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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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