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| | who has more rights? Page 6 of 10 (1, 2, 3, 4, 5, 6, 7, 8, 9, 10) | 1. You must acknowledge, at least, that what you refer to as "abuse" of the Commerce Clause, others consider reasonable interpretation. If the question of whether using the Commerce Clause for 48 years to prevent private discrimination makes that practice proper "doesn't interest you", IMHO you go from being an autodidact student of Constitutional Law to being a *crank*.
I'm not a fan of the 2nd Amendment, but I'm not going to pretend that the "well regulated militia" language in that clause means that private firearms ownership is constitutionally limited to people serving in the National Guard, because that would be a *crank* interpretation of the clause. (And this, regardless of fun facts like (a) the British are not coming back, (b) even a militia armed with assault rifles and anti-tank weaponry has no reasonable prospect of overthrowing a tyrannical U.S. government, (c) crack dealer posses were probably not what the Framers had in mind.
2. I personally think that Boumediene v. Bush was probably a bad decision. Possibly not for the same reasons that you do. I do not think that Scalia J.'s interpretation of the decision in his dissent is correct, but it certainly opens the door for a litigant to argue for that interpretation of the decision, which if applied would yield an outcome as crazy as Scalia J. is suggesting. Roberts C.J.'s dissent is much closer to being correct, IMHO. While the whole "War on Terror" analogy was completely misguided to start with, if one is to take it seriously, the main thing distinguishing Johnson v. Eisentrager from Boumediene v. Bush is refusing to take seriously the notion that Guantanamo is legally Cuban territory. If it is de jure Cuban territory, one applies Johnson v. Eisentrager, case closed.
3. In regard to the common law-- it DOES change the point. It's one thing to claim that you *meant* "without good reason" to mean something in particular, or something relevantly similar to a list of examples, but the *reality* was that a whole range of businesses treated African ancestry as "good reason". And as a side point, it's generally a less-than-effective rhetorical strategy to admit that you have not even researched the area of law that you are making broad claims about.
4. You do realize that you are arguing in favor of permitting the re-legalization of de jure racial segregation. Make all the claims you want about how you supposedly think it's properly a matter of State and not Federal legislation, but that is a lost cause. Most of the readers who actually read your arguments and actually understand them are mentally picturing you with a white hood on.
5. You do not care why or if a private person chooses to discriminate, or against what category of people. Judging by anecdotal evidence as well as decades of SCOTUS case law, you are very much in the minority in that view, assuming it is sincerely held. People reading your posts could easily be forgiven for concluding that you just do not like black people or those of non-European ancestry in general, and that these Constitutional law arguments are just a fig-leaf for articulating that view.
6. There are a lot of racially biased Americans, of various backgrounds. Your denial is not evidence. It is not the business of the Federal government to correct their thinking. It is within the jurisdiction of the Federal government under the Commerce Clause to legislate certain limits on their ability to act on that thinking, when those actions impinge upon interstate commerce. You do not like that, but SCOTUS and the Courts in general do not share your views. | |
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| who has more rights?
Posted: 7/23/2012 9:35:27 AM | It's a privately owned business, they can do as they please. If you don't like it, don't eat there.
It really is that simple. | |
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Posted: 7/23/2012 10:00:03 AM | would it make a difference if they advertised they were a christian B&B?
Or they could keepit really simple and call themselves a B&B for B. Bed and breakfast for bigots.
That would weed out a lot of 'unwelcome' buiness for them. | |
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Posted: 7/23/2012 11:34:36 AM |
would it make a difference if they advertised they were a christian B&B?
Or they could keepit really simple and call themselves a B&B for B. Bed and breakfast for bigots.
That would weed out a lot of 'unwelcome' buiness for them.
That would be in keeping with the whole "truth in advertising" idea...
I suspect the reason they don't want to be that truthful is that they would lose too much business from the "people we don't hate" who would be unwilling to support their bigotted practices... Better to "keep it under our hat" until "people we hate" actually show up at the door... | |
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Posted: 7/23/2012 2:15:00 PM |
You must acknowledge, at least, that what you refer to as "abuse" of the Commerce Clause, others consider reasonable interpretation.
