2010 Mid-term Election season starts in the U.S.

[aliantha]

Z, I wasn't sure if you were advocating your position sincerely, or playing devil's advocate. Seems it was the latter. Sorry for sniping at you (that's what happens when I post at midnight ).

Is the difference perhaps that blacks are a protected class under the law? I can think of an example of discrimination today that nobody bats an eye at: shopping malls that post a curfew for teen customers. Malls can get away with that because teens aren't a protected class.

And btw, while I don't think we would go back to enslaving blacks, I have no illusions that slavery of *some* sort could happen again here. In fact, it already does. Every now and then, there's a story in the paper of somebody bringing an immigrant here, or "hiring" one, and basically forcing them into slavery. It's not widespread and it happens in private homes. But it does happen.

We're also talking, in a different thread, about the hiring of illegal immigrants to work for less than minimum wage. If private employers are already skirting the immigration laws by hiring these workers, what's to stop them from formally enslaving them, if the relevant portion of the CRA is repealed?

[Cybrweez]

ali, sounds like you're talking about working conditions, which are a hell of a lot different than slavery, no matter how bad the working conditions are.

[SerScot]

Aliantha,

We're also talking, in a different thread, about the hiring of illegal immigrants to work for less than minimum wage. If private employers are already skirting the immigration laws by hiring these workers, what's to stop them from formally enslaving them, if the relevant portion of the CRA is repealed?

Enforcing existing laws against employing people for below the minimum wage and employing people in the U.S. illegally? Neither of which are part of the CRA.

[Avatar]

So let's look at your answer: limiting your freedom/movement/activity. What if the shop owner is fed up wiht a certain type of people in his store, and he realizes he can't discriminate without prosecution, so he closes his store and sells his business. Then everyone has their freedom/movement/activity limited because they can no longer go to this store like they could before.

But they can go to any other store. Me closing my business doesn't take away somebodies freedom to shop there. Just their ability. If nobody can shop there anymore, then nobody is being prevented from shopping there.

We do not have obligations to make shopping options available to people.

No. But we do have the obligation to ensure that what options exist, are available for anybody.

--A

[Zarathustra]

So let's look at your answer: limiting your freedom/movement/activity. What if the shop owner is fed up wiht a certain type of people in his store, and he realizes he can't discriminate without prosecution, so he closes his store and sells his business. Then everyone has their freedom/movement/activity limited because they can no longer go to this store like they could before.

But they can go to any other store. Me closing my business doesn't take away somebodies freedom to shop there. Just their ability. If nobody can shop there anymore, then nobody is being prevented from shopping there.

They are being prevented from shopping there if he closes his shop specifically for that reason (i.e. because he no longer wanted to serve a certain race). Just because everyone is prevented equally doesn't mean that his limiting freedom wasn't done for racist reasons.

So we're left with the peculiar conclusion that it's okay to limit people's freedom as long as you limit them equally--as though equality is more important than freedom. [It's worth noting that this is the same kind of principle many libs apply to economics, too, in the form of wealth redistribution: everyone being worse off (though more equal) is better than everyone being richer (though with a wider gap between top and bottom).]

We do not have obligations to make shopping options available to people.

No. But we do have the obligation to ensure that what options exist, are available for anybody.

--A

While that sounds reasonable and fair, we're back where we started, because that sentence doesn't sufficiently distinguish shopping from smiling. If the option exists for white people to engage in warm salutations from me as we pass on the sidewalk, then that option should also be available for anybody else, right? If your statement has general truth, this must be true. Therefore, if it's not true, then there is some fundamental distinction between the kinds of options we're talking about here such that smiling can't be included in the general maxim. That fundamental distinction of type seems pretty elusive for us to define. You tried to say that the distinction was one of limiting freedom, but then acknowledge that it's not really the limitation of freedom that matters, but rather the equal limitation of freedom (as in the closing the store case). Therefore, there is nothing about this type that allows us to derive a distinction in rights. It always falls back to a general issue of equal treatment (regardless of the specific underlying activity in which treatment is an issue), which doesn't sufficiently distinguish shopping from smiling.

