# Someone tell me why I can't descriminate with my business. **URL:** \ **Category:** Great Debates\ **Created:** [May 12, 2002, 6:49pm UTC](https://boards.straightdope.com/t/someone-tell-me-why-i-cant-descriminate-with-my-business/108662 "2002-05-12T18:49:36Z")\ **Posts on this page:** 20\ **Page:** 4
**Author:** ![SenorBeef](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/senorbeef/32/2220_2.png) [@SenorBeef](https://boards.straightdope.com/u/SenorBeef)\ **Post date:** [May 13, 2002, 6:11pm UTC](https://boards.straightdope.com/t/someone-tell-me-why-i-cant-descriminate-with-my-business/108662/61 "2002-05-13T18:11:44Z")
> [@](#): > > \*Originally posted by Hamlet \* > \*\ ***Senor Beef**. In almost every post you’ve made in this thread, you’ve stated (or attempted to imply): > > Anti-discrimination laws have not created rights to be served, or to be put up in a hotel, or to have a house built for you. They have, however, stated that **IF YOU ARE GOING TO DO THESE THINGS IN THE UNITED STATES** you cannot discriminate on the basis of race, gender, etc. Nobody is forcing you to open a diner, but if you do, you can’t refuse service to somebody because they are black. \*\* There’s no way you could provide services or goods on your own property (a property right) without being subject to that rule, then. Which essentially amounts to: “In order to excercise my property right of providing goods and services with my property, I have to submit to limitations on those rights because some congressmen decided to try to fix a racial problem with legislation.” Which is fine, if you believe that’s a good thing. I question the government coming in to heavy handedly restrict property rights to attempt to fix a social problem. > [@](#): > > \*\* > > You also continue to say: > > Well, here you are just plain wrong. Factually wrong. In your ideology, you may think that the government SHOULDN’T be able to do these things, but to say they don’t is a gross misstatement of the facts and the history of the United States. \*\* It is very clear that those who founded this country believed rights to be innate. Because later generations decided they were serfs of the government, and that the government could decide for them what rights they could excercise and couldn’t, does not change that principle. Governments cannot create or destroy rights. They can create or destroy privileges. If everyone here is so convinced that they’re the same thing, then this country is going to hell in a hand basket. Hopefully we’ll be happy little serfs. > [@](#): > > \*\* > I may be off base, but I would be willing to bet that you were not even alive while government-sanctioned segregation was going occurring. Don’t worry, neither was I. However, I took the time to research, learn, and hear the stories of how the “Jim Crow” laws, segregation, and racial hatred did nearly irreparable harm to this country. I suggest you do the same. \*\* I’m not suggesting that large scale racial segregation (particularly by the government) is not a Bad Thing. But I question the forceful, governmentally intrusive, solution. ---
**Author:** ![SenorBeef](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/senorbeef/32/2220_2.png) [@SenorBeef](https://boards.straightdope.com/u/SenorBeef)\ **Post date:** [May 13, 2002, 6:15pm UTC](https://boards.straightdope.com/t/someone-tell-me-why-i-cant-descriminate-with-my-business/108662/62 "2002-05-13T18:15:51Z")
> [@](#): > > \*Originally posted by kabbes \* > \*\*Rights don’t even have any meaning beyond the power to enforce them. Of _course_ your private property is held under suffrance of government since government has the _power_ to remove it. \*\* And we’re all spineless little serfs at the complete control of our government. Gotcha. The whole idea of a Constitutional Republic is built on the idea that there are innate, unalienable rights. Should this premise be discarded, then the Constitutional Republic will not remain Constitutional or a republic. > [@](#): > > \*\* > Rights are not absolute, although it could be argued that the _concept_ of (certain) rights are absolute. And the notion that rights are inherent is fair enough but the reality of life is that (despite what certain aspirational documents might say) they are granted. \*\* You speak of privileges. If rights are so flexible and up to arbitrary restriction, then they’re not rights. If you believe we’re all just serfs of our government, who has graciously granted us certain privileges… > [@](#): > > \*\* > You are not granted the right to discriminate on the basis of colour. Diddums. > > pan \*\* Why limit it to color? Are you suggesting I’m racist? Really, I’m just trying to get my right back to discriminate against those damn cripples. 🙂 ---
