lost on Paul critics

Tommy De Seno
The Daily Caller
Monday, May 24th, 2010

Watching the liberal media claw at Rand Paul like a pack of rabid hyenas has been particularly frustrating, considering Paul could so easily turn the the fight around on them.

The controversy started with Paul talking about the 1964 Civil Rights Act, and while noting that most of the provisions deal with government not being able to discriminate by race, one of the provisions requires private businesses not to discriminate by race.

Paul never said he didn’t agree with it. He said that had he been there in ’64, that part would have gotten more discussion, only because it concerns government control of private people. While Paul is opposed to government controlling people, liberals are opposed to “discussion.”

The media has used that comment to suggest Rand Paul may want to allow American businesses to reject black people from lunch counters, hotels and bathrooms.

While MSNBC wears out the label “extreme,” Rand Paul has been explaining himself ever since, and as the old saying goes in politics, “If you’re explaining, you’re losing.”

Unless of course you can get the guy interviewing you to start explaining his own views.

Rand Paul can shift the conversation by talking about First Amendment “Freedom of Association,” and this morning I squirmed waiting for Paul to shoot back at pixie George Stephanopoulos, “George, Do you really want to repeal the First Amendment?”

While the average American can rattle off First Amendment protections such as free speech, religion, press and assembly, most never consider that “Freedom of Association” is also a fundamental right, protected by the First Amendment and applied to the states through the 14th Amendment.

In America, we are free to associate with whom we wish, because the company we keep says something about us. I don’t want to admit an Islamic Jihadist into my prayer group, and the First Amendment protection of Free Association says the government can’t make me do it.

And what group is it that has used Freedom of Association to protect themselves more than any other? The NAACP. Throughout the 1950s as the government tried to harass the NAACP for their membership lists (ostensibly so they could harass the members directly), The Supreme Court ruled that the lists are none of government’s business—the NAACP is free to associate with whomever they wish. And thank God they are—I want for them what I want for me: the freedom to associate with and do business with whom I wish.

Who is the other group who has most used the First Amendment Freedom of Association in court to protect themselves? Trade unions.

So, if that’s the case, one could ask if the left hates the NAACP and trade unions?

This part of the First Amendment leads to an uncomfortable conversation, but it’s something Rand Paul is courageous enough to face head on in an important discussion while liberals gasp in feigned horror at the very mention of the concept: the legality of “private discrimination.”

You see, if you are going to have a group and exclude anyone from it, you are “privately discriminating,” no matter how morally good your group may be.

And if liberals think anyone who calls private discrimination a First Amendment right is a bigot, they must point their fingers at the Supreme Court. The court has found it legal, based upon First Amendment Free Association, to keep gays out of St. Patrick’s Day parades and the Boy Scouts.

But the right of Free Association is not absolute. For instance, the Supreme Court has refused to allow the Jaycees and Rotary Clubs to exclude women.

What we have then are two competing interests in America, both of which are legal, but both of which can’t exist in the same space: Laws against discrimination vs. the constitutionally protected right to associate with whom you wish.

So in what cases do you say the Right to Association with whom you wish wins, and in what cases do you say laws against discriminating win? Does anyone think this stuff is easy and not worthy of discussion?

It’s such a complicated area of law that the Supreme Court often struggles with it. Rand Paul wants only a discussion to clarify and educate, the goal being to never give government too much power over people, while liberal media wants to bury their heads in the sand and force us to listen to their muffled, ignorant screams of racism.

Imagine if there were no laws against discrimination. Would discriminating businesses survive in this day and age? Were there a lunch counter that didn’t accept anyone of any color, good folks like Rand Paul and I wouldn’t eat there, and neither would almost every other American.

A lunch counter that discriminated and set up to serve bigots would soon go out of business, because sitting at such places would be the two or three KKK members still alive, Jeremiah Wright, Gavin Newsom and the San Francisco City Council. That’s not enough customers to stay in business.

I personally hate having to defend America against foreigners who say Americans don’t discriminate by race only because the law makes us do it; that we aren’t good enough people to be non-racist by our own morality. I’m betting we could do without laws on discrimination, but that’s not Rand Paul’s position. He never said he wanted to repeal them, no matter what the liberal media distorts.

We are left with Rand Paul wanting to discuss how much power we should give government to overcome our First Amendment right to associate with whom we wish, and MSNBC wanting to see how many times they can say the word “extremist” in 24 hours.

Good grief.

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