The Right To Discriminate

[shagdrum]

The Right To Discriminate
Wednesday, June 02, 2010
by Walter E. Williams

Rand Paul of Kentucky, U.S. Senate hopeful, is caught up in a swirl of controversy in response to his comments on MSNBC's "Rachel Maddow Show." He has been dishonestly accused of saying he thinks that private businesses have a right to discriminate against black people. Here's a partial transcript of the pertinent question in the interview:

Maddow: "Do you think that a private business has a right to say, 'We don't serve black people'?" To which Paul answered, "I'm not, I'm not, I'm not in ... yeah ... I'm not in favor of any discrimination of any form."

The "yeah" was spun in the media as "yes" to the question whether private businesses had a right to refuse service to black people. Paul had told Maddow that while he supported the 1964 Civil Rights Act in general, he thought that provisions banning private discrimination might have gone too far.

Democrats launched an attack on Paul accusing him of being a racist. Republicans criticized and in the words of Republican National Committee Chairman Michael Steele, Paul's "philosophy is misplaced in these times." He added that Paul has a libertarian perspective and "(has) a very, very strong view about the limitation of government intrusion into the private sector."

Should people have the right to discriminate by race, sex, religion and other attributes? In a free society, I say yes. Let's look at it. When I was selecting a marriage partner, I systematically discriminated against white women, Asian women and women of other ethnicities that I found less preferable. The Nation of Islam discriminates against white members. The Aryan Brotherhood discriminates against having black members. The Ku Klux Klan discriminates against having Catholic and Jewish members. The NFL discriminates against hiring female quarterbacks. The NAACP National Board of Directors, at least according to the photo on their Web page, has no white members.

You say, Williams, that's different. It's not like public transportation, restaurants and hotel service in which Title II of the 1964 Civil Rights Act "prohibits discrimination because of race, color, religion, or national origin in certain places of public accommodation, such as hotels, restaurants, and places of entertainment." While there are many places that serve the public, it doesn't change the fact that they are privately owned, and who is admitted, under what conditions, should be up to the owner.

If places of public accommodation were free to racially discriminate, how much racial discrimination would there be? In answering that question, we should acknowledge that just because a person is free to do something, it doesn't follow that he will find it in his interest to do so. An interesting example is found in an article by Dr. Jennifer Roback titled "The Political Economy of Segregation: The Case of Segregated Streetcars," in Journal of Economic History (1986). During the late 1800s, private streetcar companies in Augusta, Houston, Jacksonville, Mobile, Montgomery and Memphis were not segregated, but by the early 1900s, they were. Why? City ordinances forced them to segregate black and white passengers. Numerous Jim Crow laws ruled the day throughout the South mandating segregation in public accommodations.

When one sees a law on the books, he should suspect that the law is there because not everyone would voluntarily comply with the law's specifications. Extra-legal measures, that included violence, backed up Jim Crow laws. When white solidarity is confronted by the specter of higher profits by serving blacks, it's likely that profits will win. Thus, Title II of the 1964 Civil Rights represented government countering government-backed Jim Crow laws.

One does not have to be a racist to recognize that the federal government has no constitutional authority to prohibit racial or any other kind of discrimination by private parties. Moreover, the true test of one's commitment to freedom of association doesn't come when he permits people to associate in ways he deems appropriate. It comes when he permits people to voluntarily associate in ways he deems offensive.

 

[FIND]

One does not have to be a racist to recognize that the federal government has no constitutional authority to prohibit racial or any other kind of discrimination by private parties.

I know this is not your article. But, if you agree to this, as it pertains to businesses operating as public places, then why?

Once again, I would like to reiterate that discriminatory practices in whom you associate with on a personal level is different from using discriminatory practices on a professional level, when discriminating on the basis of illegitimate criteria. I say this primarily because the relationship between people on a personal level and professional level are vastly different, therefore appearance and factors like that are far more important in an interpersonal relationship on a non-professional level. But I digress....

