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

[michael curtis]

One common approach is to give statutes a construction that avoids serious 
constitutional problems--here association and intimate association.  That 
would leave core purposes as explicated in Jones v. Mayer pretty much in 
tact. A ban on race discrimination does not ban discrimination on other 
grounds--I will sell to you because you are my beloved son does not strike 
me as race discrimination even if the seller is white and there is a 
potential black buyer.  I will sell to a white but not a black or vice versa 
is a different matter.

Michael Curtis
----- Original Message ----- 
From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
To: <CONLAWPROF at lists.ucla.edu>
Sent: Monday, June 11, 2007 2:30 PM
Subject: RE: 1866 Civil Rights Act A descriptive 
point&somewordsabouttheelephant in ...


> 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.
>>
>>
>>
>>
>>
>>
>> ************************************** See what's free at
>> http://www.aol.com.
>>
>>
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