So we're missing something here. And that something is a uniquely logical way to derive a right to the same shopping options as everyone else.

As an aside: we already we lack that "right." I can't shop at stores I can't afford. And this isn't merely a contingent detail irrespective of race, if we acknowledge that it disproportionately affects blacks more than whites. It's a de facto segregation. Is that particular race-based limitation of freedom of shopping options itself a violation of the same fundamental rights? If so, no wonder liberals are for wealth redistribution! The gap between the rich and the poor itself is a "violation" of the right of freedom from discrimination.

[Lord Mhoram]

Scot,

As I understand it, the Constitutionality of the Civil Rights Act is firmly established, by Heart of Atlanta and a bunch of other cases from that period. (I'm not suggesting you or anyone else has said otherwise, but it bears repeating.) Title II of the Civil Rights Act (the one I presume Rand Paul refers to when he talks about the tenth provision he would have voted against) makes it illegal for essentially all businesses (the private clubs you've mentioned being the exceptions) to racially discriminate and Title VII broadly outlawed employment discrimination. What I'm unclear on is if you, Zarathustra, and Rand Paul for that matter are against these provisions, and if so, how, from a legal perspective? I've been reading some Oliver Wendell Holmes. The following quote has really struck me and I have a feeling I'll be quoting it a lot in discussions here for a long time to come: "The life of the law has not been logic; it has been experience." Fortunately for my case, the logic of the law is on the side of the government's ability to outlaw racial discrimination. But the American experience demanded the government take strong action on ending legally entrenched de jure racial discrimination. We can't forget that it was the federal government that needed to shoulder that role. Its muscle is what changed our society for the better.

[SerScot]

LM,

Perhaps this is a better way to explain it. Columbia, SC, in the last couple of years passed an ordinance that prevents people from smoking in restaraunts. I like the result. I like being able to go have a beer and not come home smelling like an ashtray. What I don't like is how it was done. I'd prefer to allow individual owners to decide for themselves what legal behaviors they will and will not allow in their private establishments. I would choose to patronize those establishments that don't allow smoking and encourage my friends and family to do the same.

Likewise I don't like businesses who exclude based on race. I would not patronize such an establishment and I would encourage other's to not patronize such an establishment. What I don't like it telling a private property owner who and why they may or may not exclude upon their private property. Thus, I like the outcome of the CRA but I don't care for the mechanism used to achive that outcome.

Does that make sense?

[Lord Mhoram]

Scot,

Okay, that does make sense. In the case of the Civil Rights Act, the reason why we didn't allow the democracy of the marketplace to organically phase out racial discrimination on its own is clear. It wasn't going to happen. Jim Crow was a radically unjust and radically unconstitutional situation and it required a radical response. That's why I find the legislation completely justified, legally (the illegality of "separate but equal" should and in fact does apply to those private businesses that are within the government's purview to regulate) and morally (the result of racial discrimination is a racially divided nation composed of an underclass).

[SerScot]

LM,

I can certianly understand your position. I think the CRA was necessary to do what it did.

I would have prefered the mechanism I described above where the State couldn't provide legal support for a business attempting to eject someone from it solely on the basis of race. Though I recognize how difficult that position would have been for individual law enforcement officers. I also think the Feds would still have had to come in to make local law enforcement do their jobs given the prevailing de jure and de facto racism that existed in the Jim Crow south.

[Zarathustra]

LM,

Perhaps this is a better way to explain it. Columbia, SC, in the last couple of years passed an ordinance that prevents people from smoking in restaraunts. I like the result. I like being able to go have a beer and not come home smelling like an ashtray. What I don't like is how it was done. I'd prefer to allow individual owners to decide for themselves what legal behaviors they will and will not allow in their private establishments. I would choose to patronize those establishments that don't allow smoking and encourage my friends and family to do the same.

