You’ve given me something to think about, and it’s an interesting rational basis for such regulation. I’ll have to think that over.
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Actually, that’s exactly what’s happening, in a literal sense. By virtue of the Commerce Clause of the Constitution, the government controls the roads, the trains, the airways. This is the governments’ property.
Your property rights stop at the front door. Your property rights do not extend to requiring the government to let you use the public roadways to promote discrimination. -
The diner owner is not a third party to this contract. He/she is availing him/herself of the public roadways in order to give value to his/her property. The diner owner is directing the food suppliers to use the public roadways to get the food to the diner, and is inducing customers to use the public roadways to get to the diner and spend their money.
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In any event, of course a contract specifying how a third party can act would stand up. Take an easement. You own the property between Mr. X’s house and the road. You allow Mr. X. to build a driveway across your property, but as part of the deal, you prohibit him from having trucks over X weight use the driveway. Mr. X cannot (a) invite his friend with the monster truck to his house (inducement), or (b) have a moving company roll up the driveway with their semi- (direction).
Sua
SENOR BEEF –
You’re mixing up your standards there. “Compelling state interest” and “rational basis” are different standards the government has to meet depending on the right being implicated. In the case of property rights, the standard is “rational basis,” not “compelling state interest.” The court held that a “rational basis” existed to believe that outlawing discrimination would actually result in less discrimination. Do you disagree?
It should be self-evident that when two rights (or a right and a prohibition) conflict, one right (or prohibition) must give way to the other. This does not mean that one right is had “at the expense of the other;” it means that if you want to go up and I want to go down and we must go together but we can’t go both ways, either we must go up or down. You have a right to free speech; I have a right to quiet enjoyment of my property. If you wish to picket my house because I am an abortion doctor, our rights will conflict. Would you then say that one right is had “at the expense of the other,” simply because they conflict?
Uh, no, it’s not. They self-evidently had the power, precisely because the Supreme Court agreed with them. That’s how we decide things, legally, in this country. To say they did not have the power to pass the 1964 Civil Rights Act is simply delusional. Congress, through the full and legal exercise of its legistative power, duly passes a law. The Supreme Court, through the full and legal exercise of its judicial power, determines the law is constitutional. Procedurally, it’s a textbook illustration of precisely how our government is supposed to work.
(A) I don’t believe expecting businesses that are open to the public actually to serve all members of the public constitutes a “broad invasion” of property rights. It’s got nothin’ on, say, governmental takings.
(B) The problem in question was not purely social but economic, as COLLOUNSBURY explained. Discrimination inhibits economic growth, and Congress, as our representatives, has a legitimate interest in safe-guarding the economy.
© Congress is not limited to only fixing problems it is “obligated” to fix. Shoot, it’s not even required to wait for an actual problem to arise; it can head them off, if it wants to. Good governance is not always reactive only; it is proactive as well.
Actually, it’s not a whole different debate, because your position assumes that we have a “right” to full, absolutely unfettered enjoyment of property, but we do not have a “right” to not be discriminated against. It is therefore crucial to your own argument that you explain how you decide that the former is a right, but the latter is not.
Follow me closely here: Every time two rights conflict, the ‘winning’ right is upheld at the ‘cost’ of the right that loses. You do not want to hear my speeches when you’re at home, but I have a right to free speech in the public area outside your house. If you win, and your right to quiet enjoyment triumphs, it will be at the “cost” of my right to free speech, and I will be “forced to do what I do not wish to do [be quiet] for your ‘right’ to be fulfilled.” Conversely, if I win, and my right to free speech triumphs, it will be at the “cost” of your property right to free enjoyment, and you will be “forced to do what you do not wish to do [endure my speeches] for my ‘right’ to be fulfilled.” The analysis is no different when we are talking about discrimination.
It’s logically different because one right (privilege, option, whatever) exists here in the real world and the other does not. Could Congress pass a law requiring each of us to build a house for a random stranger? Sure. And then that law woud be subject to constitutional challege and struck down.
Just because one legislative right (privilege, option, whatever) is upheld does not mean that every statute would be upheld. What is the negative impact on the economy or interstate commerce in expecting people to obtain their own housing?