**Author:** ![SenorBeef](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/senorbeef/32/2220_2.png) [@SenorBeef](https://boards.straightdope.com/u/SenorBeef)\ **Post date:** [May 13, 2002, 6:21pm UTC](https://boards.straightdope.com/t/someone-tell-me-why-i-cant-descriminate-with-my-business/108662/63 "2002-05-13T18:21:22Z")
> [@](#): > > \*Originally posted by Attrayant \* > \*\* > > How is it costing them? Doesn’t the server get compensated for their labor? \*\* The right to free speech does not cost anyone anything - no one has to listen, no one has to make any effort for you. The right to ‘be served by anyone, even against their will’ costs the forced labor of the person who does not wish to serve. > [@](#): > > \*\* > That sounds to me like what **Beef** is saying. \*\* In general, yes. But the justification of my position is a strong belief in property rights, etc. > [@](#): > > \*\* > But The People in this land of supposed equality, by way of their government, have decided that if you open a business that promises to render goods & services in exchange for compensation from person A, you must do the same thing (within reason, and as defined & regulated by law) for persons B, C & D. \*\* Equality is a great reason why the government should not be able to discriminate in any fashion along lines of race, disability, etc. However, to extend this to all private businesses (and this is a fairly recent thing, 50 years or so), is a limitation or invalidation of property rights. I’m not trying to talk about racial segregation here. I think property owners can refuse surface to anyone - white people, black people, green people, young people, old people, people with large foreheads, whatever. They should have the ultimate discretion about who they serve, for whatever reason they wish. > [@](#): > > \*\* > Unless your “beef” is really with the core assumption of equal rights for all. \*\* Have I said anything to suggest that? ---
**Author:** ![amarinth](https://avatars.discourse-cdn.com/v4/letter/a/3be4f8/32.png) [@amarinth](https://boards.straightdope.com/u/amarinth)\ **Post date:** [May 13, 2002, 6:28pm UTC](https://boards.straightdope.com/t/someone-tell-me-why-i-cant-descriminate-with-my-business/108662/64 "2002-05-13T18:28:12Z")
> [@](#): > > \*Originally posted by SenorBeef \* > \*\* > I’m not suggesting that large scale racial segregation (particularly by the government) is not a Bad Thing. But I question the forceful, governmentally intrusive, solution. \*\* What then is the non-forceful, non-governmentally intrusive solution? ---
**Author:** ![Jodi](https://avatars.discourse-cdn.com/v4/letter/j/7feea3/32.png) [@Jodi](https://boards.straightdope.com/u/Jodi)\ **Post date:** [May 13, 2002, 6:28pm UTC](https://boards.straightdope.com/t/someone-tell-me-why-i-cant-descriminate-with-my-business/108662/65 "2002-05-13T18:28:50Z")
SENORBEEF – > [@](#): > > I don’t believe that anyone has a right not to be discriminated against. Again, it depends on what you mean by “right.” Perhaps you’d like to define that term, so that we both can (we all can) be clear what we are talking about. You have in this country a “right” not to be discriminated against on the basis of religion, race, national origin, etc. because Congress _said_ you do. If you don’t like the use of the word “right” in that context, then pick another word – it doesn’t change the fact that Congress can and did by legislative fiat pass a law that had the effect of infringing on the most expansive property rights of others. This is not subject to argument – it’s the fact, jack. Now, you may not _like_ it, but so what? And you may argue that Congress did not have the _ability_ to limit the property rights in question – but that was the issue in _Heart of Atlanta_, and the Supreme Court said Congress _did_ have that ability. > [@](#): > > In order to have a ‘right’ not to be discriminated against, you’re essentially forcing (through implied legal threat, in this case) someone to provide you with a service. Yep. Just like when you say to someone “you cannot shout obscenities outside a school” you are “forcing them” to be quiet – despite their right to free speech. Just like when you say to someone “you cannot carry your gun into a federal building” you are “forcing them” to leave their gun outside – arguably despite their right to bear arms. Just like when you say to someone “you cannot smoke peyote buds in public” you are “forcing them” to refrain from toking up – despite their right to freedom of religion. Again, you appear to be arguing that any right (all rights) must exist without limitation or infringement. That simply is not true of _any_ right we have. > [@](#): > > One cannot derive a right at the expense of another person. You don’t have a right to be served by me if I decide I don’t want to provide a service to you. Again, the right to not “derive” from anyone else – it derives fromm an Act of Congress. I’m not being sarcastic here, but – you are clear on the meaning of “derive,” right? You’re not using it when another word would do better? > [@](#): > > Hence I don’t think there’s a conflict of rights in this case. As I have already said, strictly speaking it is _not_ a conflict of rights – it is a conflict of an affirmative right (property) with a prohibition (you cannot discriminate). But what difference does that make? Clearly you understand that the two conflict; that is the premise of your entire OP. > [@](#): > > I