Likewise I don't like businesses who exclude based on race. I would not patronize such an establishment and I would encourage other's to not patronize such an establishment. What I don't like it telling a private property owner who and why they may or may not exclude upon their private property. Thus, I like the outcome of the CRA but I don't care for the mechanism used to achive that outcome.

Does that make sense?

Great way to put it. I just said the same thing to my wife an hour ago. ("Great minds ..." eh? ).

In the case of the Civil Rights Act, the reason why we didn't allow the democracy of the marketplace to organically phase out racial discrimination on its own is clear. It wasn't going to happen.

I agree with that, too, which is why I think it's a different question to ask if you are for something and would you have been for it at the time. The history and pragmatics of rights are separate issues.

the one I presume Rand Paul refers to when he talks about the tenth provision he would have voted against

He actually said he wouldn't have voted against the provision you mention? And if so, did he mean now, or then? This is why I say it's such a nuanced issue. These questions matter.

To bring this back around full circle to SS's example:

In Lexington we passed a no smoking ban in restaurants. Just like SS, I didn't like it in principle, but I love it in practice. We were already slowly moving in that direction voluntarily (a few restaurants), but the law was certainly faster. Now that people have had a taste of this no-smoke eating experience, even the smokers think it's better. If the law was repealed tomorrow, I think there would be an entirely different marketplace, becuase of what people are used to now. The demand would have shifted toward boycotting restaurants that don't self-enforce.

I think we've reached that point w/regards to race. I hope it's not too naive of me to have such faith in our culture, but I honestly think we're there.

[Lord Mhoram]

Zarathustra and Ser Scot,

I hope it's not too naive of me to have such faith in our culture, but I honestly think we're there.

Where is "there"? I just don't understand what you two are arguing. We all seem to agree on the history of the Civil Rights Act. Great. So the CRA is on the books and has been for over six and a half decades. I'm arguing the following:
(1) the CRA was extremely well situationally justified by the historical context in which it was enacted;
(2) the CRA was and by consensus continues to be Constitutionally justified;
(3) the CRA's legitimacy preeminently rests upon the legal and moral right of the US federal government to prohibit racial discrimination.

I would (like to think I would) have been in favor of the Civil Rights Act at the time, and I'm for its principle today. The "there" Zarathustra thinks we have arrived at seems to be: not needing the federal government to enforce equal rights, to which I would answer with the following:
(1) we might only be "there" because the federal government brought us there, through the Civil Rights Act and other initiatives;
(2) there's no change in legal consensus over the legitimacy of those kinds of initiatives since then (e.g., the CRA is just as Constitutional today as it was in 1964), so saying "we are at a place where we don't need federal intervention" has no legal relevance whatsoever;
and (3) I see no reason why the principle of federal outlawing of racial discrimination would have changed.

The racial and cultural situation in the United States today is different than it was in 1964 (again, because of the federal government and because of civil rights activism). That doesn't mean that
(a) there could not be racial discrimination in the US today, and that therefore,
(b) the federal government would still, as it was then, be justified in forcibly stopping that discrimination.

[Zarathustra]

(1) the CRA was extremely well situationally justified by the historical context in which it was enacted;

I agree.

(2) the CRA was and by consensus continues to be Constitutionally justified;

I'm not sure.

(3) the CRA's legitimacy preeminently rests upon the legal and moral right of the US federal government to prohibit racial discrimination.

"Legal" depends on the Constitutionality. Again, I'm not sure. "Moral" is subjective. I don't think the government should have the right to violate the rights of some to enforce the rights of others. And I'm not sure if the rights of shopping etc. are greater than the rights of property. Like I said, these are interesting questions.

I would (like to think I would) have been in favor of the Civil Rights Act at the time, and I'm for its principle today.