You find that to be arbitrary? Recall that the purpose of anti-discrimination legislation is at bottom to fix economic (and, yes, societal) problems. Do you consider hair color discrimination to be a real problem in our society?
“Social change” begs the question; it is not the means to the end, but rather the end itself. “Education” is of some worth but hardly a solution to intrenched discrimination. If you don’t think it’s Congress’s job to fix problems negatively impacting all of society on an economic level, then whose problem do you think it is?
That does not mean the right derives from the labor. The “product” of the right is not the sandwich you hand me, but the freedom from discrimination. Furthermore, the whole reason to inhibit discrimination in places of “public accommodation” is that doing so does not rquired “unwanted labor” from you. You are in the business of renting hotel rooms or selling meals. Economically, you want (and in fact you solicit) more work, in the form of full rooms or full tables. You want to say that your labor expenditure is only “unwanted” if its done on behalf of a black man. That, however, does not follow from your assumed desire to maximize the profits from your open-to-the-pubic business. If you truly don’t want to “labor” to make meals, then don’t open a restuarant.
But as has been illustrated several times, your idea of a right does not take into account the self-evident fact that any time two rights conflict, one right must give way, and the losing person must “do something he doesn’t want to do” – i.e., give up his right.
Rights do not exist in a vacuum; they bang up against each other frequently, and when that happens, one or the other of them must give way.
Your position appears to be premised on these assumptions:
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Discrimination is a purely social problem, and not an economic one.
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The right to property is an inviolate right that cannot be abridged by the government.
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Congress cannot act proactively to solve pressing societal or economic problems if by doing so it acts in a way some citizens do not like.
I think all of these assumptions are fundamentally incorrect, though two is of course a matter of opinion.
Sua
Sua
I believe that, traditionally, the U.S. Supreme Court has taken a more expansive approach to interstate commerce than you outline, though the Court does seem to be scaling this back just a bit. I believe the Court has taken that position that the commerce clause allows the U.S. Congress to regulate things that may affect interstate commerce regardless of whether the activity actually involves interstate commerce. For example, the U.S. Congress can enforce the Endangered Species Act on private land even though the specific animal protected has never been, and will never be, in interstate commerce.
Truth Seeker: Check my post earlier in the thread. What you say isn’t at all clear anymore after Lopez and Morrison.
The Ryan:
How in the world do those two not contradict each other? Anyway, the latter isn’t a fair statement of my position–I simply aver (apparently because I’m a fascist, according to you) that “private property exists only on the sufferance of the government.” It’s a true fact, bub, and I’ve given support for it.
SenorBeef: 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.
Others here have done a much better job than I could of pointing out the flaws in that position from a legal and constitutional standpoint. I’d just add that if you believe it’s not the government’s business to restrict property rights for the sake of producing social change, somebody has to put on their thinking cap and come up with a workable alternative solution.
And private property owners had several decades between the Reconstruction and Civil Rights eras, when AFAIK the judiciary was pretty “hands-off” towards racial segregation laws on freedom-of-association grounds, to find an alternative solution to discrimination without the government’s getting involved with it. They didn’t; in fact, when anti-discrimination laws finally did get instituted, many communities and businesses had to be dragged kicking and screaming to nondiscriminatory practices (and some haven’t quite got there yet).
In other words, the government is actually a fairly conservative and sluggish instrument for initiating social change, responding to the demands of change advocates usually only after many years of protests and maybe a hideous highly-publicized murder or two. So perhaps you could forestall further government intrusion by busting your butt for extra-legal eradication of discrimination before any more anti-discrimination laws get passed. After all, if the problem mostly goes away by itself, the political pressure for legislative remedies essentially evaporates.
So if I were you, I wouldn’t waste my time fretting over the invasion of property rights (especially since, as other posters have shown, you’re on pretty shaky judicial ground); I’d get out there and start urging social acceptance and equal treatment for homosexuals, say. That achieved, the raison d’etre of gay rights advocacy will be gone, and nobody will be bothering Congress or the courts to include sexual orientation as a new protected category. And you’ll have done your bit toward preserving the freedom of the Republic. 
So?
