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Burlington Commission on Human Rights, 1964-1965

Iowa Law Review, "State Civil Rights Statute: Some Proposals" Page 1081

1964]     STATE CIVIL RIGHTS STATUTES     1081

to act are two separable liberties. "The first is absolute [in our society] but, in the nature of things, the second cannot be. Conduct [always] remains subject to regulation for the protection of society."60 It is one thing to permit men to believe as they choose and another to permit them to act as they choose. This is especially so when the conduct involved has a demonstrably ill effect on both the community at large and particular group of its members.
   A man may be prejudiced--a bigot of the most exaggerated order. If he is fool enough to detest the members of any racial or religious group as such, and if he cannot be taught the blindness of his folly, then the loss is his. Only totalitarian states attempt to interfere with the individual's innate right to hold those opinions he deems best.61 In any event, law is not a suitable tool with which to regulate men's beliefs. It may properly attempt to influence their views, but in the nature of things it cannot control them with any degree of effectiveness.
   The more appropriate sphere for law is therefore action--not belief. Law can be effective as an instrument to control conduct, the external behavior of people. In their actions people tend to abide by the law. This is because "lawabidingness is the pragmatic condition of, and response to, the whole firmament of social order."62 Though  men do not obey all laws int he same degree and in the same spirit, they will generally adhere to the law's mandate, whether they agree with it or not. Were it otherwise, our social order would disintegrate. The precise reasons why the vast majority of people are law observing are numerous and complex. At this juncture it is enough to note that the law, with the entire physical, moral, and economic force of the state behind it, is in fact a highly efficacious and demonstrably successful means with which to control behavior.
    However, one major limitation on the law's capacity to control behavior is our ability to satisfactorily discover and identify that conduct to be proscribed. If the conduct is not sufficiently visible or identifiable, the law will be impotent to deal with it. This is a question of the law's enforceability. Unenforceable laws are not desirable. They breed disrespect if not contempt for our legal institutions. Statutes proscribing discrimination of the kind under discussion here are not of this sort; refusals to do business on the basis of a man's race, religion, or ethnic background are sufficiently visible and identifiable to be dealt with effectively.
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60 Cantwell v. Connecticut, 310 U.S. 303-04 (1940). See also MacIver, op. cit. supra note 59, at viii.
61 "The whole sphere of opinion must be held inviolate by law, if the primary condition of democracy is to be fulfilled." Ibid.
62 MACIVER, THE WEB OF GOVERNMENT 77 *(1947).

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1964] STATE CIVIL RIGHTS STATUTES 1081 to act are two separable liberties. "The first is absolute [in our society] but, in the nature of things, the second cannot be. Conduct [always] remains subject to regulation for the protection of society."60 It is one thing to permit men to believe as they choose and another to permit them to act as they choose. This is especially so when the conduct involved has a demonstrably ill effect on both the community at large and particular group of its members. A man may be prejudiced--a bigot of the most exaggerated order. If he is fool enough to detest the members of any racial or religious group as such, and if he cannot be taught the blindness of his folly, then the loss is his. Only totalitarian states attempt to interfere with the individual's innate right to hold those opinions he deems best.61 In any event, law is not a suitable tool with which to regulate men's beliefs. It may properly attempt to influence their views, but in the nature of things it cannot control them with any degree of effectiveness. The more appropriate sphere for law is therefore action--not belief. Law can be effective as an instrument to control conduct, the external behavior of people. In their actions people tend to abide by the law. This is because "lawabidingness is the pragmatic condition of, and response to, the whole firmament of social order."62 Though men do not obey all laws int he same degree and in the same spirit, they will generally adhere to the law's mandate, whether they agree with it or not. Were it otherwise, our social order would disintegrate. The precise reasons why the vast majority of people are law observing are numerous and complex. At this juncture it is enough to note that the law, with the entire physical, moral, and economic force of the state behind it, is in fact a highly efficacious and demonstrably successful means with which to control behavior. However, one major limitation on the law's capacity to control behavior is our ability to satisfactorily discover and identify that conduct to be proscribed. If the conduct is not sufficiently visible or identifiable, the law will be impotent to deal with it. This is a question of the law's enforceability. Unenforceable laws are not desirable. They breed disrespect if not contempt for our legal institutions. Statutes proscribing discrimination of the kind under discussion here are not of this sort; refusals to do business on the basis of a man's race, religion, or ethnic background are sufficiently visible and identifiable to be dealt with effectively. _________________________ 60 Cantwell v. Connecticut, 310 U.S. 303-04 (1940). See also MacIver, op. cit. supra note 59, at viii. 61 "The whole sphere of opinion must be held inviolate by law, if the primary condition of democracy is to be fulfilled." Ibid. 62 MACIVER, THE WEB OF GOVERNMENT 77 *(1947).