1st Am being trumped
Michael deHaven Newsom
mnewsom at LAW.HOWARD.EDU
Fri Dec 22 17:09:52 PST 2000
"Volokh, Eugene" wrote:
> Hmm -- I hadn't realized that Michael's proposal was limited
> to the rights of expressive associations that are "the only economic
> game in town." That seems an unusual enough hypothetical (in what
> towns is an expressive association, and only one such association, the
> "only economic game"?) that it's not easy to figure out what the right
> result should be, though I think the association wouldn't lose its
> constitutional rights just because it's the only economic game.
> But if "the only economic game in town" is the essence of
> Michael's argument, then how would any of this be relevant to the
> example that launched this whole thread, which is the bookstore
> example? I know of few towns where a religious bookstore is the only
> economic game.
It is not the essence of my argument. It is the easy case, that's all.
> I originally wrote:
> Let me see if I understand this correctly. Let's say a
> lily-white expressive association -- either one whose
> lily-whiteness relates to its message, e.g., the Ku Klux Klan or
> for that matter any other organization that endorses white
> supremacist views, or one that is lily white for other
> demographic reasons, e.g., the North Dakota Conservatives
> Association -- rejects people who do not share their views.
> Unless I'm mistaken, the suggestion is that these groups would
> *not* have the right (which even the Roberts Court seemed to
> accept as a core part of expressive association) to exclude
> people who do not share their views, because the "14th Am value"
> trumps that right.
> That's a pretty remarkable conclusion, it seems
> to me, and one that's quite corrosive of an important
> constitutional guarantee that protects us against this very sort
> of state action. Now Michael might argue that "the 14th Am
> value" should justify this cutback in constitutional protection.
> But those of us who evaluate the "14th Am value" argument ought
> to be aware that it would indeed have these quite remarkable
> Michael Newsom responded:
> Remarkable is in the eye of the beholder. It would not be
> remarkable to me if this lily-white expressive association is the
> only economic game in town. It depends on the facts and
> circumstances, not some general vague abstraction about
> expressive associations. I want to know what is at stake as far
> as social, ecomonic, political, civil and legal equality is
> concerned. Your hypothetical reveals none of the important
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