Freedom of Association and the Right of Exclusion: The Rights Before All Others, Part 3

Christopher Donovan


Part 1
Part 2

The Legal Landscape

American law deals frequently and expansively with the topic of race[1]. The Constitution itself has three amendments that implicate race.  The 13th Amendment outlaws slavery, though it does not explicitly mention race.  The 14th Amendment requires governments to give citizens the “equal protection of the laws.”  It also does not mention race, but it plainly forbids many imagined government treatments of race — say, a state law prohibiting Asians from owning property or setting different punishments for different races for the same criminal act.  The 15th Amendment forbids both federal and state (and by extension, local) governments from prohibiting anyone from voting for racial reasons (“race, color, or previous condition of servitude”).  The Voting Rights Act, absurdly applied though it is, is a good example of racial legislation based on the 15th Amendment.

Brown v. Board[2], because public school segregation was at issue, is a good example of a case decided under the 14th Amendment.  The “separate but equal” defense, it should be noted, was perfectly Constitutional, but the true inequality between Blacks and Whites was exposed:  an all-Black school, by virtue of lower Black IQ and behavioral differences, was bound to be a shabbier environment, and it was imagined that the by the alchemy of shoulder-rubbing with White students, Blacks would by osmosis become smart, well-behaved little versions of Whites.

The 14th Amendment, however, has a “state action” requirement:  the racial discrimination must be accomplished by the government for it to be illegal.  In the Supreme Court case of Shelley v. Kraemer[3], the court managed to wrangle in the “state action” requirement by declaring that two private parties, battling over a racially exclusive covenant in the sale of a home, had created state action by merely seeking enforcement of that right in a state court.  A decision like this shows the depths to which courts will sink to defeat a White right of association.

Most federal anti-discrimination law, then, is based not of the 14th Amendment, but the commerce clause, found in Article I of the U.S. Constitution.[4]  The commerce power was the supposed support for the Civil Rights Act of 1964.[5]  In one early case, Katzenbach v. McClung[6], the federal government asserted that it interfered with interstate commerce for Ollie’s Barbecue to deny service for Blacks.

Even private schools have been forbidden from exercising a right of racial exclusion[7].  The court in Runyon v. McCrary held that 42 U.S.C. 1981 prevented private schools in Virginia from excluding Blacks.  In dissent, Justice Byron White stated that the statute was not meant to reach racial discrimination by private parties, only the government (which was the holding of the so-called Civil Rights Cases of 1883).  The commerce clause has been the basis of many questionable claims of federal power, including the right to ban firearm possession near schools, which the Supreme Court actually denied.[8]

American law touches only lightly on freedom of association[9].  Two areas have been recognized:  expressive association and intimate association[10].  Expressive association protects the right of the Boy Scouts to exclude gays[11], while intimate association protects the right of a homeowner to throw a party that excludes Jews.

The First Amendment, with its guarantees of speech, assembly and redress, is the point of reference for the expressive association line of cases.  NAACP v. Alabama[12] was a Supreme Court case that involved attempts by Alabama to shut down the state chapter of the NAACP.  During the battles, the state had demanded a membership list.  The Supreme Court denied the attempt to get at the list, holding that it would have chilled the right of association for an expressive purpose under the First Amendment.  The Court reasoned that in a democracy, banding together for a political purpose was necessary and in this instance, protected against government intrusion.

In Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston[13], the court affirmed the right of the St. Patrick’s Day Parade council to exclude gays, stating that its non-political message would be commandeered. In 2011, a federal judge in Seattle ruled that a gay softball league could Constitutionally exclude straight players.[14]  The First Amendment was cited as the justification.  Thus gays and straights may, with the right groupings, keep each other at bay.

The sexes did not fare as well in Roberts v. United States Jaycees[15], where the court ruled that the Jaycees, despite being a private group, were large and generalized enough that a Minnesota law forbidding the exclusion of women was Constitutional.   Their right of intimate and expressive association was not diminished, the court claimed.

Intimate association, in contrast to expressive association, is seen as deriving from the “right of privacy”, which supposedly emanates from the due process clause of the 14th Amendment (though the words do not appear there).  The state of Connecticut, under the intimate association doctrine, was forbidden from banning contraceptives for married couples in Griswold v. Connecticut[16].

Libertarian commentator Lew Rockwell, reflecting on an earlier decision by the New Jersey Supreme Court to force the Boy Scouts to accept gays (later overturned), set forth the right of exclusion as a “property” right.[17]  He correctly notes that it is by legal trickery that the court arrives at its forced-association rulings:  the Boy Scouts, like the Southern barbecue joints along the highway a few decades earlier, are deemed a “public accommodation”, and this therefore justifies forcing them to accept members they do not want.

