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

[Volokh, Eugene]

	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.

	Eugene

> -----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 
> 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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