Of course I do. I also acknowledge that although I consider clitoridectomy abuse of females, many others consider it reasonable.
an autodidact student
Please don't use such big words when you try to insult me. If you stick to the barnyard language some of the brain trust here are so fond of using--despite a forum rule which is more honored in the breach than in the observance--then I can understand you.
the main thing distinguishing Johnson v. Eisentrager from Boumediene v. Bush is refusing to take seriously the notion that Guantanamo is legally Cuban territory. If it is de jure Cuban territory, one applies Johnson v. Eisentrager, case closed.
Baloney. Guantanamo IS legally Cuban territory, as is any land one country has leased from another, rather than acquired outright by conquest, etc. You might as well say the grounds of a nation's embassies are not that nation's territory, because in every case it is obviously the host nation that exerts the real control over those grounds.
Everything about Boumediene was contrived to gin up the desired result of granting habeas to alien war criminals for the first time. "That Texan halfwit in the White House is just not being nice to the Muslim jihadists the country's at war with, and we in our great wisdom think that's bad. So if we feel like ignoring our 200-year-long tradition of strongly deferring to the President in the conduct of war, we will. It's up to us as the good guys to ride to their rescue--after all, would Earl Warren--or John Adams--have done any less?"
So the majority ignored Eisentrager, a very well reasoned decision that was right on point, and instead cooked up a fantastic argument based on a couple domestic cases that had nothing to do with the issue.
You do realize that you are arguing in favor of permitting the re-legalization of de jure racial segregation. Make all the claims you want about how you supposedly think it's properly a matter of State and not Federal legislation, but that is a lost cause.
Of course I think private discrimination, on whatever grounds, should be legal. I support the right of any bigot to be just as bigoted as he pleases. I do not think it is the job of even a state government, in most cases, to try to force private citizens to enter into agreements with people they don't like. I would impose only the traditional common law duty on businesses that, by holding themselves out to all comers, lead people to expect they will be served, and which might seriously harm anyone they did not serve. I also do not support any federal law that is not authorized by the Constitution--nor does anyone who believes in the rule of law instead of just paying lip service to it.
Most of the readers who actually read your arguments and actually understand them are mentally picturing you with a white hood on . . . People reading your posts could easily be forgiven for concluding that you just do not like black people or those of non-European ancestry in general, and that these Constitutional law arguments are just a fig-leaf for articulating that view.
Fine by me. I don't plan on losing any sleep over what anyone I don't know pictures me as.
You do not like that, but SCOTUS and the Courts in general do not share your views.
I don't arrive at my views by first researching who shares them. What lower courts think about this doesn't matter anyway--they can only follow the Supreme Court's interpretation of the Commerce Clause. Contrary to what you're claiming, seventy years of almost continuous expansion of Congress' power over local and individual actions under that clause doesn't mean the tide can't turn. Just recently, in the Obamacare decision, a large majority on the Court strongly checked the unlimited expansion of the Commerce Clause a lot of liberal law professors had come to take for granted. | |
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| who has more rights?
Posted: 7/23/2012 2:38:14 PM | If you have beliefs that exclude certain people, law abiding people, then perhaps going into a business such as that isn't a good option
Look at the outcome. They can't be feeling good about how things turned out. This was bound to happen | |
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Posted: 7/23/2012 4:13:40 PM | | ^^^^^So I guess a Jew who has a four-unit rental and lives in one of the units should have to rent to a law-abiding member of a neo-Nazi group who has swaztika tattoos and thinks Hitler's biggest mistake was in letting any Jews survive. If he turned him away, he couldn't feel good about how things turned out, could he? Maybe he just shouldn't be a landlord. | |
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Posted: 7/23/2012 5:43:15 PM |
So I guess a Jew who has a four-unit rental and lives in one of the units should have to rent to a law-abiding member of a neo-Nazi group who has swaztika tattoos and thinks Hitler's biggest mistake was in letting any Jews survive
So just to clarify, you're now equating gay people who stay in bed and breakfasts to Hitler, the second most evil man in history?
