Over at the Library of Law and Liberty blog, the formidable Richard Epstein (NYU/Chicago) has a long essay titled, Freedom of Association and Antidiscrimination Law: An Imperfect Reconciliation.
It was an honor to respond to Professor Epstein’s essay in this comment, in which I investigate some causes of the classical liberal retreat. Other responses by Professor Andrew Koppelman and Professor Paul Moreno will follow. A bit from the beginning of mine:
Professor Richard Epstein has performed a welcome service in reminding us of the classical liberal case for the freedom of association. The classical liberal champions the primacy of rights as guarantors of the individual’s sovereignty to make free dealings with other sovereigns. He values rights as safeguards of the freedom to make moral and economic choices, to unite with others of like mind, and promptly to divest when the benefits of union are no longer perceived. He distrusts rights as claims for the imposition of obligations that override others’ sovereignty, reserving such mandates for special cases—force and fraud, as well as monopolistic control.
As Epstein has incisively noted elsewhere, discriminating associations are features of well-ordered societies in which people disagree about the good life, much as discriminating palates are features of well-ordered societies in which people disagree about good taste.[1] Association implies discrimination; to include some is to exclude others. Discrimination is legally wrongful only when it completely blocks a class of persons from access to a particular set of commoditized goods and services. But it is not legally wrongful if such persons feel the offense of exclusion but still can access alternative market channels. Respect for rights is supposed to limit the power of the state, not enhance it. All this is an appealing view of associational freedom in many ways.
Why, then, is this view so much in retreat? For it is today in open and full retreat. As Epstein’s Liberty Forum essay shows, the scope of antidiscrimination law, and the zeal with which it is enforced, have greatly increased over the last few decades. The power of government to mandate proliferating and ever more rigorous norms of equality has accelerated and shows no signs of abating. More perplexing still is that a significant and growing number of Americans, especially those in elite circles (including in younger generations), have acquired a wolfish appetite for measures that contract First Amendment freedoms and swell the state’s power to stamp out discrimination of increasingly recondite varieties wherever they may exist. Epstein notes all this and rightly laments it. But he does not explain it.
What happened to the libertarian, economically-inflected, live-and-let-live vision of the freely associating society?
Many things that this brief response to Epstein cannot comprehensively catalog. Yet one explanation for the classical liberal retreat lies in its failure to account for the psychologically affective features of law—and in particular its blindness to the influence of its own marketized and contractualized conception of First Amendment freedoms, including associational freedom, on the civic virtues and ideals of the citizenry. Law gives direction; it teaches, orders, and ranks; it creates hierarchies. The classical liberal model of law is no exception.