1866 Civil Rights Act A descriptive point &somewordsabouttheelephant in ...

[Volokh, Eugene]

	Well, the 1866 Act is also aimed at legal constraint (and maybe
private violence), not private contracting decisions.  But if one
appeals -- as some on this thread have, and as the Court did -- on the
statute's text, and resolves the ambiguity in "right" to mean "positive
right to have others deal with you," then literally the statute applies
to every single contract, commercial or otherwise, plus the right to
have dying people devise you their property without race discrimination
("such citizens ... shall have the same right ... to make and enforce
contracts, to sue, be parties, and give evidence, to inherit, purchase,
lease, sell, hold, and convey real and personal property and to full and
equal benefit of all laws and proceedings for the security of person and
property, as is enjoyed by white citizens").

	Eugene

> -----Original Message-----
> From: Brian Landsberg [mailto:blandsberg at pacific.edu] 
> Sent: Monday, June 11, 2007 11:09 AM
> To: DavidEBernstein at aol.com; rosentha at chapman.edu; Volokh, 
> Eugene; CONLAWPROF at lists.ucla.edu; RZietlo at utnet.utoledo.edu
> Subject: Re: 1866 Civil Rights Act A descriptive point 
> &somewordsabouttheelephant in ...
> 
> The association hypos seem somewhat beside the point.  The 
> 1866 Act is aimed at property sales and rentals and 
> commercial contracts.  
> 
> The hypos also assume equal hostility by each race to the 
> other.  Plessy also made the mistake of ignoring the 
> advantages that accrued to what it called the "dominant" 
> race.  Blacks were seeking equality, not dominance.
> 
> >>> <DavidEBernstein at aol.com> 6/11/2007 10:56 AM >>>
> 
> But you're missing the point. If hostile (or even  
> indifferent) whites had sought to join these organizations 
> and take them  over/destroy them, the organizations would 
> have just said, "you're not welcome  here" and thrown them out.  
> Indeed, if such an organization had simply  suspected that a 
> white (or for that matter, a black) who sought to join/attend 
>  was a government spy, etc., they could have unceremoniously 
> excluded him, for  whatever reason they wanted, including 
> race.  Otherwise, civil rights  groups like the NAACP could 
> have been infiltrated; black fraternities and  sororities 
> could have had their assets dissipated or seized by new 
> "members" and  so forth. 
>  
> In the absence of a presumption of freedom of association, 
> how would the NAACP have defended itself from a law like the 
> one I posited, that required, say, all organizations within 
> the state with more than 500 members to be open to all who 
> are willing to pay membership dues?
>  
> So, I'll grant you this: no one tried to enforce 
> antidiscrimination laws against African Americans, so in 
> practice, they never had to assert the right to discriminate. 
>  But I don't buy the idea that African Americans, or minority 
> groups in general, don't/can't/haven't benefit(ed) from the 
> "liberty" to discriminate, because that liberty, while it can 
> and has been used against them, also protects them from 
> hostile state action.
>  
> In a message dated 6/11/2007 1:42:35 PM Eastern Daylight 
> Time, blandsberg at pacific.edu writes:
> 
> I am not  familiar with racially discriminatory black 
> institutions in the South,  certainly not as a common 
> phenomenon.  In my book, Free at Last to Vote, I tell about 
> Ruby Tartt, a privileged white woman, who preferred to attend 
> black churches in Sumter County, Alabama; she was welcomed to 
> them.  The  NAACP did not exclude whites, but welcomed them.
> 
> 
>  
> 
> 
> 
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