Adolf Hitler was appointed Chancellor of Germany in 1933, becoming “Führer” in 1934 until his suicide in 1945. By the end of the second world war, Hitler’s policies of territorial conquest and racial subjugation had brought death and destruction to tens of millions of people, including the genocide of some six million Jews in what is now known as the Holocaust
My goodness, gay people must scare the day lights out of you. | |
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Posted: 7/23/2012 5:59:58 PM |
^^^^^So I guess a Jew who has a four-unit rental and lives in one of the units should have to rent to a law-abiding member of a neo-Nazi group who has swaztika tattoos and thinks Hitler's biggest mistake was in letting any Jews survive. If he turned him away, he couldn't feel good about how things turned out, could he? Maybe he just shouldn't be a landlord.
I get the point you're trying to make, albeit heavy-handedly, but I don't think we're seeing any neo Nazis fighting for their right to patronize Jewish owned properties in line with the scenario you describe. That would be precious to witness. | |
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Posted: 7/23/2012 9:28:25 PM | ^^^^If you don't like that hypothetical, there are lots of other possible ones. The issue is forcing people to enter into agreements with people they don't like--for whatever reason. A lot of people don't seem to know that almost nothing in the Constitution applies to discrimination by *private persons.*
The guarantees of equal protection and due process, which are most often involved in discrimination cases, are in the 14th Amendment. That post-Civil War amendment was intended to secure the civil rights of all those newly freed blacks from being unfairly infringed by the *states*--not by individuals. The 13th Amendment applies directly to individual citizens, but prohibiting slavery isn't the issue here.
It's exactly because nothing else applies that in the Fifites, creative types began to think Congress' power to regulate interstate commerce might be used to prohibit private race discrimination. If you can't find anything else in the Constitution, just claim it's about interstate commerce, and if the courts buy your sophistry, bingo, it's suddenly subject to federal law. (The government recently tried to justify the Obamacare individual mandate on this same ground, and this time the Court wasn't buying it.)
States are free to outlaw various kinds of discrimination by private persons, within limits. A state law can prevent a person from discriminating against people for various reasons, but not to the point where it violates his freedom of association or his right to privacy. Both are guaranteed by the U.S. Constitution. You may not be able to discriminate arbitrarily in choosing tenants for your quadriplex, but how about for your duplex? Can you discriminate in renting a room in your house? How about private clubs discriminating in their membership standards? And so far, at least, there are no laws preventing people from discriminating when it comes to who they date or invite to their dinner parties. | |
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Posted: 7/23/2012 9:55:04 PM | It's no different than a hotel .
Can you imagine if they'd said "No whites allowed" or "Jews not welcome" ? Perhaps a doctor refusing to perform a critical surgery because his or her religion didn't allow it ?
Suggesting that either one has more or fewer rights or privileges is to misunderstand the idea of universal application of law . | |
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| who has more rights?
Posted: 7/23/2012 10:19:27 PM |
It's a privately owned business, they can do as they please. If you don't like it, don't eat there.
It really is that simple.
Ah , but we're not just talking about a hostile environment ,we're talking about an outright refusal to serve . There's a difference .
You don't have to be gay , Christian , or a lawyer to understand the issue here . All you have to know is that the law doesn't allow any business to discriminate against anybody based on sexual orientation . Furthermore , when you open a business you also willingly choose to subject yourself to such laws .
If you allow every business to discriminate based on rather arbitrary criteria , how long do you think it'll be before you can't buy gas when you're almost out and are about to find yourself stranded in the middle of nowhere ? Or perhaps you can't get emergency medical treatment as the nearest hospital because you're the wrong religion and time is of the utmost importance ? Can't send your kids to the private school you want them to go to because you don't make as much money as they want you to ? I'm not saying that every business is going to stick some bigoted sign in the window the minute we strike down anti-discrimination laws . I'm saying that there will be enough of them to be noticeable . Ask any black person alive in the forties what kind of service they could expect at the average diner back then .