I just wish to know why you would believe the government would not have the constitutional authority to prohibit racial discrimination in places of business. Bear in mind, no one is telling you that you have to like the opposite race, or that you cannot let your feelings be known. All they are saying is that you have to provide equal services when you become a public entity.

 

[foxpaws]

So, shag do you agree that private business should be allowed to discriminate?

 

[cammerfe]

One more try!!!

KS

 

[Calabrio]

I know this is not your article. But, if you agree to this, as it pertains to businesses operating as public places, then why?

You say "public places," but what does that mean?
A public place should mean something that is owned by the public- ie. government. A PRIVATE business may serve the general population, but it is still a PRIVATE business.

Saying that it is a "public" business because it sells or services the customers from the general population, basically means that there is no private property.

I say this primarily because the relationship between people on a personal level and professional level are vastly different, therefore appearance and factors like that are far more important in an interpersonal relationship on a non-professional level. But I digress....

You're asking for clarification, but you've just made a huge statement there.
Why is that relationship different? Whether the relationships are important, or even ethical, why do you justify the loss of private property rights and the rights of free association as enforced by the government because of it?

Things that are legal don't have to be good.
And things that are good aren't always legal.

I just wish to know why you would believe the government would not have the constitutional authority to prohibit racial discrimination in places of business.

Again, this has been stated repeatedly.
On constitutional grounds, where do you think the government gets the constitutional authority to regulate such behavior.

In case you don't remember, they've defended such intervention using the Commerce Clause. Do you think that's a valid reason? Is that how you'd defend it?
I'd argue that the commerce clause has been bastardized and misapplied by the activist judges of the 20th century who had contempt for the constitution and distorted the clause in their effort to justify the grossly unconstitutional intervention of FDR and the federal government in our lives.

All they are saying is that you have to provide equal services when you become a public entity.

Being a privately owned business doesn't make you a "public" entity. PUBLIC entities, government functions and services, should not discriminate on the basis of race or ethnicity, I think we all agree on that point.

But if I only want to sell widgets to North Korean midgets, then I should be allowed to. I own the store, I own the inventory, I own my labor. It's not a good business model, it's probably not even sustainable, but that's my problem.

 

[lincolnx2]

But if I only want to sell widgets to North Korean midgets, then I should be allowed to. I own the store, I own the inventory, I own my labor. It's not a good business model, it's probably not even sustainable, but that's my problem.

Funniest example I ever heard.:bowrofl:

 

[FIND]

You say "public places," but what does that mean?
A public place should mean something that is owned by the public- ie. government. A PRIVATE business may serve the general population, but it is still a PRIVATE business.

That is operating as a public place.

Saying that it is a "public" business because it sells or services the customers from the general population, basically means that there is no private property.

That is just silly. You can have private property in public. If you own your home, your property line extends to the sidewalk and frontage. You cannot disallow people from using your sidewalk. Local government can regulate how you care for the publicly visible parts of your property. Local government can decide to put a fire hydrant on your frontage without your consent.

You're asking for clarification, but you've just made a huge statement there.
Why is that relationship different? Whether the relationships are important, or even ethical, why do you justify the loss of private property rights and the rights of free association as enforced by the government because of it?

Other than the fact that I explained exactly why the relationship is different in my post? Can you tell me how you can imagine the relationships are the same? The constitution was never written to make private property sovereign. The only place the constitution recognizes an absolute right to privacy is in your own home.

Things that are legal don't have to be good.
And things that are good aren't always legal.

and?

Again, this has been stated repeatedly.
On constitutional grounds, where do you think the government gets the constitutional authority to regulate such behavior.

Where has this been stated? All you are doing is answering my question with a question. The government has the authority to make laws to provide for the common welfare of its citizens. Honestly though, for all my searching, all I have seen is people stating it is unconstitutional, then getting into a pissing match over the Commerce Clause.