But no one’s asking to force the governent to allow the use of the roads. The governent has expressed absolutely no interest in denying the use of their roads. If the governent were to say “stop discriminating or you can’t use our roads”, you’d sorta have a case, but that never happened. Nor has any business owner signed a contract allowing the governent to tell them what to do. As I said, you can say that, metaphorically speaking, there is a contract, but literally speaking, the governent has not agreed to a contract. The business has not agreed to a contract. There is no contract. If you insist that there is one, I’d like to see a copy of it.
Simply because one is benefitting from a service, that hardly means they aren’t a third party. Government- one. Truckers- two. Diner- what? Two and half? There are three parties. The diner is the third. If I tell someone “hey, you should go see this barber” does the barber now have the right to tell me how to run my business?
I’m the first party, right? And Mr. X is the second, right? So prohibitions about what Mr. X can do aren’t involving a third party.
Three more points:
one: This sort of logic can be used to justify anything. You want to worship in a Catholic Church? Okay, but you’re going to have to use public roads to get there. And as we all know, once you use public roads, you lose all your rights :rolleyes:.
two: The reason the government has all these wonderful roads is because they have eminent domain, which they use to take the land that they want for the roads. So they take land away from people, and then say “if you want to use this land, you have to do what we say”?
three: You’re wrong. Suppose I were a member of a comune. A comune that, for some reason, has a thing about blacks. We grow our own food, and own a road that goes to the nearest town. People from that town come to our comune every once in a while and buy food from us. Except black people. We don’t like black people. Do you really think the government will say “Oh. Okay. You’re not using any public roads. Guess we’ll leave you alone now.”? Maybe the federal government will, but the state government won’t. Why? Because the use of public roads is not the basis for this!
Just because the government has the power to do something, that doesn’t mean it has the right to do so.
When I speak of “private property” in the abstract sense, I am talking about the right to hold private property, and that does not exist only on the sufferance of the government. And you have not provided evidence against that. And in case you are going to misinterpret that, when I say “the right to hold private property… does not exist only on the sufferance of the government” I mean that the fact that it is immoral to deprive people of their private property does cannot be changed by governent fiat. And I never said you were fascist. I just said that you and fascists share a belief.
The Ryan:
I’m sorry you find offensive the idea that an uncompromising “rights are innate and exist separate of human construct, period” stance might be seen as dogmatic. I have yet to see a definition of “dogma” that includes an implication of closed mindedness, however. Now that I know you understand the term in that manner, I’ll try to keep it in mind when addressing you in the future. I cannot, of course, make any promises, as I am in the habit of using the word according to its actual definition.
You did notice that those are not the standpoints which he is most concerned with, right?
… or we could realize that life is never going to be perfect.
And all this time, discrimination by the government was illegal. Did that stop it? No. People who go around lynching people aren’t going to care about some law making them have to serve black customers. Discrimination was not stopped by laws. It was stopped by that private action you are so dismissive of.
I find this arguent rather dishonest. “Oooh, look at how horrible it was for black people. It was really bad, wasn’t it? So don’t dare criticize these laws that have nothing to do with what black people had to go through.”
Exactly. By the time the laws are actually passed, they aren’t need any more.
So… “Give us what we deserve now, or we’ll take what we deserve, and more, later”?
Boy, aren’t you naive.
I think, for the most part, they have that. Many, if not most, companies now give spousal benefits to gay partners. So there won’t be pressure to require companies to do that, right? Right?
Gay advocacy is about more than equal rights. It’s about respect, too. And I don’t think that people should be legally required to give them respect.
It seemed to me that you were aware of its connotation. Your statement
implied that you found us unwilling to consider other points of view.
According to dictionary.com:
and http://dictionary.cambridge.org/define.asp?key=dogma*1+0 says:
As I said before, I believe that my interpretation is consistent with established connotations.
For the second time, what is your basis for asserting this? You keep slinging this sort of language around like it were some sort of cosmic given. Please explain the philosophical basis underlying your absolutist view of property rights.
Please explain to me the difference between a right and a privelege.
And also, if rights are “innate”, what these innate rights are.
The UN recognises execution to be trampling all over “innate human rights”. I mean - as far as their charter of human rights go, execution is right up there as a big ol’ no no. Doesn’t stop the US from performing them though. Waddyaknow? Seems that different people might actually have fundamental differences of opinion of what those innate rights are.