I think I might have been in favor of it at the time (though it's difficult for me to know how I would act in different times and cultures--perhaps it's pure arrogance to think I'm so above influence that I'd turn out exactly the same). I'm certainly for its principle today, but not its implimentation.

The "there" Zarathustra thinks we have arrived at seems to be: not needing the federal government to enforce equal rights,

Yes.

to which I would answer with the following:
(1) we might only be "there" because the federal government brought us there, through the Civil Rights Act and other initiatives;

I'll grant that. It's part of what I was talking about in my "full cirlce" smoking ban point.

(2) there's no change in legal consensus over the legitimacy of those kinds of initiatives since then (e.g., the CRA is just as Constitutional today as it was in 1964), so saying "we are at a place where we don't need federal intervention" has no legal relevance whatsoever;

Okay. I don't need others to agree with me in order for me to hold my position.

and (3) I see no reason why the principle of federal outlawing of racial discrimination would have changed.

Principles are separate from pragmatics! Either you're not reading my posts, or you're not understanding them. The principle remains the same: discrimination is wrong. The method is what's at question: to outlaw, or not? Different times call for different methods. I'm okay with compromising principles for outcomes, sometimes, depending on the situation. For instance, I think I would have supported the CRA if I lived 40 years ago, even though that contradicts my principles today. I feel no compulsion to live a noncontradictory life ... I think it's impossible. Didn't you say something about, "the life of the law has not been logic ..."? I agree. And yet, you're arguing for something as if its logical foundation is settled and (more importantly) unchanging. It's enough for me to say it was bad, and I wouldn't have been for it, and I would have supported the CRA at the time without settling the logic in my head. However, now, we can ask these questions about the logic of rights because we have the luxury (provided in part by the CRA) of separating the issues.

The racial and cultural situation in the United States today is different than it was in 1964 (again, because of the federal government and because of civil rights activism). That doesn't mean that
(a) there could not be racial discrimination in the US today, and that therefore,

Of course. But there's still racial discrimination today even with government enforcement. It's just more hidden so we don't know when we're giving our money to racists.

(b) the federal government would still, as it was then, be justified in forcibly stopping that discrimination.

[/quote]That's the heart of the debate. You can assert it, but that act of assertion doesn't make it true. In order to establish its truth, you'd have to provide the logical justification for your "justified" descriptor ... which puts you at odds with your own maxim about the life of law. Either it's based on logic, or you have to admit that times change, which necessitates differing levels of justification.

[aliantha]

Very well put, LM.

My point about slavery and illegals above was in reference to one of Z's comments a couple of pages back -- about whether anybody seriously thought slavery would come back if that part of the CRA was repealed. My point was that if people thought they could get away with it, they would. And I was thinking in terms of skin color -- that just because we wouldn't dream of enslaving Negroes now, doesn't mean we wouldn't enslave *some*body. Hispanics were the first nonwhite race that came to mind. (Reminds me of a routine by the late, great Freddie Prinze, about how immigrants to the US start out cleaning toilets here. Right now it's the Hispanics cleaning the toilets, he said, and then he said, "That's why the Chinese are so quiet -- they know they're next." )

[wayfriend]

My point was that if people thought they could get away with it, they would.

They do. Slavery is alive and well in the world today. It's (I presume) universally illegal, and yet it thrives: if a country made it legal to enslave, the slavers would be there in a heartbeat.

Similarly, if we repealed part 10 of the CRA, we'd have racially discriminatory businesses cropping up all over before too long.

Business discrimination is another doorway to segregation. If you live in a small town, where one business is the only one of it's kind, being denied service is rather harsh. It's way more of a problem to someone than choosing which restaurant to patronize. The "I'd not choose to go there" byline that comes with Rand's argument is in fact a clever ruse to mischaracterize the ill effects of this kind of discrimination.

[SerScot]

Wayfriend,

The "I'd not choose to go there" byline that comes with Rand's argument is in fact a clever ruse to mischaracterize the ill effects of this kind of discrimination.