don’t believe that Congress has the ability to create or destroy rights. _:: Shrug ::_ Believe what you like. And as I said, if you don’t like the use of the word “right” in this context, pick another one. But it is indisputable that Congress _did_ prohibit discrimination on the basis of certain enumerated bases in places of public accommodation, via the 1964 Civil Rights Act. If you are going to argue that Congress did not have the ability to do that, then you’re going to have to articulate _why_ then couldn’t do that. Because they did. > [@](#): > > And hence you’re limiting property rights and forcing the innkeeper to do something he does not wish to do. Yes. For like the fourth time, yes. There is an obvious conflict between the right of the innkeeper/discriminator and the right (prohibition) of the person the innkeeper seeks to discriminate against. No one is saying the discriminator is not being forced to do something he doesn’t want to do, i.e., refrain from discriminating. He very clearly is. > [@](#): > > Rights are innate. Rights cannot be created by a legislative body. Rights are innate, huh? And where do they come from, then? Who decides what rights you have or do not have? Because I hereby declare that the right to be free from discrimination is also “innate” and Congress was merely formalizing that pre-existing right through the Civil Rights Act. Who are you to tell me I am wrong? > [@](#): > > The idea that “You have to serve me against your will” is a right is silly to me. Once again – _:: shrug ::_. I have a right (legislatively set forth, innate or not) to expect you to refrain from discriminating against me. If that includes serving me when you’d rather not, so be it. Your opinion that such a result is “silly” is just that – your opinion. > [@](#): > > Congress has written a law which forces people to, in some cases, do what they do not wish to do, and it does this by limiting (or infringing upon) their property rights. It did not create a right, because legislative bodies have no ability to create rights. They can merely recognize and protect them, or try to suppress them. Fine. Then consider that Congress was “merely recognizing” a pre-existing right to be free from discrimination. Doesn’t change the analysis one iota. > [@](#): > > There’s a conflict of property rights and the government deciding that it would force people to serve who they may not wish to serve, and hire who they may not wish to hire, under threat of legal action or force. Yep. That’s what it is, alright. > [@](#): > > In any case, if people don’t have the right to descriminate who can use their property, the property isn’t really theirs, I don’t think, it’s just something the government has decided they were gracious enough to let them use. It invalidates the idea of property rights, which were a core principle of this country’s founding. So anything less that an unfettered right constitutes no right? Surely you see that logically this makes no sense. If I give you a slice of pie, and not the whole pie, would you say you have no pie? If this is your position (anything less than everything equals nothing) then allow me to advise you that you have _no_ rights at all. None. Because every right you have is subject to some limitation – if that means the right doesn’t exist, then none of them exist. > [@](#): > > Fair enough, I suppose. Although simply because they codified it and applied it consistently doesn’t inherently suggest it isn’t arbitrary. True 'nough. But you can judge the arbitrariness of the list by reviewing it; it is not on its face arbitrary. It contains most of the places you would reasonably consider to be accommodating the public – restuarants, hotels, theaters, libraries, etc. I asked “Can you think of another way to fix it?” to which you reply “I’m not so quick to assume that people having control over their own property is a problem.” That, of course, is not the problem I was referring to – I was referring to racial and other types of discrimination. So I ask again: If your position is that Congress cannot step in to rectify _that_ problem, then can you think of another way to fix it? > [@](#): > > If I am forced to hire or serve you, even though I do not wish to do so, it is certainly derived from my labor. Incorrect. Please look up the term “derive.” It may be that the _exercise_ of your right compels someone else to do something, but the right does not “derive” from that compelled action. Surely you can see that, logically, it could not. You cannot exercise a right that doesn’t exist until it has been exercised. > [@](#): > > “The right to be served by someone who does not wish to serve you” is as unrealistic as “The right to have a house built for you”. A third time _:: Shrug ::_. This is, apparently, your opinion. I would submit that the fact that being free from discrimination is not “unrealistic” but is instead “realistic” is shown by the fact the right exists and is, therefore, real. > [@](#): > > And, of course, this alone can be used to justify a limitation or suppression of any right. Of course it can. And is. And does. You apparently want to take it upon yourself to decide that the creation (or, if you like, recognition) of this right is “unrealistic” and “unjustified” or even “silly.” But that is your thesis to prove, and does not become true simply because you said so. Saying so just makes it your opinion. ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [May 13, 2002, 6:49pm UTC](https://boards.straightdope.com/t/someone-tell-me-why-i-cant-descriminate-with-my-business/108662/66 "2002-05-13T18:49:08Z")