But how can that be so? If these rights are so… innate?
I’d say based on my morality that one “innate human right” is the right to not be discriminated against. In fact, I’d say that is a hell of a lot more innate than the right to own anything, let alone not allow others to use what you own.
How are you going to counter my definition of innate rights? Simply by declaring that non-discrimination is not one? “Yes it is”, “No it isn’t”?
That’s why these discussions ultimately have to come down to a lot more than some ideological argument about what is an innate right. They have to be resolved by looking at net effects on society of including/excluding such anti-discrimination laws and proceeding logically along the path of least harm/greatest benefit. History shows us that we get a much higher net utility from including anti-discrimination laws than not. Therefore we should keep them.
“Rights” are such a red herring.
pan
Well, I don’t think that public utilities are publicly funded. I’ve never heard of United Water of New Jersey getting a monthly check from the state.
But yes, public utilities are subsidized in many ways. For example, they are frequently given the power of eminent domain to set up water/electric/gas lines. Many of them are given monopolies.
However, you should keep in mind that, as Sua observed, all businesses receive government subsidies to some extent. Most importantly, the government maintains the infrastructure that let suppliers and customers get to and from the business. The government also defends the land, sea and air around the business. Note that the business receives these things even if it is losing money and therefore paying little in taxes.
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Well, if you are saying that the property rights of individual business owners should be given more weight than the principal of racial equality, I can’t really argue with you. It’s a question of your own values.
I imagine that in the absence of civil rights laws, there would still be a decent number of hotels / housing complexes that wouldn’t rent to black people; businesses that wouldn’t hire black employees, etc. But if that’s the kind of world you want to live in, you’re entitled to your preferences.
Yes, but this argument can be used to justify government price fixing, partial ownership of businesses, etc. And that’s why I couldn’t simply accept and agree with it.
**
Sorry, I wasn’t thinking of them in their strict legal sense. “Compelling state interest” is closer to what I meant.
Anyway, I believe that simply forcing someone not to discriminate on race doesn’t fundamentally change their nature to discriminate. They’ll simply find a practical way around it and discriminate against them for another reason. (I guess it’s time for the government to remove all power of discrimination - I mean, why shouldn’t that kid with 400 tattoos on his body get to be a waiter at a fancy restaurant?)
**
Ok.
One more time.
I don’t believe there’s a right not to be discriminated against. Because it forces other people to do things, it cannot be a right. One person cannot have a right to force another person to do something they do not wish to do.
Anti-discrimination laws are government mandated limitations on property rights, not a positive affirmation of any right to force people to do what they don’t want to do.
**
I understand. And you’re right. I’m just saying that Congress could, hypothetically, write a law that makes us all put gags in our mouths 24/7. If the Supreme Court decided to uphold this, for whatever reason, it’s technically legal.
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True, but we can’t say ‘this invasion is alright because there are bigger ones’
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This argument I buy a whole lot more than ‘people have a right not to be discriminated against’.
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Trying to fix social problem that it has no direct obligation to do, and cannot do very effectively (that is, change the actual feelings behind the discrimination, people will find ways around laws) is not something I’m so confident I want Congress to do. They can, of course - and they can legislate May 14 as “Punch yourself in the eye federal holiday!”, I just question the wisdom.
**
I did. The right to ‘discrimination’ cannot be valid because no one has a right to force another person to do something.
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I understand. And I’ve very unambiguously argued that there is no right to be free from discrimination.
Out of curiosity, do people have the right not to be discriminated against because they’re inefficient, bad workers? Or is it just race, age, disability, etc.?
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This is the almost ubiquitous atttitude among people today that troubles me. If people don’t make any distinction between rights, privileges, options, and whatever, then we almost have no rights.
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Most likely. It’s still up to the determination of the judges, and, hey, in another 100 years, it might be fashionable to uphold that sort of law. But that’s the way the system works.
**
Sigh.
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I was using the analogy simply as a way of saying ‘a right to force people to do things can’t exist’, rather than a completely analagous situation to this.
