Someone tell me why I can't descriminate with my business.

[Gadarene]

over time the definition of “interstate commerce” has been broadened to include pretty much any commerce at all.

Not quite. The Court has been very reluctant recently to give Congress the power to regulate non-economic activity involving commercial goods if there is no stated way in which interstate commerce is specifically affected. See United States v. Lopez, 514 U.S. 549 (1995) (where the Gun-Free School Zones Act did not sufficiently affect interstate commerce), and United States v. Morrison, 529 U.S. 598 (2000) (where the Violence Against Women Act did not regulate activity affecting interstate commerce, despite voluminous studies showing the economic effects of violence against women).

Heart of Atlanta, mentioned by Jodi, was predicated in part on “evidence showing the consequences of racial discrimination by motels and restaurants on interstate commerce.” Morrison, 529 U.S. at 635 (J. Souter dissenting). Further, Wickard v. Filburn, 317 U.S. 111 (1942) allowed the regulation of wheat grown for personal use on the presumption that such activity, in the aggregate, would have a substantial effect on interstate commerce. See also United States v. Darby, 312 U.S. 100, 118 (1941) (“The power of Congress … extends to those activities intrastate which so affect interstate commerce or the exercise of the power of Congress over it as to make regulation of them appropriate means to the attainment of a legitimate end, the exercise of the granted power of Congress to regulate interstate commerce”).

Lopez and Morrison, however, seem to have pulled back from the “substantial effect” test, at least as it’s manifested by statistical evidence in Heart of Atlanta. That is, if Heart of Atlanta were decided by the Rehnquist Court today, I’m not so sure that it wouldn’t have come out the other way; they might well have held that forbidding hotels to discriminate on the basis of race was not justified by Congress’ commerce powers.

[DPWhite]

The federal laws get their power out of the interstate commerce clause because the federal government is limited to the powers granted in the constitution. As such it is still the most powerful government the world has ever seen. But it does have its limits. Congress, in a moment that it took aside from partisan bickering and fund raising for reelection, noted that the interstate economy belonged to everyone and regulated it in a way that gave everyone access equally, and prescribed remedies for those who violated it.

So what happens if the business doesn’t touch on interstate commerce? Well, the federal constitution gives rights to the state and the people where the federal constitution is limited to act. Most states prohibit racial discrimination and access to the economy of the state is protected only for those competitors willing to abide by the rules.

In short, you can’t have a business that doesn’t involve the state or federal economy. Business by its nature means that you deal with other people. You can own your business, but you can’t own the economy, everyone holds the economy through their governments.

As a practical matter, suppose you are the sole employee of your own house cleaning business. You go to other people’s houses to clean them. You don’t tell anyone, but you refuse any new customer who has white skin because you don’t like white people. You tell such potential new customers that you have too much business now as it is. No one is going to come after you and sue you.

[Monty]

Gaspode: Remember Smirnoff (the comic, not the booze)? “America…just like Russia…I saw a sign at a 7-11 that said ‘No shoes, no shirt, no service.’ Just like Russia! Back in Russia, that’s exactly what the store had: no shoes, no shirt, and no service!”

[The_Ryan]

Er, “the shoes they’re wearing”, not their.

It’s kinda strange that you noticed that but not your thread title.

wring

your business is a public entity.

How?

Businesses are regulated. If you’re filing taxes and claim business expenses, have registered your business w/the state, collecting taxes, claiming exemptions etc. it makes it a ‘public’ business.

Saying “it’s public because it’s regulated” just boils down to “it’s public because we say it is”.

Jodi

Whether the business is privately-owned or not doesn’t matter; the question is whether it is a place of public accommodation – i.e., open to the public.

You’re still begging the question.

Just because you own something doesn’t mean you have the unlimited right to use it however you like in every case. When your rights conflict with others’, then some balancing between the two must be struck.

When your rights conflict with other people’s rights, that is one thing. Conflicting with other people’s interests is another entirely.

Congress determined that the negative societal impact of discrimination (most specifically at that time, racial discrimination) outweighed the right of owners/operators of public accommodations to only serve whom they’d like.

IOW, “you don’t have the right to do it because we don’t like it”.