But to call the right of exclusion a “property right” — or a free speech right, or any other attempt to shoehorn it into already-recognized rights — is ham-handed.  The right of association should stand alone as a bedrock right.[18]  It is truly the right before all other rights, for other rights have little meaning in democratic societies where they can be stripped so easily on grounds of keeping the “diversity peace.”  Rights will always be needed as a hedge on government power (indeed, this was their original purpose), but they transform into weapons against the productive majority in societies like ours.

Getting Started

Whites must assert their right of association in the courts.  The first logical step is to challenge all anti-discrimination laws in housing, employment, education and other private realms as a violation of the right of association.  If abortion is shielded from government interference by a “right of privacy”, there should be no less an impediment to a right of racial association, supported by a free-standing “right of association” that derives from the First Amendment, the due process clause of the Fifth and Fourteenth Amendments, the “rights reserved” clause of the 10th Amendment, and a basic appeal to freedom.  The commerce clause was never a genuine basis for interfering with the right of association — no federal bureaucrat ever cared about the “effect of commerce” caused by Ollie’s Barbecue’s denial of ribs to Blacks.  The real motivation was pure social engineering.

Interestingly, affirmative action — at least as practiced by private individuals and groups — constitutes just such a freedom of association.  Microsoft would be as free to announce a policy of no White hires as no Hispanic hires.  It may well be that a total-freedom approach is better on balance for Whites because it will galvanize them into community action on the occasions when some private enterprise does announce a policy of anti-White discrimination, and Whites would of course be free to exercise the same right in response.

The next area for challenge — admittedly more difficult — is a push for governments to practice segregation where the need is compelling.  Prisons are a good example:  some officials in the trenches realize that even putting a Japanese and a Chinese prisoner together in the same cell is a recipe for disaster, to say nothing of the vulnerability of Whites in the system.  A class-action lawsuit on behalf of White prisoners, seeking separate White prison facilities, would get traction with exposure of the abuses that only civil discovery can accomplish.

Local public schools would be a fine next step.  In places where the tax base and population are White, there should be no impediment to ensuring White schools — with the addition of a Euro-conscious White identity curriculum to cement the effort.   Within multiracial schools, White social clubs should have full protection.  Small steps toward a right of association would help to pave the way for bigger disentanglement efforts:  separate criminal justice and welfare systems, for instance.

Ultimately, the right of association and exclusion are racial rights, to be played out in the forging of a nation-state rather than stabbed at piecemeal in the courts of a decaying empire like the United States.  But minds must be concentrated on the racial defense effort, and efforts short of revolution are worthwhile.  As one of those efforts, White advocates should consider establishing a right of association.

Christopher Donovan is the pen name of an American attorney and writer.  He coined the term “White advocate.”

End of Part 3 of 3.


[1] In Race:  The Reality of Human Differences, Sarich and Miele, Westview Press, 2004, the authors note with astonishment that the existence of race itself in the American legal system – which fights tooth and nail over every conceivable point — has never been questioned, nor is there any legal definition of “race”.

[2] 347 U.S. 483 (1954).

[3] 334 U.S. 1 (1948).

[4] U.S. Constitution, Article I, Section 8.  “The Congress shall have the power to…  regulate Commerce with foreign Nations, and among the several States…”

[5] Rep. Ron Paul, remarks on the floor of the House of Representatives explaining his objection to H. Res. 676 on the 40th anniversary of the bill.

[6] 379 U.S. 294 (1964).

[7] Runyon v. McCrary, 427 U.S. 160 (1976).

[8] United States v. Lopez, 514 U.S. 549 (1995).  In a famous footnote, Justice Thomas admitted that the Lopez reasoning could wipe out huge portions of asserted federal power – including entire departments – but that “it’s too late in the day” to address all that.

[9] In Constitutional Law, Thirteenth Edition, compiled by Gerald Gunther and Kathleen Sullivan, your writer’s 1997 law school case book, “freedom of association” in the index refers the reader to “freedom of speech” – there are no free-standing cases much less a separate section.

[10] The “Mrs. Murphy exception” to the Fair Housing Act of 1968 states that you racially discriminate if you live on the premises and rent to no more than three other individuals or families.

[11] Boys Scouts of America v. Dale, 530 U.S. 640 (2000).

[12] 357 U.S. 449 (1958).

[13] 515 U.S. 577 (1995).

[14] You’re Out!  Seattle Judge Rules Against Straight Softballers, Wall Street Journal, June 3, 2011.

[15] 468 U.S. 609 (1984).

[16] 381 U.S. 479 (1965).

[17] The Right to Exclude, Lew Rockwell, WorldNetDaily, August 11, 1999.

[18] An Independent Right to Freedom of Association, Reena Raggi, Harvard Civil Rights-Civil Liberties Law Review, Vol. 12, No. 1, Winter, 1977.

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