In case you don't remember, they've defended such intervention using the Commerce Clause. Do you think that's a valid reason? Is that how you'd defend it?
I'd argue that the commerce clause has been bastardized and misapplied by the activist judges of the 20th century who had contempt for the constitution and distorted the clause in their effort to justify the grossly unconstitutional intervention of FDR and the federal government in our lives.

ok.... That is your opinion and you are entitled to it. I don't feel like getting into a discussion about the commerce clause, since everyone has their own opinion of it. Let's just stick to the BASICS of the constitution and make things simple.

Being a privately owned business doesn't make you a "public" entity. PUBLIC entities, government functions and services, should not discriminate on the basis of race or ethnicity, I think we all agree on that point.

If you are operating as a public entity, then you are a public entity. Would you like it if someone opened a sex shop and a topless bar next to your children's school? For the sake of argument, let's just say they advertise themselves in the most conspicuous manner possible.

But if I only want to sell widgets to North Korean midgets, then I should be allowed to. I own the store, I own the inventory, I own my labor. It's not a good business model, it's probably not even sustainable, but that's my problem.

But, let's say you are the only store in town. Just put yourself somewhere like South Dakota or some other rural area, where people would have to travel a great distance. Where do the South Korean midgets get their widgets? Now they have to drive 50 miles each way to get their widgets because the town you live in is only large enough to sustain one midget widget store. Those South Korean midgets are harmed directly by your actions and discrimination.

 

[Calabrio]

That is operating as a public place.

No,it's operating as a private business.
The tax collector, police and fire departments are operating in public places.

That is just silly. You can have private property in public. If you own your home, your property line extends to the sidewalk and frontage. You cannot disallow people from using your sidewalk.

You don't own the sidewalk, that's public property.
However, you may own the house,and you can decide who enters and for what reason people are selected.

Local government can regulate how you care for the publicly visible parts of your property. Local government can decide to put a fire hydrant on your frontage without your consent.

You don't own the frontage, though you might maintain it and use it.
But they can't put a fire hydrant in your living room-

let me correct, they shouldn't be allowed to put that hydrant in your living room, but noting the vast abuse of property rights in recent years, I'm sure you can find a judge that would let the government do so.

Additional point- you're also making a common mistake confusing LOCAL government and their power with FEDERAL government and it's authority. They are very different.

Other than the fact that I explained exactly why the relationship is different in my post?

No you didn't, you "digressed."
And you're making a lot of claims based upon the fact you're claiming it. And you then support the claim based upon the fact you're repeated your claim.

The only place the constitution recognizes an absolute right to privacy is in your own home.

If you want to make this argument, can you first tell me where an "absolute right to privacy" is mentioned.
But more importantly, are you familiar with the constitutional concepts of private property and free association?

Where has this been stated?

There must be three threads on this same subject currently posted here right now. The federal government doesn't have the constitutional authority to violate my private property rights, my right to free speech, and my right to free association. They engage in such activities, but it's not justifiable.

The government has the authority to make laws to provide for the common welfare of its citizens.

Really?
Can you tell me where the "common welfare" appears in the constitution?

The term "general welfare" appears in the preamble, but that doesn't mean that the federal government, with it's LIMITED power, is expected to be involved in the very specific affairs of our personal lives. And that statement in the pre-amble doesn't give it authorization to disregard the rest of the constitution in it's pursuit of utopia.

Honestly though, for all my searching, all I have seen is people stating it is unconstitutional, then getting into a pissing match over the Commerce Clause.

When the federal government acts, especially in a way that infringes on the rights of individuals, when challenged, it has to explain where it gets the authority to do so.

The Commerce Clause was used to justify it and defend it's constitutionality. Note, the legality of the action wasn't defined because of the "general welfare," but the misuse and misinterpretation of the commerce clause. So, it's not a pissing match, it's the weak, artificially supported defenders of such legislation have built their entire argument on.

If you can't understand or justify how the commerce clause applies to this, you basically need to acknowledge that the laws are unconstitutional:
"To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes".

It's not a pissing match or some unrelated, trivial side issue.
And the commerce clause has been abused for the past century to justify nearly any federal involvement or constitutional violation regarding private affairs.

Let's just stick to the BASICS of the constitution and make things simple.

That is one of the basics of the constitution.