If people will not patronize a business because it refuses to serve racial group X how will it stay in business? Boycotts are the most effective means of getting people to change their practices because they cannot be bypassed. I would sincerely hope a business that openly refused service to racial group X would find themselves facing a serious boycott and be forced to change their business practices. Heck, I wouldn't shop their after they changed their practices.

[[Syl]]

I think that works for medium-sized establishments but would have little impact on large chains or mom and pops so long as the decisions reflected the values of the community. It also ignores the problem of property sales or even lending. If someone doesn't want to sell to a minority, there's really no disincentive, leaving the power structure stacked against minorities.

And if you're allowed to discriminate to whom you sell, wouldn't it make equal sense to allow discrimination in hiring?

No, I believe going back on the CRA at this point would lead slowly, subtly back to Jim Crow and exacerbate problems we already have with segregated neighborhoods and communities.

[SerScot]

Sly,

I think that works for medium-sized establishments but would have little impact on large chains or mom and pops so long as the decisions reflected the values of the community.

Large chains aren't going to shut out minorities simply because their money is a good as anyone elses. Mom & Pops, if the community backs their actions, are a problem. That said, how many communities are left that would back the Mom & Pop's actions.

It also ignores the problem of property sales or even lending. If someone doesn't want to sell to a minority, there's really no disincentive, leaving the power structure stacked against minorities.

Again, minority money is as good as anyone else's. Why would these non-Mom & Pop's reject minority money? I live in the deep South in a middle-middle class neighborhood. It's about 30-40% minority owned our property values are stable and the neighborhood (my yard excluded) is fairly well maintained with an active neighborhood association. If this recidivist desire for segregation were present I would think our property values would be dropping as our minorty population increased.

[wayfriend]

Wayfriend,

The "I'd not choose to go there" byline that comes with Rand's argument is in fact a clever ruse to mischaracterize the ill effects of this kind of discrimination.

If people will not patronize a business because it refuses to serve racial group X how will it stay in business?

The thrust of your argument is about the effects on the business.

By and large, businesses that choose to refuse to serve racial group X are quite happy to abide by the results.

It's the affect on group X that should be the concern.

Imagine if your pipes burst, and the only plumber in 50 miles that takes emergency calls doesn't serve your kind. Or if the grocery store downtown won't let you in, forcing you to drive to another town for your groceries.

[SerScot]

wayfriend,

Wayfriend,

The "I'd not choose to go there" byline that comes with Rand's argument is in fact a clever ruse to mischaracterize the ill effects of this kind of discrimination.

If people will not patronize a business because it refuses to serve racial group X how will it stay in business?

The thrust of your argument is about the effects on the business.

By and large, businesses that choose to refuse to serve racial group X are quite happy to abide by the results.

It's the affect on group X that should be the concern.

Imagine if your pipes burst, and the only plumber in 50 miles that takes emergency calls doesn't serve your kind. Or if the grocery store downtown won't let you in, forcing you to drive to another town for your groceries.

You make a very good point. I need to cogitate upon it. But I suspect, if it's something like plumbing, there will be someone who is willing to take minority money if they are willing to pay. The real problem would be price gouging against minorities, after all, who knows what is a fair price for a plumber to charge if you know nothing about plumbing.

Additionally, I focus upon business because businesses that don't get business don't stay in business. Therefore, if the only plumber in 50 miles gets know business another plumber will move in to take his business. In other words for a segregationist business to operate it needs to be in community that strongly supports segregation. Does such a community still exist in the U.S.?

When I say community I don't mean three trailers down at the end of the third dirt road. I mean a real identifiable community that has the numbers to support small private businesses.

[Avatar]

Interesting posts guys.

And if you're allowed to discriminate to whom you sell, wouldn't it make equal sense to allow discrimination in hiring?

Well there is discrimination in hiring. You just have to keep your reasons secret.

Seriously though, I agree that it might be the start of a slippery slope.

--A