The Air You Breathe Can Become a “Public Accommodation”
In the category of essays breaking down very simply a complex evolution in political philosophy, Kevin Williamson traces how a royal proclamation that, specifically, a ferry owner can be regulated because he crosses a public water way between his two private docks has (nearly) become license for bureaucrats to command a small-time baker to offer a specific product for a particular event:
From the regulation of public waterways comes the principle that a man may not grow wheat on his own farm for his own use without the king’s permission: The slope is, in fact, slippery.
The principle that private property takes on an unalterably public character whenever a chicken crosses the road is central to American civil-rights law — which, contrary to the account sometimes given by our Democrat friends, has a history that does not begin in 1964. …
It is not the case that discrimination is discrimination is discrimination. Telling a black man that he may not work in your bank because he is black is in reality a very different thing from telling a gay couple that you’d be happy to sell them cupcakes or cookies or pecan pies but you do not bake cakes for same-sex weddings — however much the principle of the thing may seem superficially similar. If the public sphere is infinite, then the private sphere does not exist, and neither does private life. Having a bakery with doors open to the public does not make your business, contra Justice Harlan, an agent of the state. A bakery is not the Commerce Department or the local public high school.
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As Williamson notes, the slope is slippery, and it’s always some seemingly desirable principle that drags us farther down.