If you are operating as a public entity, then you are a public entity. Would you like it if someone opened a sex shop and a topless bar next to your children's school? For the sake of argument, let's just say they advertise themselves in the most conspicuous manner possible.

You're not operating as a public entity, you're simply operating as a private business that may or may not serve the general population. You own the business. It is private property. You can pick who you chose to serve, be it an ugly decision or a stupid business decision.

I keep making this decision because the language being used is bad. That's not your fault, that's how the argument has been framed for decades. But a private business that does business in the open isn't a "public" business. It's a private business that may do business with the public.

You might also notice that this term "public business" is also used to include "private clubs." There's nothing public about a private enterprise located on private property.

You're next point- local towns have zoning laws.
Federal power has different authority and limitations than a local government does. There's nothing necessarily wrong or unconstitutional about zoning laws in a town. So this example has nothing to do with the issue at hand here.

But, let's say you are the only store in town. Just put yourself somewhere like South Dakota or some other rural area, where people would have to travel a great distance. Where do the South Korean midgets get their widgets? Now they have to drive 50 miles each way to get their widgets because the town you live in is only large enough to sustain one midget widget store. Those South Korean midgets are harmed directly by your actions and discrimination.

You're now making an emotional appeal.
And what you're doing is arguing that we should violate the constitutional rights of the "widget store" owner for the convenience of the North Korean midget.

And this North Korean minority isn't harmed by the actions of the discriminatory widget store. No more than if the widget owner decides that he's not going to deal with the regulation and decides to simply go out of business.

Regarding harm, there are color blind laws that protect people from actual harm or violations of HIS liberties.

But most importantly, the inconvenience to one group doesn't justify the abandonment and disregard of the constitution for everyone. You simply can't have that, because if the constitution can be ignored for any reason, then it really has no authority in any realm.

 

[shagdrum]

There is certainly a difference between personal use of private property and commercial use of private property. However, that distinction is nowhere to be found in the Constitution or in the philosophy the Constitution stems from (outside of the very specific idea of interstate commerce). So the distinction is not really relevant to this issue. The federal government has no more right to tell you what to do with your lawn mowing business then it does to tell you what to do with your car or your house.

As this article aptly pointed out, if government (at whatever level) was not involved in the area of institutionalizing discrimination, the Civil Rights Act would never have been necessary. The Civil Rights Act goes far enough (and is Constitutionally justified in doing so) in preventing government at any level from mandating discriminatory practices. Anything beyond that is unconstitutional and unrealistic; a Utopian fallacy forced upon society in an inappropriate attempt to dictate the morals of society (as opposed to simply reflecting the morals of society).

Government dictating social standards, morals, etc. (as opposed to reflecting them) is one of the distinctions between a free society and a tyrannical society.

 

[shagdrum]

So, shag do you agree that private business should be allowed to discriminate?

Why do you habitually aim to lie, misrepresent and mislead? Why do you inherently attempt to deceive?

 

[PetesSweets86]

Why do you habitually aim to lie, misrepresent and mislead? Why do you inherently attempt to deceive?

that doesn't answer her question when you ask a question in return...it's a simple yes or no....

 

[shagdrum]

that doesn't answer her question when you ask a question in return...it's a simple yes or no....

As usual, you ignore the entirety of what is going on. Her question is simply an disingenuous attempt to entrap me. If there were a possibility that she might be discussing things in good faith, I might consider answering it, but she has NEVER discussed ANYTHING honestly and in good faith in the politics section of this forum. In private messages with me she has also been less then honest on anything even remotely political (which is why I have noting to do with her anymore). To expect me to treat her question as an honest, genuine attempt to discuss things is to impose an absurd standard that ignores her past.

Given her past on this forum it would be foolish for anyone to treat anything she says on anything even remotely political as honest or genuine in any way.

 

[foxpaws]

You're next point- local towns have zoning laws.
Federal power has different authority and limitations than a local government does. There's nothing necessarily wrong or unconstitutional about zoning laws in a town. So this example has nothing to do with the issue at hand here.

