Thursday, June 2, 2011

Title II of the Civil Rights Act of 1964

Here are a few reasons why I oppose Title II of the Civil Rights Act of 1964.

First of all, it repeatedly uses the words "private" and “public” without defining them. I feel that the title wrongfully suggests that all businesses which serve the public are “public accommodations”.

Another problem is that the title has been used to prohibit discrimination against and segregation of customers by businesses not actually engaging in interstate commerce, but by businesses deemed by judges to be engaging in interstate commerce simply due to the fact of their locations.

Private businesses do not accommodate the public. When you decide to enter a business establishment (with the duly-given consent of its employees), you cease to be a member of the public and become party to a mutual private agreement; you agree to follow that business's rules, or else face the consequences.

If a business owner decides that it is safest for himself and for his patrons to keep patrons segregated by race – or by whatever other factor (as long as his establishment has no branches in other states, in which case he would in fact be engaged in interstate commerce, and therefore within federal jurisdiction) – that business owner should be free to make and enforce that decision, and through the employment of security guards and / or bouncers if he deems it necessary.

Title II of the Civil Rights Act of 1964 was challenged in the case Heart of Atlanta v. U.S.. The plaintiffs argued that the 13th Amendment prohibition of involuntary servitude (except as a punishment sentenced upon conviction of a crime) exempted private business owners from involuntarily serving patrons with whom they did not wish to associate. The U.S. Supreme Court ruled against Heart of Atlanta (a motel owned by Georgia governor Lester Maddox) 8-to-0.

To those whom would argue that the plaintiffs did not rightfully invoke the term “involuntary servitude” because “involuntary servitude” means slavery, and the plaintiffs were trying to use a law prohibiting slavery in order to offend and continue to harm blacks, I would argue that the 13th Amendment does not conflate slavery with involuntary servitude.

The amendment reads, “slavery or involuntary servitude”, implying that there is a legal distinction between the two terms. For example, if a person were duly convicted of a crime and ordered to act in a certain way as punishment for that crime, such a punishment would not be termed “slavery” by the law, but rather “involuntary servitude”, which may be prescribed as a punishment for breaking the law.

To those whom would argue that Title II of the Civil Rights Act of 1964 should be accepted as merely one of the ten titles of that bill and as a single point within the greater Civil Rights Movement which was necessary to end institutional discrimination including Jim Crow laws, I would argue the following.

Discrimination is only “institutional” when it is carried out in institutions which are actually public; deprivation of the right to vote, requirements such as literacy tests or poll taxes in order to vote, and intimidation of voters are never acceptable because government is a public institution, and therefore it should not discriminate.

Jim Crow laws were local and state laws which existed due to intimidation of business owners and of local and state boards of commerce by racist individuals. Granted that Plessy v. Ferguson did little if anything to carry out its own “separate but equal” doctrine, segregation and discrimination do not always cause detriment to minorities, but in truth may often have the effect of protecting minorities from harm, while preserving private property rights, in addition to the freedom of association and contract.

If business owners have the right to hire security guards and bouncers to keep such individuals off of their property and prevent them from using intimidating tactics to affect their ends, then such business owners ought to have the right to instruct those security guards and bouncers to keep individuals whom they feel may be inclined to use intimidation to demand service – and / or individuals whom they feel are likely to become the victim of intimidation by other patrons – off of their property, or off of certain areas on their property.

To those whom would argue that the Commerce Clause of the Constitution (which gave Congress the power to regulate commerce among the several states) was only intended to “keep regular” trade between the states – i.e., to prevent trade wars, tariffs, and unfair competition between them – and that the Commerce Clause does not apply to Title II of the Civil Rights Act of 1964, meaning that the federal government has no authority to prohibit discrimination or segregation in even true interstate commerce, I would argue the following.

Allowing private businesses which engage in interstate commerce (i.e., which maintain franchises located in more than one state) to permit their franchises to have different rules in different states would have the effect of causing commerce to become irregular. Businesses would be able to tailor the practices of groups of their franchises existing within given states to the legal, economic, social, and racial demographics of each area.

This would create a climate in which businesses engaging in interstate commerce would be free to exploit regional demographics and state laws in ways that would cause disproportional patronage of franchises in certain states, having a net effect of causing the governments of states to change their own laws in order to cater to the demands of central management as it pertains to groups of franchises existing within the borders of the given states.

Federal prohibition of discrimination and segregation in businesses which are not actually involved in interstate commerce absolves the people of individual consumer responsibility. We now find ourselves in a situation in which we cannot know which business owners are racist because they are not free to be racist, which means that we cannot know which business owners deserve to be deprived of patronage and wealth.

The situation in which we now find ourselves further absolves consumer-interest and consumer-advocacy groups of responsibility. If we do not and cannot know which business owners within our states are racist and are thus deserving of being deprived of patronage and wealth, then there is little place for boycotts. 

Consumers tend to be less aware of which business owners around them have such racist dispositions, and so, there tends to be no coherent mechanism for spreading awareness among and uniting consumers against such business owners and practices.

Finally, to those whom would argue that consumer advocacy, interest, and awareness would be difficult or impossible with regards to business engaging in interstate commerce and potentially on the national or even international level, I would argue that, significantly more often than not, the owners of such businesses would be sufficiently well-known among the public that it could be determined whether such owners were personally reputable and managerially trustworthy enough to merit either continued patronage or boycotts.

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