Robin West, ‘The Right to Contract as a Civil Right’

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. 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 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. 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.

West, Robin L, Contracts Symposium Issue: Featured Speaker: The Right to Contract as a Civil Right (2015), St Thomas Law Review, Vol 26, pp 551-569, 2014.

First posted 2015-01-12 07:19:44

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