Don't get me wrong , ... believe it or not , I actually agree to a certain degree with the principle of what you're saying but you have to remember that it should be YOUR choice to patronize a business or not . As it stands , enough places have in fact managed to get around these laws in practice despite managing to otherwise adhere to the law on paper . I have a problem with those places but that's not necessarily what we're talking about right now .
The point still stands though ... while a customer may choose where to spend his or her money , a business can't refuse service based on arbitrary criteria . | |
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Posted: 7/23/2012 10:33:13 PM |
If you don't like that hypothetical, there are lots of other possible ones. The issue is forcing people to enter into agreements with people they don't like--for whatever reason. A lot of people don't seem to know that almost nothing in the Constitution applies to discrimination by *private persons.*
That's fantastic but this thread is and always has been about a business dicriminating against gay people in Canada. If you absolutely must win the argument then yes, you're right. The nice christian familiy could for sure ban all gay people from hanging out in their private residence. Not that they would need to. But you're still absolutely right about that.
You may not be able to discriminate arbitrarily in choosing tenants for your quadriplex
Correct.
but how about for your duplex?
Nope. Still can't keep those homosexuals out.
Can you discriminate in renting a room in your house?
YES! Yes you can, Matchlight! (excuse the Obama-ism) You can tell gay people to take a hike because there is no way you're renting a room in your private residence to gays simply because they're gay and only because they're gay. Perfectly legal...at least where I live.
How about private clubs discriminating in their membership standards?
There's usually a list of criteria you can omit from your private club. These usually don't include sexual orientation. Certain businesses are allowed to be open to women or men only for example. But other businesses must allow both. Such restrictions are permissable as long as other fascilities are available to all ages, genders, etc etc. | |
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Posted: 7/23/2012 11:03:34 PM |
^^^^^So I guess a Jew who has a four-unit rental and lives in one of the units should have to rent to a law-abiding member of a neo-Nazi group who has swaztika tattoos and thinks Hitler's biggest mistake was in letting any Jews survive. If he turned him away, he couldn't feel good about how things turned out, could he? Maybe he just shouldn't be a landlord.
Everybody can see the issue here but it's beside the point .
You said that the neo-Nazi is law-abiding . He's still got stupid beliefs but every time I see a psychic on television I think both they and the people who believe their nonsense have stupid beliefs as well . The key here isn't belief in some outlandish idea or another , it's whether or not somebody has put those ideas into practice . Being a neo-Nazi may be illegal and on those grounds , you could refuse to rent to the skinhead . If it's not illegal then you've got no case at all . It's simply a matter of what's legal and what isn't . | |
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Posted: 7/24/2012 12:16:44 AM | If he turned him away, he couldn't feel good about how things turned out, could he? Maybe he just shouldn't be a landlord.
If he lost his business because of it, like the people in the topic, then no, probably not (???) | |
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Posted: 7/24/2012 8:57:21 AM | #140
<div class="quote">The nice christian familiy could for sure ban all gay people from hanging out in their private residence.
I think you misunderstood. I meant "private persons" in the usual sense of persons other than the government. Owners of private businesses are private persons. In the U.S. at least, I don't believe there is any authority for federal laws preventing discrimination, for any reason, whether in choosing dinner guests or employees, by any private person.
#138
<div class="quote">It's no different than a hotel .
I'm sure that figured in this case. I mentioned earlier that innkeepers have had a common-law duty to serve all customers for centuries. Common carriers, e.g. bus lines, have the same duty. That doesn't mean other businesses where customers are more free to patronize competitors should have that special duty to serve.
#139
<div class="quote">All you have to know is that the law doesn't allow any business to discriminate against anybody based on sexual orientation
The mere fact a law is on the books doesn't mean it's legitimate, or that it shouldn't be changed.
<div class="quote">If you allow every business to discriminate based on rather arbitrary criteria , how long do you think it'll be before you can't buy gas when you're almost out and are about to find yourself stranded in the middle of nowhere ? Or perhaps you can't get emergency medical treatment as the nearest hospital because you're the wrong religion and time is of the utmost importance ?