Actually Cal - you are throwing out the best comparison. Local government is allowed to dictate how you use your land - and the Feds are fine with allowing the local government to walk all over your personal property rights.

Every libertarian I know is very much against zoning laws and imminent domain. They claim that the constitution protects their personal property rights - and all zoning laws infringe on that right - just as Title II also infringes on the same right.

So, why would you accept this on a local level? It is just as much an 'affront' to the 'pursuit of happiness' as the federal law is. At their core, all zoning laws are unconstitutional.

But most importantly, the inconvenience to one group doesn't justify the abandonment and disregard of the constitution for everyone. You simply can't have that, because if the constitution can be ignored for any reason, then it really has no authority in any realm.

But, it isn't just inconvenience. If you have to travel 20 miles to find a restroom that isn't 'white only' then you are also being treated as a second class citizen, and you are required to expend more money and more energy to do what whites can do. This eventually forces you to remain in communities that have facilities/stores/restaurants that you can use. This is a type of segregation. This is wrong.

 

[foxpaws]

As usual, you ignore the entirety of what is going on. Her question is simply an disingenuous attempt to entrap me. If there were a possibility that she might be discussing things in good faith, I might consider answering it, but she has NEVER discussed ANYTHING honestly and in good faith in the politics section of this forum. In private messages with me she has also been less then honest on anything even remotely political (which is why I have noting to do with her anymore). To expect me to treat her question as an honest, genuine attempt to discuss things is to impose an absurd standard that ignores her past.

Given her past on this forum it would be foolish for anyone to treat anything she says on anything even remotely political as honest or genuine in any way.

So, shag hides under a plethora of words, that in the end, mean nothing more than he can't state where he stands on this issue, for who knows what reason. I have been discussing this issue honestly and in good faith. Most people know exactly how I stand on most every issue. However shag, here is a glaring example of how often you 'run around' without actually stating how you feel about an issue. Often you don't actually make a stand, you 'infer' or you skate around the issue, so you can't be tied down when the chips are one the table. People pretty much know where my chips lie...

So, rather than take the avoidance route again Shag - let's get really specific...
So, shag do you agree that private business should be allowed to discriminate, should Title II be repealed?

 

[shagdrum]

At its core, all zoning laws are unconstitutional.

Only if you don't understand the constitution.

As usual, you ignore the whole idea of Federalism in your "analysis" of the Constitution; an idea that is one of the cornerstones of the Constitution. Therefore, any "analysis" you provide is wrong because it is premised on a distortion of the Constitution.

However, injecting a false premise through an implied assumption like that is very subtle. Nice try.

 

[Calabrio]

So, why would you accept this on a local level?

If you want to have a discussion regarding local zoning ordinances, feel free to start another thread and find some people interested in talking with you about it. But that's not what this discussion is about and there's no reason to radically change the subject.

 

[FIND]

No,it's operating as.......

As you said, you're making a lot of claims based upon the fact you're claiming it. And you then support the claim based upon the fact you're repeated your claim.

If you don't want to take the time to actually respond to what I say, then why bother responding? Especially if the only thing you are saying is that your opinion is that I am wrong. By the way, I do understand the commerce clause, I just felt like leaving it out because I don't want to bother with a discussion on that matter. Your statement is that certain things are unconstitutional. So. Tell me why. Tell me exactly where in the constitution it prohibits this. Tell me where the constitution restricts the federal government from making laws to protect the welfare of its citizenry in this respect.

BTW, privacy is never mentioned in the constitution. It is implied.

 

[shagdrum]

Your statement is that certain things are unconstitutional. So. Tell me why. Tell me exactly where in the constitution it prohibits this. Tell me where the constitution restricts the federal government from making laws to protect the welfare of its citizenry in this respect.

The Constitution doesn't, in any way, grant broad swaths of authority and only limit the government in certain areas. In fact, it does the exact opposite because those who crafted and who ultimately ratified that the Constitution unanimously rejected that notion and worked furiously to insure that the government was strongly limited in it's scope through an extensive system of checks and balances. Federalism, dual sovereignty, separation of powers...all were aimed at insuring that the Federal government relegated itself only to a few specific areas; especially when it came to domestic concerns.