**Beef:** > [@](#): > > The whole idea of a Constitutional Republic is built on the idea that there are innate, unalienable rights. Should this premise be discarded, then the Constitutional Republic will not remain Constitutional or a republic. Did you _read_ the bit I quoted from Johnson v. McIntosh? Good to know that the Native Americans had no innate, unalienable rights whatsoever, huh? ---
**Author:** ![zwaldd](https://avatars.discourse-cdn.com/v4/letter/z/a9adbd/32.png) [@zwaldd](https://boards.straightdope.com/u/zwaldd)\ **Post date:** [May 13, 2002, 7:25pm UTC](https://boards.straightdope.com/t/someone-tell-me-why-i-cant-descriminate-with-my-business/108662/67 "2002-05-13T19:25:14Z")
> [@](#): > > \*Originally posted by SenorBeef \* > **Rights also cannot derive at the expense of others. You cannot say “Everyone has the right to have a house built for them”, because it requires time, material, and labor from others in order to fulfill that “right”.** So does the right to an attorney (6th amendment). ---
**Author:** ![sailor](https://avatars.discourse-cdn.com/v4/letter/s/a587f6/32.png) [@sailor](https://boards.straightdope.com/u/sailor)\ **Post date:** [May 13, 2002, 7:37pm UTC](https://boards.straightdope.com/t/someone-tell-me-why-i-cant-descriminate-with-my-business/108662/68 "2002-05-13T19:37:57Z")
\>\>The right to be served by someone who does not wish to serve you. . . You just described taxes \>\> Do people have a right to have a house built for them? A right to free ice cream? If the law says so, yes. (Of course, we can discuss the law should not say so but it _can_ say so) \>\> But the justification of my position is a strong belief in property rights, etc. Property rights are not unlimited. They are subject to all sorts of limitations and have always been. ---
**Author:** ![lucwarm](https://avatars.discourse-cdn.com/v4/letter/l/e19adc/32.png) [@lucwarm](https://boards.straightdope.com/u/lucwarm)\ **Post date:** [May 13, 2002, 7:41pm UTC](https://boards.straightdope.com/t/someone-tell-me-why-i-cant-descriminate-with-my-business/108662/69 "2002-05-13T19:41:20Z")
> [@](#): > > [I posed a hypothetical about a public utility gouging its customers and cutting off those who do not pay] > > \*\*That’s an entirely different can of worms, I think. Without giving it some thought, I’m not sure what, precisely, my position would be. \*\* Well, if your position is that the government should never force person A to serve person B, my hypo shows that your position is very extreme. (Your position is also contrary to years of established precedent. Long before the civil rights era, public utilities/common carriers had a certain “duty to serve.”) If you think that public utilities are somehow different or special, I would agree with you. But that only demonstrates my earlier point - that it is proper for the government to treat certain kinds of property differently in terms of the level of regulation applied. Please give it some thought and see if you still think that all property should be treated the same. ---
**Author:** ![Guinastasia](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/guinastasia/32/5751_2.png) [@Guinastasia](https://boards.straightdope.com/u/Guinastasia)\ **Post date:** [May 13, 2002, 8:10pm UTC](https://boards.straightdope.com/t/someone-tell-me-why-i-cant-descriminate-with-my-business/108662/70 "2002-05-13T20:10:55Z")
> [@](#): > > Why limit it to color? Are you suggesting I’m racist? Really, I’m just trying to get my right back to discriminate against those damn cripples. :eek: Please tell me you’re kidding. Please. I’m begging you, you’ve got to be kidding. ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [May 13, 2002, 8:31pm UTC](https://boards.straightdope.com/t/someone-tell-me-why-i-cant-descriminate-with-my-business/108662/71 "2002-05-13T20:31:56Z")
**Senor Beef,** I think you are looking at property rights too much in isolation. You build your diner in order to make money. To make said money, you must take in foodstuffs, then sell them (prepared) to diners at a higher price. And how does this happen? Your tomatoes get shipped to you from California. Your beef comes from Nebraska. Your pickles come from Pittsburgh. Your diners drive to your store or walk in off the sidewalk. IOW, the profitability of your diner is utterly dependent on the government-provided free flow of goods and people. Your foodstuffs get delivered to you on public roads. Your customers come to you on public roads or on public sidewalks. The government, in exchange for allowing you to use **its** property, imposes a covenant - you use our