There are always special cases like you're citing where laws against discrimination make sense. But in most cases, people are free to patronize another restaurant or dry cleaner, rent another apartment, work for another employer. I would let those private businesses discriminate arbitrarily in choosing the people they deal with.
<div class="quote"> while a customer may choose where to spend his or her money , a business can't refuse service based on arbitrary criteria
That's describing the way things are, but without explaining why they should be that way. Business agreements should be freely entered into. I don't see any basis for giving sellers less freedom than buyers, except where there are so few sellers that a buyer has little or no choice. The owner of a motel or gas station in a remote area who refused a customer on a cold night would even be exposing him to harm. But state laws always covered those exceptional situations.
I don't know if the distinction between state and federal authority to outlaw discrimination exists in Canada, but it is very important here. States have inherent authority the federal government does not have. So state laws can reach matters the federal government has no authority to regulate. And laws made without authority are not really laws. | |
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Posted: 7/24/2012 1:44:55 PM |
But in most cases, people are free to patronize another restaurant or dry cleaner, rent another apartment, work for another employer
Yes. That's fantastic. We could ensure that all businesses catering to homosexuals were in the same part of town and as such we could create a ghetto effect which would make rounding them all up much easier. Good thinking. Kind of begs the question though...why should anyone have to seek alternative services just because they're gay?
I would let those private businesses discriminate arbitrarily in choosing the people they deal with.
Well there it is. At last. Thanks for finally being honest. | |
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Posted: 7/25/2012 6:58:49 AM | matchlight ,
You're really not looking at things from a practical standpoint .
What difference does it make for you whether a law is 'right' or 'wrong' when the cop is arresting you for breaking it ? You can challenge the law if you like but you could also have done that without breaking it . So , arguing about the ethical or constitutional basis for any law is beside the point . If the law says weed is illegal then you'd be smart to simply not sell or traffic any until you can manage to get the law reversed . It's really quite abstract from a practical perspective .
If you want to argue that a business should have the right to refuse service to anybody based on whatever particular leanings the owner of the establishment has , well , aside from what a monumentally stupid business model it is , I'd like for you to explain to me how this benefits anybody as an individual , part of a group , or as part of a nation . Why shouldn't you be allowed to buy a cellphone because of your skin colour ? Why shouldn't you be served at a restaurant because you don't have a card to prove you're a member of the Democratic party ? Why wouldn't you be allowed to rent or watch a movie in a cinema because you're male ?
I don't think you've really given this the proper amount of thought because you don't seem to understand how it would affect you . If you don't think that such a society could exist whereby you can't get basic services or even necessities because you're not the "right kind" of person then you haven't read much history . You can't really be this blind to the repercussions can you ? | |
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Posted: 7/25/2012 8:46:32 AM |
Just curious,,, but what about a restaurant or club that has a dress code?
If you don't wear certain clothing, you aren't allowed to enter.
How is that different?
It's different because they are not discriminating against anyone's race, religion, gender or sexual orientation....
For example: ALL ppl are required a certain dress code REGARDLESS of the above criteria, therefore there is no "discrimination"
As for all the ppl screaming about discrimination of blacks etc, the buses, restaurants, blah blah blah, the actions of the civil rights movement have (in most cases) solved that problem. I mean it was within most of our lifetime's that it occured, but the law has already handled that so it's a moot point.
There are many definitions of B&B's but this was a PUBLIC BUSINESS so the gay couple was completely in the right | |
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Posted: 7/25/2012 9:04:01 AM |
The point still stands though ... while a customer may choose where to spend his or her money , a business can't refuse service based on arbitrary criteria .
Uh, yes they can. A business owned by a private individual can refuse service to anyone for any reason they choose and even more-so, they don't have to tell you the reason, they can just tell you to leave. Just like I can stand in my yard and tell people not to walk in the grass, etc you get the idea. Arbitrary criteria is an opinion, one that I share but the facts remain. Businesses reserve the right to refuse service to anyone. Whether it is morally right or wrong is an entirely different conversation. | |
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Posted: 7/25/2012 9:20:00 AM | #148
It's different because they are not discriminating against anyone's race, religion, gender or sexual orientation....