**
Is height discrimination a real menace to society? I believe someone mentioned earlier that height was a ground you could not discriminate on - if I’m wrong, my bad.
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They didn’t end discrimination or the will to discrimination in any real sense, they just made people be less obvious about it.
The economic interesting angle has some merit, and it has made me a bit more of a fence sitter on this issue.
**
Someone mentioned something about not renting to college students. Perfectly legal, but under this logic, you’re lessening your profitability. Does congress need to write a law taking away the power of discrimination entirely? (And it’s irritating that ‘discrimination’ is now synonymous with racial discrimination - now you almost have to find a different word to talk about ‘legitimate’ discrimination like not hiring a bunch of coke heads to be your security guard.)
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Simply because I don’t believe anyone has the right to force anyone to do anything, which includes a right not to be discriminated against.
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If we had 2 legitimate rights in conflict. We don’t. We have a right and government’s economic interest conflicting, hence the right gets restricted… not because of 2 rights conflicting.
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I admit that it can have economic consequences.
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Actually, I said that wasn’t my premise quite a few posts ago.
[/B}
I didn’t say they can’t, but federal power is a very menacing thing. It can be used in a very broad manner. We should always be careful of, and question, any laws which put restrictions on any rights. And that’s what I’m doing.
Aside from analyzing Congressional motive, I haven’t said anything specific about racial equality. I’m not advocating property rights because I wish to discriminate against blacks. The PC crowd has managed to make the word discrimination synonymous with racial discrimination, unfortunately.
I don’t see this as a racial equality issue at all - I see this as a property rights issue. I don’t care if people are discriminating against white people, black people, blue people, or people with 3 breasts. It’s about property rights.
You seem to be trying to take some moral high ground by saying “Not being racist is more important than property rights”, suggesting I’m trying to be racist.
I’m not going to defend my entire moral system. That’s a completely different subject, and not a simple one. I am not presenting my morality as a given, I am presenting the fact that I believe in my morality as a given.
Can you explain why discrimination is immoral?
SENOR BEEF –
But that is not the standard; “rational basis” is. So the first thing to realize as you ask “why can’t I discriminate?” is that most people – more specifically, the people making determining the constitutionality of the law (the Supreme Court) – do not value property rights as highly as you apparently do. They have decided those rights may be infringed by the government so long as it can show a “rational basis” for doing so; it need not show a “compelling state interest.” It may be your opinion that property rights should be valued more highly, but in fact they generally are not.
This makes no sense to me. Are you saying that a person who wants to discriminate against black people will find a way to do so, by coming up with another reason not to serve them? Because that would be what the law calls a “pretext.” Pretextual reasons for discrimination are not legal, either. Or are you saying that if a person wants to discriminate against black people and is prevented from doing so, they will then start discriminating against, say, fat people instead? That seems to me to be a totally unsupportable assertion – if it is in fact what you are asserting.
Your definition of “right” may include “anything that forces other people to do something cannot be a right,” but that is not a the definition generally used. I have posted multiple examples of how the exercise of a right by one person can “force” another to do something he or she does not want to do. At this point, it appears you are simply ignoring those examples and re-parroting your position. So kindly do not post this again. It does not become more correct for being posted forty times.
So what? The right is to be free from discrimination. The effect is to prevent (“force”) people from doing something they want to do – i.e., discriminate. You appear to be arguing that a positive prohibition (“Person A, you cannot discriminate against Person B”) does not effectively grant a right (“Person B, you can be free from discrimination”). Surely you can see that it does. If I prohibit everyone (anyone) in society from tripping you, you effectively have the right to be free from being tripped. They are two sides of the same coin, and the coin does not change based on the side you are looking at.
Hypothetically, monkeys could fly out my butt. Look, you have asked “why can’t I discriminate?” I am trying to answer that question. You then want to go beyond that answer, to hypothetical abuses of power having no grounding in reality. But I’m not following you there; I’m not interested in that.
No, we say the invasion is alright because a rational basis exists for making it – i.e., that telling people they cannot discriminate obviously results in less (not no, but less) discrimination). Do you or do you not see that?
