Consider this tweet:
Now ask yourself this question: can people in the U.S. refuse to engage in private commerce with anyone for any reason?
The answer is clearly yes. If you do not want to engage in commerce with, say, a black person, you are not forced to. Nobody requires you to operate a hotel, a restaurant, or any other business. If you don't want to serve a black person at your restaurant, you can refuse to do so by not opening or operating a restaurant. There is no legal penalty for that whatsoever.
We know of course what Green means. He doesn't mean that people should be able to refuse to engage in private commerce with anyone for any reason (something they already can do). He means that they should have the affirmative ability to engage in private commerce without following the rules we establish for such engagements, in this case non-discrimination rules.
Here is the list of things we are talking about:
- Refuse to engage in commerce.
- Engage in commerce while following non-discrimination laws.
- Engage in commerce while not following non-discrimination laws.
Green acts like he is mad that (1) is not an option even though it is an option. He fashions his comment as focused on (1) for rhetorical reasons. What he is really mad about is that (3) is not an option.
But now consider my list:
- Refuse to engage in commerce.
- Engage in commerce while following property and contract laws.
- Engage in commerce while not following property and contract laws.
I am quite mad that (3) is not an option. The state has regulated the way in which I am able to engage in commerce so as to prevent my engagement of it in a way that runs afoul of property and contract institutions. It has in this case and in the anti-discrimination case (in the words of Robert Hale) placed background constraints on the universe of socially available choices.
If you think voluntarism and non-force requires that the state not create rules of the game for commercial transactions, then that means property and contract must be out as well. On this view, it must be concluded that wage labor is nothing but an involuntary farce, something people are forced into doing because the state's regulation of commerce does not let them just go into their workplace and run it collectively. Green does not want to reach this conclusion.
If you think voluntarism and non-force merely requires
some alternative to the activity that is being objected to, then non-discrimination laws do not run afoul of that. There are alternatives because you do not have to engage in commerce, be an employer, open a business, or anything of the sort. Green also does not want to reach this conclusion.
Conservatives have to somehow thread the needle here and claim that requiring people to follow property and contract regulations in the course of engaging in commerce is consistent with voluntarism while claiming that requiring people to follow anti-discrimination regulations is not. They cannot do so. The arguments they provide for why anti-discrimination is involuntary also render wage labor involuntary. The arguments they provide for why wage labor is voluntary also render anti-discrimination voluntary.