Because your right to serve whom you want does not outweigh the rights of others to be free from discrimination in businesses open to the public.

There is no such right.

december

These laws were considered necessary to overcome 100 years of racial discrimination, Jim Crow, etc. If one business discriminates against a certain group, they can always go elsewhere. However, when the preponderance of businessess discriminate against them, they need some kind of remedy.

What you are describing is monopolistic behavior, and can be dealt with through anti-trust legislation.

*Originally posted by berdollos *
Well, for one, our society almost went down the drain with the kind of apartheid we had before the 50s and 60s.

What country do you live in? The US never had an apartheid policy towards blacks.

other than it led to very divisive and dangerous consequences for our society.

You really think integrated lunch counters were the primary focus of the civil rights movement? As opposed to, say, not getting murdered just because a white person doesn’t like you? The bus boycott was successful without any statuatory intervention (and as a monopoly, such intervention would have been justified).

king of spain

IIRC, the legal justification in the U.S. is that the Constitution gives the federal government the right to regulate interstate commerce,

That’s the justification for federal laws.

astro

Like it or not the ownership of a small business in a modern capitalist economy (and before) touches so many aspects of public sector policy that the two are inextricably intertwined.

Simply because it touches on public policy, that doesn’t mean it’s public. The DMV touches on most private policy. Does that make it private?

DpWhite

noted that the interstate economy belonged to everyone and regulated it in a way that gave everyone access equally,

No, the economy does not belong to everyone. It belongs to the people that own it.

[jshore]

Well, Senor Beef and The Ryan, you are welcome to go off and form your own nation of Libertaria where the laws (or lack of any laws) are more to your liking. Just don’t expect most of the rest of us to follow.

Hell, you are welcome to use your political influence to try to turn this country into Libertaria if you want, just don’t expect most of the rest of us to go along with it.

When your rights conflict with other people’s rights, that is one thing. Conflicting with other people’s interests is another entirely.

I guess a libertarian’s paraphrase of Humpty Dumpty would be “a right means exactly what I want it to mean, nothing more, nothing less.” (All others are just “interests”.)

[SenorBeef]

*Originally posted by Guinastasia *
**Also, look at it pragmatically-it’s bad for business.

Seriously, why do you want to discriminate? **

Who said I did?

I’m more concerned about usuprtion and invalidation of property rights.

[SenorBeef]

A quick clarification… I was unclear. I was making an argument from the point of examining the issue, rather than actually observing my own situation. I am not a business owner, and if I did, I wouldn’t want to descriminate against any potential customer base.

However, I still question the need to have the government forcefully remove property rights to remedy a social problem.

[SenorBeef]

*Originally posted by Jodi *
**SENOR BEEF –

So? Just because you own something doesn’t mean you have the unlimited right to use it however you like in every case. When your rights conflict with others’, then some balancing between the two must be struck.

**
I don’t believe that anyone has a right not to be discriminated against.

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.

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.

Hence I don’t think there’s a conflict of rights in this case.

**
Congress determined that the negative societal impact of discrimination (most specifically at that time, racial discrimination) outweighed the right of owners/operators of public accommodations to only serve whom they’d like.

**

And it’s a reasonable case, in a certain light. Basically, “the general racism of whites isn’t fading away too quickly, let’s have the government step in and force it” is what happened. I suppose, in some minds, this is perfectly justified - but, even if it may have had some positive outcomes, I see it as a dangerous usurption of property rights by the government.

The decision that your private business is a public thing is somewhat arbitrary. If I have a garage sale, do I have to sell to anyone? Is this different from a business just because it’s registered and pays taxes and such?

**
The fact that, say, white people, might not object to the discrimination of businesses they patronize against black people (and therefore would not boycott) does not change the negative societal impact of the discrimination.

**

That’s true, but is forcing them to do something, at the cost of the weakening of everyone’s property rights, and an inherent strengthening of government interference, the only way to fix this?

**

It *is[//i] a weakening of property rights. Because your right to serve whom you want does not outweigh the rights of others to be free from discrimination in businesses open to the public.

**

Covered that earlier. It’s logically impossible to derive a right from the labor or expense of others.

**
Property rights, while extremely important in the U.S., are not inviolate or paramount, and can and are impinged upon when reason exists to do so. **

If you have the mentality that rights can be redefined, limited, or violated for convenience’s sake.