The burden of proof is NEVER on showing that the Constitution specifically and directly prohibits some action of the legislature. It is on showing that a law is, in fact, constitutional. Basically any law is effectively assumed to be unconstitutional unless and until and adequate constitutional justification is given. That is what section "C" of Title II of the 1964 CRA is aimed at doing, and that is why it is necessary to do so. The burden of proof is on them to justify the law. They used the concept of the interstate commerce clause to justify it (which by 1964 had become so broadly distorted as to be a legal bludgeon to justify almost any government action). However, an accurate understanding of that clause as it was originally written and intended leaves no uncertainty that the parts of the 1964 CRA in question here are not justified under that clause.

Are you unclear on how the interstate commerce clause is viewed to justify the law and why that is justification is ultimately specious?

 

[Calabrio]

As you said, you're making a lot of claims based upon the fact you're claiming it. And you then support the claim based upon the fact you're repeated your claim.

What "claim" am I making that is unsupported or inaccurate?

By the way, I do understand the commerce clause, I just felt like leaving it out because I don't want to bother with a discussion on that matter.

How do you leave that out when the entire legal justification is based solely on the commerce clause?

Your statement is that certain things are unconstitutional. So. Tell me why.

I have, but I won't presume you know what I'm talking about anymore, so I'll spell it out for you.

It violates the principles of private property outlined in the 5th amendment: [No person] be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The right to free association, associated with the freedom of assembly as outlined in the 1st amendment and defended in the case NAACP vs. Alabama.

And the legal justification of the law comes from bastardizing the commerce clause, something that has created a dangerous legal precedent that gives the federal government the power to regulate vast amounts of private and business activities that it should have no right to interfere in.

Look at how the commerce clause has been abused over the past 70 years.

Tell me exactly where in the constitution it prohibits this. Tell me where the constitution restricts the federal government from making laws to protect the welfare of its citizenry in this respect.

I've listed some of the principles it violates above.. Also realize the constitution states the limited, enumerated powers for the federal government. Again, LIMITED GOVERNMENT. Just because something might be good or beneficial, that doesn't mean the federal government has the power or authority to do it.

Noting the nature and intent of the constitution, the question isn't where specifically says it can't do something, the question is where does it say the federal government has such authority. Where is the authority granted?

It's argued that the Commerce Clause in section 8 grants the authority to the federal government.
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

If you don't think that sentence grants the authority to federal government to use the power of the federal government to prevent private individuals from engaging in behavior considered discriminatory, then you probably should recognize that the power doesn't exist and is unconstitutional, especially if you can't find great justification than the two words in the preface.

 

[FIND]

The Constitution doesn't, in any way, grant broad swaths of authority and only limit the government in certain areas. In fact, it does the exact opposite because those who crafted and who ultimately ratified that the Constitution unanimously rejected that notion and worked furiously to insure that the government was strongly limited in it's scope through an extensive system of checks and balances. Federalism, dual sovereignty, separation of powers...all were aimed at insuring that the Federal government relegated itself only to a few specific areas; especially when it came to domestic concerns.

The burden of proof is NEVER on showing that the Constitution specifically and directly prohibits some action of the legislature. It is on showing that a law is, in fact, constitutional. Basically any law is effectively assumed to be unconstitutional unless and until and adequate constitutional justification is given. That is what section "C" of Title II of the 1964 CRA is aimed at doing, and that is why it is necessary to do so. The burden of proof is on them to justify the law. They used the concept of the interstate commerce clause to justify it (which by 1964 had become so broadly distorted as to be a legal bludgeon to justify almost any government action). However, an accurate understanding of that clause as it was originally written and intended leaves no uncertainty that the parts of the 1964 CRA in question here are not justified under that clause.

Are you unclear on how the interstate commerce clause is viewed to justify the law and why that is justification is ultimately specious?