property, and you can’t discriminate when you take the foodstuffs you received through the use of our roads and serve it to diners who also came to give you money by use of our roads. It’s that simple. The government is exercising its property rights (described in the Constitution as “regulation of interstate commerce.”) Your property and your property rights are, without the aid of the government, valueless. If you want to make a profit from the use of the government’s roads, you have to obey the rules the government imposes on the use of said roads. Sua ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [May 13, 2002, 8:36pm UTC](https://boards.straightdope.com/t/someone-tell-me-why-i-cant-descriminate-with-my-business/108662/72 "2002-05-13T20:36:07Z")
::: wonders what the effect of saying the words “substantive due process” would be :::: ::: contemplates the trainwreck of 95% of the lawyers on this board that would ensue ::: ::: wisely declines to offer an opinion on the subject ::: 😃 ---
**Author:** ![Truth\_Seeker](https://avatars.discourse-cdn.com/v4/letter/t/5fc32e/32.png) [@Truth\_Seeker](https://boards.straightdope.com/u/Truth_Seeker)\ **Post date:** [May 13, 2002, 8:45pm UTC](https://boards.straightdope.com/t/someone-tell-me-why-i-cant-descriminate-with-my-business/108662/73 "2002-05-13T20:45:16Z")
Why don’t you elaborate a bit on the philosophical basis of your theory of rights? It seems hopelessly stuck in the 18th century. You keep making blanket statements like: > [@](#): > > \*\*Rights are innate. Rights cannot be created by a legislative body. Rights also cannot derive at the expense of others. You cannot say “Everyone has the right to have a house built for them”, because it requires time, material, and labor from others in order to fulfill that “right”. \*\* You should be aware that all of these propositions are highly debatable, at best. At the very least there are “positive rights” and “negative rights” Positive rights are, indeed, derived from a claim on the active cooperation of others. Nor does the Lockeian view of the social contract necessarily preclude limiting — or rather defining — property rights to preclude societally damaging discrimination. In any case, you don’t actually believe that rights cannot be dependent on the required cooperation of others. You are essentially advocating a “state of nature” and we all know what that’s like. For example, defending your property rights depends on the cooperation of society, whether willing or unwilling. Ditto the common defense, etc., etc. Philosophically, being required to pay taxes under the social contract is no different than being required to allow your property to be used in other ways. ---
**Author:** ![The\_Ryan](https://avatars.discourse-cdn.com/v4/letter/t/7feea3/32.png) [@The\_Ryan](https://boards.straightdope.com/u/The_Ryan)\ **Post date:** [May 13, 2002, 8:57pm UTC](https://boards.straightdope.com/t/someone-tell-me-why-i-cant-descriminate-with-my-business/108662/74 "2002-05-13T20:57:32Z")
> [@](#): > > \*Originally posted by Gadarene \* > May I assume, then, that I can find this “right to be an asshole” in the Constitution? You quoted my statement that rights are not created by laws, so obviously you saw it. Yet apparently you didn’t bother reading it. > [@](#): > > By the way, I’d like to exercise my right to act in ways that other people consider to be “being an asshole” by coming to your house and taking all your stuff. The right to be an asshole does not imply the right for assholes to do whatever they want, anymore than the right to be a Christian implies a right for Christians to do whatever they want. Since you were unable to understand my original statement, let me reword it: > [@](#): > > The idea that “I think you’re being an asshole” is insufficient to take away someone’s right is basic and fundamental. Without that principle, democracy is meaningless > [@](#): > > Private property does exist only on the sufferance of the government. I’m saying “the government does not have the right to abridge private property rights just because it feels like it”. You seem to be saying “the government does have the power to abridge private property rights just because it feels like it”. Those statements do not contradict each other. Hamlet > [@](#): > > Well, here you are just plain wrong. Factually wrong. In your ideology, you may think that the government SHOULDN’T be able to do these things, but to say they don’t is a gross misstatement of the facts and the history of the United States. If you think he is factually wrong, then at least one of us is grossly misunderstanding his position. My understanding of his position is that the government cannot change what is moral and immoral for it to do. For you to say his beliefs about morality are “factually wrong” is absurd. andros [qoute]Hard to refute dogma, innit? [/quote] That word has deragatory connotations. There is nothing close minded about my position. ---