[SenorBeef]

*Originally posted by The Ryan *
**
It’s kinda strange that you noticed that but not your thread title.
**

Brain fart. When I’m not paying attention, or tired, I tend to spell words I don’t type commonly in a phoenetic manner.

[GusNSpot]

*Originally posted by SenorBeef *
**However, I still question the need to have the government forcefully remove property rights to remedy a social problem. **

And your solution would be?

[The_Ryan]

*Originally posted by GusNSpot *
** And your solution would be? **

I don’t know if SenorBeef would agree with it, but I hav already presented a solution that does not creating a new basis for violating property rights.

[grendel72]

This is the type of argument that makes me fear for the SDMB.

Beef, the only right being taken away from property owners is the right to be an asshole- don’t be an asshole and you don’t even need to think about the law.

Ryan, this may be hard for you to accept but just because the word “Apartheid” wasn’t used doesn’t mean it wasn’t the practice in this country.

Seriously, I hear all of this talk (not just here, and not just in this thread) about our rights are being taken away. where exactly is this happening aside from in the imagination of Rush Limbaugh?

[msmith537]

*Originally posted by SenorBeef *
I take this as an instance of the government gettings it’s paws into something it shouldn’t be. If a business is, for whatever reason, descriminating against a group or individuals, and people object to this, they have the free choice to boycott that business.
**

The reason we have anti-descrimination laws is because enough people felt that it benefitted society enough to pressure the government to pass those laws. The government should “get its paws” into these things. That same government is going to have to provide the welfare, police and other services when large groups of certain minorities are permenantly locked in poverty because other groups who happen to own most of the capital refuse to hire them for anything but menial jobs.

You don’t have the right to do whatever you want with your business, just as you don’t have the right to do whatever you want with your property. If everyone did the right thing or even knew what the right thing was, we wouldn’t need laws.

[SenorBeef]

*Originally posted by msmith537 *
**

The reason we have anti-descrimination laws is because enough people felt that it benefitted society enough to pressure the government to pass those laws. The government should “get its paws” into these things.

**

The invalidation of rights [including property rights] at the whim of the masses is exactly what the Republican nature of our country is supposed to inhibit.

Whether or not the outcome was generally positive doesn’t necesarily invalidate that point.

**

That same government is going to have to provide the welfare, police and other services when large groups of certain minorities are permenantly locked in poverty because other groups who happen to own most of the capital refuse to hire them for anything but menial jobs.

**

This is a valid observation in a practical sense - if you operate at the assumption that the government owes any free services to anyone. (Welfare, etc.)

**
You don’t have the right to do whatever you want with your business, just as you don’t have the right to do whatever you want with your property.

**

… so long as you don’t infringe upon the rights of others, you mean?

Or are you simply not allowed to do what you want with your property? Why, then, can’t the government tell me that I can’t descriminate who I let into my home based on religion, race, sex, age, weight, height, or whatever?

**
If everyone did the right thing or even knew what the right thing was, we wouldn’t need laws. **

We’re assuming there’s an objective ‘right thing’ and that not using one’s power of discretion over the property is not it.

[lucwarm]

*Originally posted by SenorBeef *
**If I own a home, I can choose who can come in. If I want to descriminate against young people, old people, green people, purple people, or people with bad hair, that is my right, it’s my property.
**

Actually, I disagree with this. The police can enter your home against your will if they have a proper warrant. Under certain circumstances, private citizens can lawfully enter your home without your permission.

Granted, these are extreme examples, but the point is that, as other people have said, property rights are by no means absolute.

Perhaps a better way to ask the original question is as follows:

**
Why are people allowed to be so discriminatory with respect to their residences?

**

When the question is put this way, the answer seems pretty clear. Our culture (and our law-makers) recognize that ‘a man’s home is his castle.’ So our laws are very deferential to the whims of a home-owner.

Now, you seem to be arguing that the law should treat all kinds of private property the same. May I ask why you think so?

[El_Zagna]

What you have are two perfectly reasonable rights that conflict with one another. As you say, a business owner should have the right to serve, hire or accommodate anyone he so chooses. That seems reasonable in and of itself. On the other hand the Joe Public should have the right to patronize any store he wants and not be barred because of the whim of the owner. That’s reasonable, also. These two rights can’t exist together so one has to go.