No. I am clear on all that. As I understand that, CRA was passed 46 years ago, and has been determined time and again to be constitutional by SCOTUS. If it is someones opinion that SCOTUS is in error, then one must justify that opinion.

Besides, you know history. Nearly everyone said the government collecting an income tax was unconstitutional when they began doing so, same with social security, and medicare. Nearly everything the government does is called unconstitutional by some majority at some point in time, and only some of it is actually "unconstitutional."

Heck, there were groups that called requiring Miranda warnings unconstitutional.

We are talking about one specific area, and one of the basic things government should do, and that is to ensure the general welfare of its citizens. Tell me how this does NOT fall under that. Why specifically is it unconstitutional to limit discrimination in your opinion?


At times a person must accept that many things such as this are less a question of constitutionality, and more a question of right and wrong. Whether the government SHOULD do it, instead of whether the government has a right to do it.

 

[shagdrum]

Just because something might be good or beneficial, that doesn't mean the federal government has the power or authority to do it.

Quoted for truth.

That cannot be stated often enough.

 

[foxpaws]

Only if you don't understand the constitution.

As usual, you ignore the whole idea of Federalism in your "analysis" of the Constitution; an idea that is one of the cornerstones of the Constitution. Therefore, any "analysis" you provide is wrong because it is premised on a distortion of the Constitution.

However, injecting a false premise through an implied assumption like that is very subtle. Nice try.

Show me how zoning laws don't bump up against personal property rights... Since you claim there is a distorting, actually prove it shag - just saying so doesn't make it so...

Libertarians fear that private property rights are to be government grants of privilege–to be tolerated when convenient to the government, but no longer as a significant human right in itself.

Therefore they are against most zoning restrictions, which expand government beyond the constitution and the 5th amendment shag.

 

[FIND]

What "claim" am I making that is unsupported or inaccurate?

You are stating that private entities do not exist publicly. You have also stated that you do not own the sidewalk and frontage, which may differ in some municipalities, but for the most part, you own the sidewalk and frontage.

How do you leave that out when the entire legal justification is based solely on the commerce clause?

This is used as the justification yes. However your argument is that it is bastardized and that it goes against the principles of constitutionality. I wish to restrict the discussion to that, not repeated arguments that the commerce clause is bastardized.

I have, but I won't presume you know what I'm talking about anymore, so I'll spell it out for you.

It violates the principles of private property outlined in the 5th amendment: [No person] be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Doesn't sound to me like a person is being deprived of life, liberty, or property by telling them that they cannot discriminate. Sounds to me like the government is prohibiting its citizens from depriving others of their own personal liberties.

The right to free association, associated with the freedom of assembly as outlined in the 1st amendment and defended in the case NAACP vs. Alabama.

And this does not extend to commercial transactions. Commercial acts and transactions only know one color. Green. The government makes no laws that would stop any store owner from declining Pesos. The government only says that the currency it issues is legal tender for all debts public and private, and that you must accept it in exchange for said debts. Besides, that case didn't really have anything to do with segregation, it had to do with their right to operate in Alabama.

And the legal justification of the law comes from bastardizing the commerce clause, something that has created a dangerous legal precedent that gives the federal government the power to regulate vast amounts of private and business activities that it should have no right to interfere in.

That is an opinion that is not supported by the decisions of SCOTUS.

Look at how the commerce clause has been abused over the past 70 years.

An abuse of the clause does not invalidate the clause. It just means that the clause is too vague.

I've listed some of the principles it violates above.. Also realize the constitution states the limited, enumerated powers for the federal government. Again, LIMITED GOVERNMENT. Just because something might be good or beneficial, that doesn't mean the federal government has the power or authority to do it.

Once again, where do you get the idea that this is an instance where the government has no authority?

Noting the nature and intent of the constitution, the question isn't where specifically says it can't do something, the question is where does it say the federal government has such authority. Where is the authority granted?

One of the basic tenants of government is that it exists to ensure the well-being of its citizens.

