Freedom of association and the role of government

By Scott Tibbs, October 1, 2007

An apartment owner in Texas has created a minor stir with a policy stating that his apartment complexes will "reject prospective tenants who have... tattoos exposed on the neck, head, hands and wrists, or large tattoos that cover over 40% of the lower or upper arm", according to WOAI TV in San Antonio. The owners have also "banned pierced eyebrows and tongues. Tenants can't have more than one nose piercing, or more than five earrings." A man who was rejected complained to city government, only to find that the discrimination is legal.

First of all, this is a stupid policy. Zero tolerance often equals zero common sense, and a blanket ban like this can exclude reliable tenants. Someone who finished getting a lot of tattoos a decade ago may even regret that decision, but tattoos are not easily removed. The tenant who was rejected may find that he is better off not living in the apartment he originally wanted, as the landlords may be overbearing in other ways.

Nonetheless, an apartment owner should have the legal right to discriminate in this manner. Edward Frankel and his partners have invested in their properties and are responsible for them. As the owners, they should not be forced to rent to someone with a large number of tattoos if they choose not to. Both tenant and landlord should be able to decline a business arrangement if either chooses to do so.

Last month, I sent a letter to U.S. Representative Baron Hill urging him to vote against a bill expanding federal discrimination law. This leads to a legitimate question: should there be a federal law prohibiting discrimination on the basis of race, religion, national origin and so forth? The answer is no.

It should be obvious to anyone with the slightest understanding of American history that the men who wrote the Constitution clearly never intended to give the federal government the authority to regulate whether a property owner can refuse to rent to someone. The Constitution gives the federal government the power to "regulate commerce among the several states" - in other words, the federal government has the power to regulate interstate commerce. The federal government has not been granted the power to regulate intrastate commerce, such as a personnel decision or or a contract negotiation between a landlord and a prospective tenant.

I have much less of a problem with these laws if they are passed by state government, where the legitimate authority lies to regulate such relationships. However, there would be no anti-discrimination laws in an ideal world. The freedom to associate necessarily includes the freedom not to associate. In that perfect world, the government would be prohibited from discriminating with stiff criminal penalties (including prison time) for government officials who break the law, because we have a lot more to fear from the government than from a closed-minded business owner.