The "right to contract," whether originating in the Constitution, common law, or natural law, has been long and widely felt to be in tension with our civil rights, broadly conceived. (1) The individual himself, we generally believe, and only the individual, should decide the scope and terms of his affirmative, voluntary, and other-regarding undertakings. When he does so through contract, the individual and only the individual should determine the terms under which he will perform those duties. The civil rights laws of the nineteenth, twentieth, and early twenty-first centuries, and the various rights they create interfere with these natural freedoms.
So, for example, our freedom to hire whomever we wish to hire, and then our freedom to fire them at will is compromised by our obligation under the Civil Rights Acts of 1964 (2) to not discriminate against candidates for employment or for promotions on impermissible grounds of race, sex, ethnicity, age, or disability, at least according to early critics of those Acts. We no longer have the right to contract for employment with whomever we wish and on whatever terms we desire because of the impact of these laws. Likewise, our freedom to sell or rent our home to whomever we wish is compromised by the civil rights of others to not suffer discrimination in housing or rental markets. (3) Again, we do not have the right to contract for the sale, purchase, or rental of our property with whomever we wish, and on whatever terms we desire, and we do not have such a right, in part, by virtue of various civil rights laws. Similarly, our right to contract for the sale of our labor, for whatever wages for which we can bargain, and on whatever terms we manage to strike is seemingly compromised by what are widely viewed as "civil rights" to a minimum wage and fair working conditions, which are enforced by various legal regimes coming out of the New Deal. More recently, various entitlements flowing from the Family and Medical Leave Act (4) also substantially alter terms of employment contracts, regardless of the will of the contracting parties. That Act as well is widely understood as protecting the civil rights of nondiscrimination against parents or caregivers in the workplace.
Presumably, all of these civil rights either prevent some labor contracts from being consummated at all or dictate the terms of those that do come to fruition. To take one further example, our felt right to contract only when we voluntarily consent to do so, and to refuse to contract whenever we so desire, is compromised by our newly crafted obligation under the Affordable Care Act (5) to purchase health insurance, an obligation clearly aimed at insuring to all Americans a secure civil right to health care. So again, the natural right to contract, or to not contract seems to be badly compromised by the civil right to health care, as neatly captured and then popularized by the reductio argument employed by advocates and Supreme Court Justices alike that mandating the purchase of health insurance, as the Affordable Care Act tries to do, is tantamount to ordering all of us to go to the store and purchase a head of broccoli. (6) If the "individual mandate" is required by a broad civil right to health care, then that civil right too is in tension with our right to contract.
More generally, or more abstractly, our natural right to contract is seemingly in conflict not only with our civil rights laws, but also with at least some very general obligations of civil society, such as, for example, the duty to help others if such help can be given without undue hardship, or our various duties--whether legal or moral--to assist family members, neighbors, or co-citizens, solely by virtue of close relational affinity. At the root of both this more general tension, and that between contract and the rights flowing from our various civil rights acts, I believe in a modern sense, that our obligations today should flow solely from voluntary acts of consent and not from either duties of benevolence, or from our membership in civil society any more than it should follow from our membership in a clan, tribe, family, or neighborhood. When we moved so famously from status to contract as the font of legal obligation, we have come to believe, perhaps, that we shed not only obviously noxious sources of non-voluntary obligation such as enslavement or marital status, but more benign ones as well, such as membership in a civil society that is committed to such social projects like the racial and sexual integration of our workplaces and schools, or the health, safety, education, and well being of all citizens. Our obligations today, we tend to think, should stem from what we have agreed to do, and not from what or who we are, including not only our race, or gender, or class but also, apparently, our civil identity. From within the logic of our commitment to contractual freedom, civil society and its projects, including the project of achieving some measure of racial or sexual justice, is not the source of obligation any more than race, class, or gender itself should be. Rather, contract is the source of obligation, and to the extent civil society and the civil rights obligations that partly constitute it impose obligations outside of contract, it is felt to be in tension with those freedoms and rights.
In these comments I want to resist this tension; thus, I will ultimately argue that the felt tension between a right to contract and civil rights, as well as between the idea of contract and the obligations of civil society, although plenty real enough, rests on an unduly narrow conception of both the idea of contract and the idea of civil rights. The widely shared understanding of a right to contract as delineating a separate sphere of unadulterated individual sovereignty, within which the state may not intrude, comes to us, I will suggest, in part, from the now discredited constitutional jurisprudence of the Lochner era. (7) Although the constitutional law from that era is no longer good law as is widely conceded-today, we do not have a constitutional right to contract that gives us full sovereignty over whether, with whom, and on what terms to contract-nevertheless, our contemporary general understanding of both what the natural right to contract is, and what the constitutional right should mean, or could mean, or would mean, if only we had one, or, perhaps, what it will mean, if we ever get a Court that gives it back to us, is heavily determined by that constitutional jurisprudence. Thus, the understood contemporary meaning of the idea of a "right to contract," which is in such tension with the civil rights acts and other obligations of civil society, is largely an overhang from a discarded constitutional jurisprudence. The meaning that jurisprudence has given us of the right to contract, however, was never discarded; what we left behind was the faith that it is protected by the constitution.
The Lochnerian meaning of the "right to contract" is not, however, the only possible social meaning of that right available to us, and Lochnerian jurisprudence is not the only historical context in which the right to contract has played a role in our positive and fundamental law. A very different understanding of both the content and meaning of the right to contract, I will argue, comes from the civil rights traditions themselves. "Civil rights" are widely understood today, as meaning roughly rights of nondiscrimination: our civil rights are our rights not to be discriminated against on the basis of impermissible characteristics. This is the understanding of "civil rights" that is in tension with our understanding of the natural and Lochnerian era's constitutional right to contract. But this understanding of "civil rights" as "antidiscrimination rights" is clearly inadequate for two reasons. First, over the century, we have used the phrase "civil rights" to include a number of rights, such as free speech rights, rights to the protection of the state against private violence, labor rights, and union rights, and, these days, rights to health care or rights to affordable health insurance. However, these rights have little or nothing to do with discrimination. So civil rights are clearly not only antidiscrimination rights. Second, and more to my point here, even those civil rights that target and then prohibit discrimination do not do so exclusively. Rather, and as the Civil Rights Acts of both the nineteenth and twentieth centuries make clear, the civil rights of which we cannot be discriminatorily deprived by virtue of those laws notably include the right to: contract, own and sell property, make a will, testify in court, sue for injuries wrongfully inflicted upon us, and the right to be protected by the state against private or public acts of violence. These are civil rights too. Thus, our civil rights include not only rights to be free of discrimination, but also a number of common law rights, including rights derived from the common law legal regimes of contract and property law, of which we cannot be discriminatorily deprived. The "right to contract," whatever its status as a constitutional right, is clearly a civil right and has been since it was declared as such in the Civil Rights Act of the mid-nineteenth century. (8)
What is the nature of the right to contract, understood not as a Lochnerian right of individual sovereignty, but instead as one of a number of civil rights, and of which, according to our civil rights laws, we cannot be deprived? Below I will argue that the civil right to contract is quite different from the constitutional right, or the natural right to contract because it was defended by the Supreme Court during the Lochner era and continues to have such an impact on our political imaginations. The civil, rather than constitutional, right to contract has a different historical pedigree. It rests on a different...