1866 Civil Rights Act A descriptive point&somewordsabouttheelephant in ...
VOLOKH at law.ucla.edu
Mon Jun 11 12:59:14 PDT 2007
Oh, I agree that the Court's 1866 Act decisions are limited to
race discrimination -- but my point is that it bans racially
discrimination private choice in many areas where such choice ought to
remain untrammeled: hiring nannies, choosing roommates, deciding where
to shop or where to work, and the like.
> -----Original Message-----
> From: michael curtis [mailto:curtism at bellsouth.net]
> Sent: Monday, June 11, 2007 12:18 PM
> To: Volokh, Eugene; CONLAWPROF at lists.ucla.edu
> Subject: Re: 1866 Civil Rights Act A descriptive
> point&somewordsabouttheelephant in ...
> 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
> > 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
> > 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
> >> 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
> >> 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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