John Barrios

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Private property rights.

Should a private property owner (specifically commercial in this debate) be able to decide who can or cannot enter his/her land? In America, the Civil Rights Act of 1964 federally prohibited segregation or discrimination based on sex, gender, ethnicity, etc.. But is it right that those who rightfully own land are forced to allow everyone to use it? Keep in mind that this is not a debate over racism or sexism, it is merely an inquiry on the rights a property owner has.

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    Jul 3 2011: The judicial history of this topic is interesting and offers good counterpoint to libertarian approaches. The main principle is "State Action" – the state is prohibited from discriminating based on race. State action makes its way into private affairs because of the ubiquitous use of the state to enforce the law and provide public services. The main precedent comes from the 1948 Supreme Court case Shelley v. Kraemer, where the state was called to enforce racially restrictive property covenants. Both buyer and seller were willing, but a third party in the neighborhood sued on the basis of the covenants. The court agreed that we are free to enter any contracts we like, but when we call upon the state to enforce them we are asking the state to make "available to such individuals the full coercive power of government to deny to petitioners, on the grounds of race or color, the enjoyment of property rights."

    It didn't take long for this precedent to find other outlets and the courts realized that it is almost impossible to do business without some state action, making it is almost impossible to enforce racial discrimination in business. The state is involved in almost all business—zoning, public sewers, licensing, etc.

    Lombard v. Louisiana is also good reading: http://supreme.justia.com/us/373/267/case.html:

    "The principle that a man's home is his castle is basic to our system of jurisprudence.
    But a restaurant, like the other departments of this retail store where Negroes were served, though private property within the protection of the Fifth Amendment, has no aura of constitutionally protected privacy about it. Access by the public is the very reason for its existence."

    "…There is no constitutional way, as I see it, in which a State can license and supervise a business serving the public and endow it with the authority to manage that business on the basis of apartheid, which is foreign to our Constitution."— Justic Douglas, concurring opinion
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      Jul 3 2011: Thank you so much Mark. I studied voraciously about Shelley v. Kraemer. I just don't like the degree to which the States have intervened in matters of business outside of government. I am a Constitutionalist (as you can probably tell).Your second paragraph totally opened my eyes and now I realize that the real issue is government involvement. As long as the State's are involved in enforcing equality in governmental matters, there is no way that they could stray from their stance if called upon in the courts.
      You make a very great point. Thank you again for explaining and allowing me to see the big picture of it all.
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      G C

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      Jul 9 2011: Would the interpretation of Shelley v. Kraemer be applicable to employment discrimination as well? To follow the pattern of thought of the original question; why shouldn't employers be allowed to discriminate when they hire people. They're only hurting themselves if they don't take the best person available for the job. An employer would not be calling upon the state to enforce their decision not to hire someone based on race, creed, etcetera. If the potential employee is denied the job and they refuse to leave the property authorities would not be removing them because of their race or creed rather because they are not an employee.

      Note to onlookers: I'm not saying I agree with employment discrimination.
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    Jul 10 2011: People shouldn't own. They should just use. Rights should be a given.
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    Jul 8 2011: No one owns anything. It assumes we are separate. It is actually a highly alienating concept. You can sense that you own nothing and that you own everything in the nature of how it feels to say — experience time...
    As long as needs are turned into wants and corporatism makes scarce the basic resources for our needs we will have the conception of private ownership which will invariably limit our ability to become more altruistic and private property increases will raise private emotions — hence, enforcing our alienation to the outside world which is just as much us as our own bodies. I think some basic reviewing of how natural eco-systems and developmental psychology functions work can help to bring about this supposedly assumed conflict between freedom and common flourishing into clearer focus.
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    Jul 8 2011: But if the state wants to evict you from your land to build a railroad, it has the right to do so with but also without your consent, doesn't it?
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    Jul 8 2011: Long ago I heard a lecture on this. To my amazement it seems nobody on the planet (except Americans) has real property rights over land.

    In the U.K. for example, and in all "commonwealth" nations, the land ultimately belongs to the Queen/King of England. The same for mainland Europeans. The state owns the land.

    We simply have superficial property rights that come down to usufruct, and that can, at all times, be taken away from us.

