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Edited on Wed Nov-05-03 11:35 PM by kcr
Been wondering about this for a bit, ever since I saw the story about the man who is going to lose his house because he put up a small flag on his yard that the home owners association did not approve of. The government, obviously, could never do something like that: that would be abridging the person's freedom of speech. The homeowner's association, being a private organization, could do whatever it could get people to agree to allow. Why should this be?
One argument, favored by libertarians, is that the home owner entered into a contract willingly, and thus knowingly traded his rights away for the ability to live in a homogenized community. But should rights be sellable? We don't allow the selling of organs, for example, in part because that could create a set of market pressures that could result in poor people selling their organs, regardless of the health risks to themselves. By enabling people to sell their rights, do we not create a society that encourages those with money and influence to create a system that creates incentives for selling their rights? In most parts of this country, I can be fired for my political views. Do we not have a system that discourages political activism in exchange for employment? how is that good for democracy?
A second, implicit, argument, is that the rights belong to citizens, not to human beings. In other words, private organizations can act as they like because you have no rights with that organization, since its not a government organization. By that runs counter to most of our political theory. "All men are created equal" very obviously implies that rights stem from the individual, not the organization. Our whole history, indeed, the history of western political liberal thought, is based upon the notion that rights are inherent to people and that they trade some rights to a government in exchange for a stable society. To argue that rights are a function of membership in the society instead of inherent to the person makes freedom a gift form the government, not a right. I seriously doubt that anyone would argue that freedom is a gif from the government.
That leaves the freedom of association, also guaranteed by the Constitution. But we balance rights all the time: why shout the right of association trump freedom of religion or freedom of speech in every situation? Particularly in the case of public organizations, such as businesses. Those organizations operate under the protection of the society. There is no reason that organizations that operate in the public sphere, and have been formed for limited reasons, should have their right of association trump the all the rights of all their members all of the time.
So: why shouldn't the bill of rights apply to organizations other than the government?
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