Fine. Then go with that argument. It is, after all the one the Court embraced in Heart of Atlanta. But as I said, I don’t see what difference the language used makes: If no one may discriminate against you in places of public accommodation (prohibition), then you effectively (meaning, by its effect) have a right not to be discriminated against in places of public accommodation.
I find it interesting that you believe that outlawing discriminatory practices is not an effective way to battle discrimination. To the contrary, it obviously is: "Stop doing this or you will have to pay a huge fine. Stop doing this or we will shut your business down. “Stop doing this or you will go to jail.” – all very effective. Now you appear to be arguing that Congress must “change the actual feelings behind the discrimination” – wrong. Congress doesn’t care about motivation. Neither do the courts. They care about what you do, not why you do it. And if you are discriminating, they want you to knock it off, regardless of why you do it. Moreoever, it is no easy thing to “find ways around laws” outlawing discrimination – it is, in fact, very hard to do, and much easier to just stop discriminating.
Congress very clearly has the right to tell people to do things, or not to do things. It does it all the time. And it is Congress that is doing the forcing – not the person holding the right. Your opinion that the exercise of a right cannot include forcing someone else to do something (or refrain from something) is quite simply contrary to the definition of “right” and the way it is practically interpreted. Again, you may define the right however you like, but no one else has to agree.
Heck, why don’t you argue that the sky is green? Argue that “up” is “down.” I mean, since you cling so firmly to your opinions, without any basis except more of your own opinions, and since you appear to not feel yourself constrained by actual reality, it seems to me you could make a lot of arguments that might be more fun than this one. And equally defensible.
That would be the “etc.” one. There is an obvious logic to discriminating against inefficient, bad workers, who are themselves a drain on the economy. There is no logic to discrimination on the basis of race, religion, national origin, etc.
I have no idea what this means, because I have no idea what you mean by “rights.” It appears that “rights” in your world devolve down to your opinion – we have very strong property rights because you feel property rights should be very strong, but we do not have a right not to be discriminated against, because you don’t think we should, and because you personally define “right” in a way that forecloses this particular right – nevermind that if you used your definition (“no force”) consistently, we wouldn’t have any rights at all.
Yes. That’s exactly how the system works. Because regardless of whether “rights” are inherent or not, the very clearly are not immutable. The concept of “rights” and the application of them has changed dramatically in the last 150 years, and could easily change dramatically in the next 100 years. The interpretation and breadth of our rights are not set in stone.
Then it’s a bad analogy – just because the right would not exist under situation A (forcing people to build houses) does not mean the right cannot exist under situation B (forcing people to refrain from discrimination). It can, and it does.
Your bad.
I disagree. If I am a black person walking into a hotel in Atlanta, I will be rented a room without regard to my race – because that’s what the law demands. It is not a matter of being “less obvious” about it; it’s a matter of stopping behavior that before was allowed and now is not. Moreoever, while it is true that the law cannot (and does not) stop discrimination in every case, it makes it a heck of a lot harder to do in public places. Even if the discrimination is driven under ground – made “less obvious” – that is itself a huge improvement over overt, openly-practiced discrimination. You appear to be arguing that if the problem cannot be solved completely, we should not attemp to solve it at all. I don’t think that follows.
I don’t know. Can you show that failing to rent to college students creates a significant negative impact on the economy of the country as a whole?
This is circular reasoning. You say that freedom from discrimination is not a right because it employs force, and then you say that freedom from discrimination cannot employ force because it isn’t a right. This devolves to you deciding what is or is not a “legitimate” right. If the right is (in your opinion) legitimate, then the employment of force in the context of a coflict of rights is okay. But if the right is (in your opinion) not legitimate, then the employment of force is not okay. I respectfully submit that the legitimacy of rights (or prohibitions) is not up to you.
Well, different people are menaced by different things. But I don’t see what you’re doing is “questioning a law that puts restrictions or rights.” What I see you doing is redefining the entire concept of rights under your own personal (largely indefensible) definitions, and then declaring that being free from discrimination does not right to the level of a right. Apparently just because you say so. This takes the inquiry away from questioning the law as it exists in the real world and makes it a hypothetical – if we accept SENORBEEF’s definition of rights, and if we allow him to declare that this particular one is not a right, then is the law still okay? I confess I can’t really care.