    But this doesn't your answer.
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      Jul 8 2011: that's certainly not true in hungary in that way. you are the true and only owner of your land. however, you are right in one aspect: things in the ground (ores, oil, etc) are owned by the state, and not the land owner.
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    Jul 3 2011: I apologize for replying to everyone's comments but I feel responsible as the curator of this debate board to debate! Thank you all for your input, I really do enjoy learning the other side of it all (even if I sound stubborn or defensive). I'm new to TED and I'm just so happy to have a tool where people can put their opinions on the table and discuss them with others in a civilized manner.
  • Jul 3 2011: what if a property owner happens to control a significant proportion of stores in any area or country and he excludes all hispanics from buying things there? other stores could capitalize on your disadvantage of being hispanic by charging you a higher price because they know you couldn't go anywhere else. that is something else you'd have to consider, since its their property, then they could charge more for one set of customers than another. so you can have exclusive property rights and limit these scenerios or have a minor restriction and eliminate that.

    think about the implications of blacks being banned from stores in this place, whites from this place, asians from this place...you would also be creating hostility from whoever is banned toward whoever is banning them. would violent crime increase? would theft increase? maybe you'd even create a race war
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      Jul 3 2011: Who knows, it may even give people that extra push to start their own business. It is true that people could be taken advantage of but with personal liberty comes adaptation and self-reliance-- two things America has crushed with an increasingly powerful government presence. Also, you have to keep in mind that the vast majority of companies would not implement segregated prices or stores because well, most people aren't racist. Also, it would be a PR nightmare. I'm not saying it's a good idea just that it's logical to allow a property owner to distinguish who can/can't be on their land. Once again, you make some very very good points Gary. Thank you for allowing me to see the other side because what you say definitely makes sense as well.
      • Jul 3 2011: just because you don't think most people are racist and it would be a PR nightmare doesn't mean it wouldn't happen anyways. the media has a way of shifting opinions if they feel it's in their best interest to blame something on one group and could then limit their freedom. i could definitely see not being able to buy anything in utah unless you were mormon.

        For commercial purposes it makes no sense to be able to discriminate who and who can't come on their land to buy things, but they can certainly restrict who they want at their residence. the point i was making before was who knows what the implications of such a policy could be. it would have far reaching effects beyond just not allowing people to buy something at a particular place.
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          Jul 3 2011: I'm not saying it wouldn't happen. It most definitely would. It would make no sense to anyone but the owner. That's the only important part. Of course they can because a violation on a residential land is called trespassing. Why not on commercial land as well? After all it is still land and one still owns it.
          The point you made before is very good. The implications for those who practice segregation as well the segregated could definitely get out of hand but it would be up to law enforcement and the government to defend personal liberties with some sort of punishment.
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      Jul 3 2011: what if? it is still his property. nobody else can enter without permission. why would any hispanics or anyone else go there if they are not welcome?
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    Jul 3 2011: thought experiment. i have a piece of land, and i don't let anyone step on it. so far, we are OK. they i allow exactly one people in. than another. one by one, i let every white straight christian man on my land, but not anyone else. at which point my behavior becomes illegal or immoral?
  • Jul 3 2011: If they are allowed to prohibit people based on a quality, then you run into the problems that caused the Civil Rights Act to be passed in the first place. If it's a commercial property that we're talking about, then why shouldn't everyone be allowed to use it, unless they are infringing on the rights of others? Since it's commercial property, then he'd be making a profit on those using that land, which is the purpose for establishing that commercial enterprise in the first place. Is this in the direction you were looking for?
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      Jul 3 2011: That's exactly my point. Shouldn't the property owner have the right to exclude whomever he/she wishes? He/she does own the land after all. Because he is federally mandated to allow anyone onto his business, his rights as a property owner are being infringed upon. Who he decides to let on or off his land is beyond the point. If a land-owner refuses to allow others onto his land then he can only be hurting himself profit-wise but it should be up to him nevertheless. Forgive me if this sounds over-the-top it's just difficult to argue for something so controversial. Me being a libertarian, I believe strongly in the rights of property owners.Thank you for your answer though. You make some good points.