**Author:** ![The\_Ryan](https://avatars.discourse-cdn.com/v4/letter/t/7feea3/32.png) [@The\_Ryan](https://boards.straightdope.com/u/The_Ryan)\ **Post date:** [May 13, 2002, 9:35pm UTC](https://boards.straightdope.com/t/someone-tell-me-why-i-cant-descriminate-with-my-business/108662/75 "2002-05-13T21:35:06Z")
SuaSponte > [@](#): > > The government, in exchange for allowing you to use **its** property, imposes a covenant - you use our property, and you can’t discriminate when you take the foodstuffs you received through the use of our roads and serve it to diners who also came to give you money by use of our roads. While an argument could be made that such a contract would be valid, that is **not** what’s happening, except perhaps in some metaphorical sense. And I doubt whether a contract specifying how a third party can act would stand up (the trucking company is the one that’s dealing directly with the government property). ---
**Author:** ![Jodi](https://avatars.discourse-cdn.com/v4/letter/j/7feea3/32.png) [@Jodi](https://boards.straightdope.com/u/Jodi)\ **Post date:** [May 13, 2002, 9:43pm UTC](https://boards.straightdope.com/t/someone-tell-me-why-i-cant-descriminate-with-my-business/108662/76 "2002-05-13T21:43:37Z")
::: wonders what the effect of saying the words “substantive due process” would be :::: _We turn into pumpkins!_ Actually, I wonder why you think that would produce a “train wreck effect”? While the Commerce Clause provided the U.S. Supreme Court in _Heart of Atlanta_ with grounds to _sustain_ the 1964 Civil Rights Act, that doesn’t mean the Court did not look at other reasons put forth by the innkeepers as reason to _strike down_ the Act – it did look at them, and rejected them. This includes the Due Process Clause, of which the Court said: [quote] Nor does the Act deprive appellant of liberty or property under the Fifth Amendment. The commerce power invoked here by the Congress is a specific and plenary one authorized by the Constitution itself. The only questions are: (1) whether Congress had a rational basis for finding that racial discrimination by motels affected commerce, and (2) if it had such a basis, whether the means it selected to eliminate that evil are reasonable and appropriate. If they are, appellant has no “right” to select its guests as it sees fit, free from governmental regulation. There is nothing novel about such legislation. Thirty-two States now have it on their books either by statute or executive order and many cities provide such regulation. Some of these Acts go back fourscore years. It has been repeatedly held by this Court that such laws do not violate the Due Process Clause of the Fourteenth Amendment. Perhaps the first such holding was in the _Civil Rights Cases_ themselves, where Mr. Justice Bradley for the Court inferentially found that innkeepers, “by the laws of all the States, so far as we are aware, are bound, to the extent of their facilities, to furnish proper accommodation to all unobjectionable persons who in good faith apply for them.” _Heart of Atlanta_, 379 U.S. at 258-59 (footnote and citation omitted). ---
**Author:** ![SenorBeef](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/senorbeef/32/2220_2.png) [@SenorBeef](https://boards.straightdope.com/u/SenorBeef)\ **Post date:** [May 13, 2002, 9:51pm UTC](https://boards.straightdope.com/t/someone-tell-me-why-i-cant-descriminate-with-my-business/108662/77 "2002-05-13T21:51:20Z")
> [@](#): > > \*Originally posted by Jodi \* > \*\*SENORBEEF – > > Again, it depends on what you mean by “right.” Perhaps you’d like to define that term, so that we both can (we all can) be clear what we are talking about. > > You have in this country a “right” not to be discriminated against on the basis of religion, race, national origin, etc. because Congress _said_ you do. If you don’t like the use of the word “right” in that context, then pick another word – it doesn’t change the fact that Congress can and did by legislative fiat pass a law that had the effect of infringing on the most expansive property rights of others. \*\* “Privilege” seems appropriate. > [@](#): > > \*\* > This is not subject to argument – it’s the fact, jack. Now, you may not _like_ it, but so what? And you may argue that Congress did not have the _ability_ to limit the property rights in question – but that was the issue in _Heart of Atlanta_, and the Supreme Court said Congress _did_ have that ability. > > Yep. Just like when you say to someone “you cannot shout obscenities outside a school” you are “forcing them” to be quiet – despite their right to free speech. Just like when you say to someone “you cannot carry your gun into a federal building” you are “forcing them” to leave their gun outside – arguably despite their right to bear arms. Just like when you say to someone “you cannot smoke peyote buds in public” you are “forcing them” to refrain from toking up – despite their right to freedom of religion. Again, you appear to be arguing that any right (all rights) must exist without limitation or infringement. That simply is not true of _any_ right we have. \*\* That’s true. And I don’t believe I ever made the argument that every right is absolute in every single case. However, I do believe there has to be