The situation is different for the home. Obviously the homeowner has the right to keep anyone he wants off his property, but I can’t see any argument for the right for Joe Public to invite himself into anyone’s house. Thus there are no rights in conflict.

[grendel72]

Beef, the invalidation of rights by the majority is exactly what anti-discrimination laws exist to counteract.

Also, there is an objective “right thing” it’s called the golden rule. If you’ve somehow never heard of it let me summarise: “Don’t be an asshole, people don’t like assholes and will treat you badly if you are one.”

[Jodi]

SENOR BEEF –

I don’t believe that anyone has a right not to be discriminated against.

Well, that depends on what we mean by “right.” Certainly every U.S. citizen has a legislatively created right not be discriminated against on the basis of race, national origina, etc., in places of public accommodation, because Congress so provided in the Civil Rights Act of 1964.

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. That’s exactly what you’re doing. You’re saying: Innkeeper, you cannot not rent a hotel room to this person on the basis of race.

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.

The right does not “derive” from “the expense of another,” it derives from an Act of Congress. It conflicts with the right of another, when a person desiring not to be discriminated against bumps up against a person desiring to discriminate against his or her, through the exercise of a property right. Congress has provided that in such a case, the right of the individual not to be discriminated against trumps the other individual’s right to do what he/she wants with his/her property, andd the courts have agreed. (I should also point out that the Civil Rights Act of 1964 does not set forth any new affirmative right, but rather prohibits discriminatory actions on the part of those who might wish to discriminate. But the effect is largely the same.)

Hence I don’t think there’s a conflict of rights in this case.

Well, perhaps it would be better to consider it to be a conflict between the full exercise of a right (property right) and a limitation on the exercise of that right. But those two certainly conflict.

I suppose, in some minds, this is perfectly justified - but, even if it may have had some positive outcomes, I see it as a dangerous usurption of property rights by the government.

I’d construe it as a limitation, not a usurpation; it’s not as if the government has taken to itself the right to discriminate. But in either case – what danger do you see in it? And please put forward something other than a “slippery slope” argument.

The decision that your private business is a public thing is somewhat arbitrary. If I have a garage sale, do I have to sell to anyone? Is this different from a business just because it’s registered and pays taxes and such?

Actually, it’s not all that arbitrary; the list of what constitute “places of public accommodation” is right in the statute. It has been slightly expanded since through case law interpretation (for example, the Court in the PGA Tour v. Martin, 532 U.S. 661 (2001) stated that the statutory phrase “place of entertainment or exhibition” included golf courses). But if you’re curious whether a particular business is or is not a “place of public accommodation,” you can look it up.

That’s true, but is forcing them to do something, at the cost of the weakening of everyone’s property rights, and an inherent strengthening of government interference, the only way to fix this?

Well, yes. Can you think of another way to fix it?

It’s logically impossible to derive a right from the labor or expense of others.

Again, the right does not derive from “the labor or expense of others;” it impinges upon a different right possessed by them.

If you have the mentality that rights can be redefined, limited, or violated for convenience’s sake.

I find it interesting that you would dismiss the eradication of racial discrimination as something done “for convenience’s sake.”

When two rights (or a right and a prohibition) conflict, one must be “redefined,” or “limited” or, if you like, “violated.” That’s what happens when you try to carry your gun into an airport. That’s what happens when you attempt to disseminate obscenity under the flag of free speech. That’s what happens when the cops tap your phone. I can’t think of a right that U.S. citizens possess that is held without limitation – not religion, not speech, not personal liberty, and certainly not property.

You appear to be arguing that no infringement on property rights may ever be justified. It’s a popular libertarian argument, but not one I happen to agree with.

[Gadarene]

Wonderful post, Jodi. I’d come on to respond, but you said everything I would have.

[DPWhite]

The Ryan asserted that the economy doesn’t belong to everyone, but to those that own it. Really? Cite? The government at various levels have the right/power to regulate, tax and manipulate the economy. The power to allow access and exclude. No other entity does. This approximates possession and ownership for all practical purposes.