Tolerating a universal right of business owners to discriminate against potential customers is a lose-lose proposition. It undermines the economic basis of conducting business, including profit, by injecting conflicting parameters. It undercuts the principle of equal opportunity.
Consider two situations. First, discrimination by the majority against a minority group. Second, discrimination by a minority group against the majority. The former case is very damaging to the minority because most of the leverage rests with the majority. The minority has few alternatives. Bargaining power rests with suppliers/sellers not the customer. In contrast, discrimination against the majority has a lesser impact on the majority, because the majority possesses the leverage from having a chance to conduct business with itself. Bargaining power rests with the customer (majority).
Indeed, Federalist No. 10 is no accident. The Founders understood the inherent danger that existed with factions and that such a faction could even be comprised of a majority. That's one of the strong arguments they made for Republican government. Civil Rights laws, even as they slightly infringe on a narrow right of discrimination in a limited number of circumstances, enhances the overall freedom of the public at large, because discrimination infringes on the freedoms of those who are targeted.
In Federalist No. 51, written by James Madison or Alexander Hamilton, the argument for protecting civil rights was sharpened:
If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public...
It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure... Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority. In a free government the security for civil rights must be the same as that for religious rights... In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradnally induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful... In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good; whilst there being thus less danger to a minor from the will of a major party, there must be less pretext, also, to provide for the security of the former, by introducing into the government a will not dependent on the latter, or, in other words, a will independent of the society itself.
The Civil Rights laws, which in effect 'control the effects of faction' to use Madison's words from Federalist No. 10 are not only constitutional, they are also consistent with the role of government as envisioned by the Founders. Republican government had a basic responsibility to protect civil rights. Republican government, though the powers granted to it in the Constitution, offered the strongest prospect for doing so.
Paul likes to label himself as a "constitutionalist." However, Paul's ideology is vastly different from what the Founders had in mind when devising the Constitution given the existence of their writings e.g., the
Federalist papers. Indeed, Paul's ideology would amplify the
concerns raised by Tocqueville that the American form of government might yet result in a "tyranny of the majority."
In sum, civil rights were conceived as a basic obligation of government by the United States' Founders. The Civil Rights laws were necessary to fulfill that obligation. Furthermore, Paul's interpretation of the Constitution is his own opinion. That opinion differs quite markedly from the opinions expressed by those who drafted the Constitution and argued for its adoption.