compelling state interest, a rational basis, and minimal intrusion involved in any restriction of any right. In this particular case, I believe the government was overly invasive of the right to property, with the intent to fix a social problem, which I’m not sure is it’s job in the first place. > [@](#): > > \*\* > > Again, the right to not “derive” from anyone else – it derives fromm an Act of Congress. I’m not being sarcastic here, but – you are clear on the meaning of “derive,” right? You’re not using it when another word would do better? \*\* I mean to say that the ‘function’ or ‘product’ of a right cannot be had at the expense of another person. You don’t have a right to oral sex, because no one can be obligated by a right. (Yes, I’m just making up example rights at random. Whee.) > [@](#): > > \*\* > As I have already said, strictly speaking it is _not_ a conflict of rights – it is a conflict of an affirmative right (property) with a prohibition (you cannot discriminate). But what difference does that make? Clearly you understand that the two conflict; that is the premise of your entire OP. \*\* That’s fine. I suppose I was responding to other’s who suggested that there was a right not to be discriminated against. > [@](#): > > \*\* > _:: Shrug ::_ Believe what you like. And as I said, if you don’t like the use of the word “right” in this context, pick another one. But it is indisputable that Congress _did_ prohibit discrimination on the basis of certain enumerated bases in places of public accommodation, via the 1964 Civil Rights Act. If you are going to argue that Congress did not have the ability to do that, then you’re going to have to articulate _why_ then couldn’t do that. Because they did. \*\* I’m not so sure they did or didn’t have the power. So long as the Supreme Court agrees with them, they can pretty much fuck us over in any way they choose. So the debate there is a lot more sticky. What I am questioning is whether or not Congress should use a broad invasion (and that’s what I see this as) of property rights in order to try a social problem - a problem it wasn’t obligated to fix in the first place. > [@](#): > > \*\* > Yes. For like the fourth time, yes. There is an obvious conflict between the right of the innkeeper/discriminator and the right (prohibition) of the person the innkeeper seeks to discriminate against. \*\* I still don’t like the use of the term ‘right’ to describe a restriction on another right. > [@](#): > > \*\* > No one is saying the discriminator is not being forced to do something he doesn’t want to do, i.e., refrain from discriminating. He very clearly is. > > Rights are innate, huh? And where do they come from, then? Who decides what rights you have or do not have? \*\* Rights are inherent in being human. If you like, they come from God. Otherwise, they just stem from nature. As to who decides what rights are - thats a whole different debate. > [@](#): > > \*\* > Because I hereby declare that the right to be free from discrimination is also “innate” and Congress was merely formalizing that pre-existing right through the Civil Rights Act. Who are you to tell me I am wrong? \*\* Your ‘right’ has a cost to other people to excercise. People have to be forced to do what they do not wish to do for your ‘right’ to be fulfilled. Hence, I don’t believe it can be a right. Otherwise, you can pretty much call anything Congress does as a right. It’s an ambiguous issue. > [@](#): > > \*\* > Once again – _:: shrug ::_. I have a right (legislatively set forth, innate or not) to expect you to refrain from discriminating against me. If that includes serving me when you’d rather not, so be it. Your opinion that such a result is “silly” is just that – your opinion. \*\* It is my opinion. But tell me how your ‘right’ is logically different from saying “I have a right to a house. Go get some wood and build me one.”? > [@](#): > > \*\* > Fine. Then consider that Congress was “merely recognizing” a pre-existing right to be free from discrimination. Doesn’t change the analysis one iota. \*\* Again, a ‘cost’ issue. Build me a house. > [@](#): > > \*\* > Yep. That’s what it is, alright. > So anything less that an unfettered right constitutes no right? Surely you see that logically this makes no sense. If I give you a slice of pie, and not the whole pie, would you say you have no pie? If this is your position (anything less than everything equals nothing) then allow me to advise you that you have _no_ rights at all. None. Because every right you have is subject to some limitation – if that means the right doesn’t exist, then none of them exist. \*\* You’re right. I take back what I said. It was too broad. > [@](#): > > \*\* > > True 'nough. But you can judge the arbitrariness of the list by reviewing it; it is not on its face arbitrary. It contains most of the places you would reasonably consider to be accommodating the public – restuarants, hotels, theaters, libraries, etc. \*\* The list of things that you couldn’t discriminate for are arbitrary. I can’t discriminate against people because of age - but I can because of hair