Well, they're still discriminating against slobs and nudists, aren't they? Some discrimination is all right, but other discrimination is not, is that about it? I think you are discriminating in the people you would let businesses discriminate against.
#147
What difference does it make for you whether a law is 'right' or 'wrong' when the cop is arresting you for breaking it ?
All the difference in the world. If a law is invalid, it's not binding. No one gets to break laws just because he doesn't like them, but if you're breaking a law to test its constitutionality, you can't legally be punished for it.
You can challenge the law if you like but you could also have done that without breaking it .
It's much harder, at least in the U.S., to challenge the constitutionality of a law unless you've first broken it and been fined, arrested, etc.
<
So , arguing about the ethical or constitutional basis for any law is beside the point . . . It's really quite abstract from a practical perspective .
It is? Then why have people here or there countless times worked to have a law amended or repealed? And were all those thousands of cases where someone has challenged the constitutionality of a law and gotten a court to invalidate it just a waste of time? I guess you think those people were impractical--just fooling around with abstract stuff that doesn't matter.
Why shouldn't you be allowed to buy a cellphone because of your skin colour ? Why shouldn't you be served at a restaurant because you don't have a card to prove you're a member of the Democratic party ? Why wouldn't you be allowed to rent or watch a movie in a cinema because you're male ?
I don't claim to know about Canada. But I think it's clear that in the U.S. there's no federal power to prohibit private persons from discriminating in either those or other ways. If most people in a state think there are adequate reasons for laws against those kinds of discrimination, they can make them. With some exceptions, I don't think there are adequate reasons.
I don't think you've really given this the proper amount of thought because you don't seem to understand how it would affect you
In my own poor way, I've given it quite a lot of thought. I've even read a little about history (I like the books with lots of pictures.) And I don't think it's at all obvious that people couldn't get what they needed. It's exactly because turning away potential customers arbitrarily is, as you say, a "monumentally stupid business model" that I expect private persons who did that usually could not compete for long.
If it were proven that competition was not enough--that discrimination of some kind was still interfering a lot with private business transactions--I would favor expanding legal protections. But I would rely first on financial self-interest to overcome personal animosities, rather than use government to outlaw discrimination. | |
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| who has more rights?
Posted: 7/25/2012 9:35:27 AM |
But I would rely first on financial self-interest to overcome personal animosities, rather than use government to outlaw discrimination.
So then, you agree with, say, the Civil Rights Act of '64...? I'm pretty sure "economic pressures" weren't doing anything to alleviate the issues it addressed (considering those "economic pressures" had been in play for close to 100 yrs without effect)... | |
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Posted: 7/25/2012 6:10:43 PM |
The point still stands though ... while a customer may choose where to spend his or her money , a business can't refuse service based on arbitrary criteria . Uh, yes they can. A business owned by a private individual can refuse service to anyone for any reason they choose and even more-so, they don't have to tell you the reason, they can just tell you to leave. Just like I can stand in my yard and tell people not to walk in the grass, etc you get the idea. Arbitrary criteria is an opinion, one that I share but the facts remain. Businesses reserve the right to refuse service to anyone. Whether it is morally right or wrong is an entirely different conversation.
If that was true we wouldn't be having this conversation . | |
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Posted: 7/25/2012 9:14:55 PM |
Well, they're still discriminating against slobs and nudists, aren't they? Some discrimination is all right, but other discrimination is not, is that about it?
Good grief! To answer your question...no. Discrimination is never all right but what you're referring to is not discrimination. Clothing hardly represents someone's personal characteristics. Burka's, hijabs, kirpans [cerimonial daggers] etc. are sometimes included as personal characteristics but just as often they are not. Most definitions of discrimination include the wording "personal characteristics" "defining characteristic" "identifiable characteristic". Clothing is none of those things. | |
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