It's argued that the Commerce Clause in section 8 grants the authority to the federal government.
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

If you don't think that sentence grants the authority to federal government to use the power of the federal government to prevent private individuals from engaging in behavior considered discriminatory, then you probably should recognize that the power doesn't exist and is unconstitutional, especially if you can't find great justification than the two words in the preface.

straw man.....

 

[shagdrum]

No. I am clear on all that. As I understand that, CRA was passed 46 years ago, and has been determined time and again to be constitutional by SCOTUS. If it is someones opinion that SCOTUS is in error, then one must justify that opinion.

When has this issue in the 1964 CRA been brought before the SCOTUS?

Assuming, for the sake of argument, that it has been brought up before the SCOTUS (and I am unaware of it being brought up before the court), just because a specific court has ruled a law constitutional does not mean that the law is, objectively, constitutional. It simply means that, in that specific court's opinion, the law is constitutional. You need to examine the justification in the rulings and weigh those against the objective standard of the meaning and intent of the Constitution. The argument made in the ruling is everything.

As I have pointed out in a different thread, for most of the 20th century, the SCOTUS has been dominated by a school of thought that recognizes no objective standard in it's interpretation of the constitution. Those courts have regularly said that certain laws which are clearly unconstitutional are, in their estimation, constitutional (and vice versa). This has lead to an expansion of governmental power and distortion of the constitution in numerous areas. Legal fictions like "substantive due process" and "incorporation" have, effectively, been written into the constitution by 9 unelected justices.

Another thing to consider is that the court can not simply take up any constitutional question it chooses. It can ONLY take up a constitutional question if it is brought before the court in a new case. The court cannot revisit old cases and make new rulings on them. So, a current court that generally holds to an objective standard of constitutional interpretation cannot start overturning bad case law from previous, more activist courts. Only if that same (or similar) constitutional question is brought before the more originalist court, can the issue be revisited.

There are also the issues of standing in weather or not a case gets to the SCOTUS and what the specific Constitutional question is. The Newdow case was thrown out due to standing. The court in no way said that the phrase "under God" in the Pledge of Allegiance was or was not constitutional. So, to view the rejection of the Newdow case as the SCOTUS ruling that the phrase "under God" in the Pledge of Allegiance is constitutional would be wrong.

Also, just because the court rules a law constitutional in one area does not mean that the same law is not unconstitutional in another area. It only means that in that specific area of constitutional uncertainty brought before the court, that specific court viewed law as not violating the constitution.

The specific context of the case, the constitutional question being examined and the ruling are all paramount. Glossing over any those is often what gets people in trouble in unintentionally making misleading generalizations. News sources, in reporting on these things almost always make that mistake; unintentionally oversimplifying things and misleading.

The SCOTUS is not the ultimate arbiter of constitutionality. They are an imperfect check on the government; a check that is subject to all the potential flaws in judgment and many of the political influences and failings of the other branches of government. Remember that the SCOTUS ruled that slavery was not a violation of the constitution in the Dred Scott Decision when it unquestionably was a violation of the Constitution and the inherent principles it was founded on (specifically, Natural Rights). Also, look at how long it took for the issue of slavery to reach the SCOTUS in 1857; generations.

 

[FIND]

When has this issue in the 1964 CRA been brought before the SCOTUS?

Specifically.... I can't recall if it has ever been. However, it is used to support the other decisions of the SCOTUS, and the opinions of SCOTUS when this is used back this position up. But, when I have the time, I will look and find a few cases where SCOTUS evaluated decisions by lower courts involving civil rights "violations" by private parties.

Now, as to the issued of the pledge of allegiance, yes. That is true.

As to the rest.... Well, that is your opinion, and you are certainly entitled to it, but in the end, it is still an opinion. Yes, of course SCOTUS is not perfect, as nothing is really, but, it is the best system we have. To bring something before SCOTUS, you need reason. As you said, SCOTUS cannot arbitrarily review every past decision and overturn them. It would never get anything done otherwise.

THEREFORE, the burden of proof is on anyone who wishes for a change in the law, not on someone who supports the current law. Even if SCOTUS or the law is not perfect.