color. [QUOTE] \*\* I asked “Can you think of another way to fix it?” to which you reply “I’m not so quick to assume that people having control over their own property is a problem.” That, of course, is not the problem I was referring to – I was referring to racial and other types of discrimination. So I ask again: If your position is that Congress cannot step in to rectify _that_ problem, then can you think of another way to fix it? [QUOTE] \*\* Social change? Education? I’m not sure. It’s a bit of a tall order to ask me how to fix racism. I’m just saying that I’m not sure that A) It’s Congress’ job to try to fix the problem, and B) that restricting property rights is the proper way to do it if it is their problem to fix. > [@](#): > > \*\* > Incorrect. Please look up the term “derive.” It may be that the _exercise_ of your right compels someone else to do something, but the right does not “derive” from that compelled action. Surely you can see that, logically, it could not. You cannot exercise a right that doesn’t exist until it has been exercised. \*\* To clarify, I meant that the ‘product’ of the right - the actual labor - is derived from someone else. To be less confusing, in order for your ‘right’ to be fulfilled, it requires (unwanted) labor from me. > [@](#): > > \*\* > > A third time _:: Shrug ::_. This is, apparently, your opinion. I would submit that the fact that being free from discrimination is not “unrealistic” but is instead “realistic” is shown by the fact the right exists and is, therefore, real. \*\* Again, to be free from discrimination, you must force me to do something I don’t want to do. If you believe that someone has the right to force another person to do something against their will - that can be your belief - but it’s fundamentally at odd’s with my idea of a right. > [@](#): > > \*\* > Of course it can. And is. And does. You apparently want to take it upon yourself to decide that the creation (or, if you like, recognition) of this right is “unrealistic” and “unjustified” or even “silly.” But that is your thesis to prove, and does not become true simply because you said so. Saying so just makes it your opinion. \*\* True. ---
**Author:** ![SenorBeef](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/senorbeef/32/2220_2.png) [@SenorBeef](https://boards.straightdope.com/u/SenorBeef)\ **Post date:** [May 13, 2002, 9:54pm UTC](https://boards.straightdope.com/t/someone-tell-me-why-i-cant-descriminate-with-my-business/108662/78 "2002-05-13T21:54:36Z")
> [@](#): > > \*Originally posted by zwaldd \* > \*\* > So does the right to an attorney (6th amendment). \*\* That’s a good point, but in this case, we’re not talking about a private citizen, but the state’s obligation to give you representation should they choose to impose a criminal trial on you. ---
**Author:** ![SenorBeef](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/senorbeef/32/2220_2.png) [@SenorBeef](https://boards.straightdope.com/u/SenorBeef)\ **Post date:** [May 13, 2002, 9:56pm UTC](https://boards.straightdope.com/t/someone-tell-me-why-i-cant-descriminate-with-my-business/108662/79 "2002-05-13T21:56:32Z")
> [@](#): > > \*Originally posted by Guinastasia \* > \*\* > > :eek: > > Please tell me you’re kidding. Please. I’m begging you, you’ve got to be kidding. \*\* Hey, don’t forget, I’m the Crazy Misogynistic Evil Cripple Hating Guy! ---
**Author:** ![SenorBeef](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/senorbeef/32/2220_2.png) [@SenorBeef](https://boards.straightdope.com/u/SenorBeef)\ **Post date:** [May 13, 2002, 9:59pm UTC](https://boards.straightdope.com/t/someone-tell-me-why-i-cant-descriminate-with-my-business/108662/80 "2002-05-13T21:59:15Z")
> [@](#): > > \*Originally posted by lucwarm \* > \*\* > > Well, if your position is that the government should never force person A to serve person B, my hypo shows that your position is very extreme. (Your position is also contrary to years of established precedent. Long before the civil rights era, public utilities/common carriers had a certain “duty to serve.”) > > If you think that public utilities are somehow different or special, I would agree with you. But that only demonstrates my earlier point - that it is proper for the government to treat certain kinds of property differently in terms of the level of regulation applied. > > Please give it some thought and see if you still think that all property should be treated the same. \*\* That’s true… and to be honest, I’m not sure exactly how public utilities work. Aren’t they subsidized and publically funded to a certain extent? I think I probably came off a bit more absolutist than I meant to be. I seem to sound as if I didn’t think any right could be restricted in any way, ever. Rather, I question the government limiting my right to discriminate on my property - to try to fix a social problem. [Previous page](https://boards.straightdope.com/t/someone-tell-me-why-i-cant-descriminate-with-my-business/108662.md?page=3) [Next page](https://boards.straightdope.com/t/someone-tell-me-why-i-cant-descriminate-with-my-business/108662.md?page=5)