Saturday, December 12, 2015

Civil Rights and Interstate Commerce

Originally Written on August 23rd, 2015
Edited and Expanded between December 7th and 12th, 2015

      In September 2012, I called in to Sam Seder's show “The Majority Report”, a liberal talk radio broadcast. I was calling to take Seder up on his invitation for libertarians to debate him. Seder and I discussed taxation, private militaries, and public utilities such as phone and internet. The video of the conversation was later posted on YouTube as “Libertarian Oblivious to 'Who Built That'” (
      Seder described what I wanted as “feudalism”, and told me that what I want sounded more like something out of the show Game of Thrones than something in the real world. I didn't know what Game of Thrones was at the time, but after having seen the show, I can say now that I would rather live under “feudalism” - if that is what the show depicts – than the system that we have now (which, arguably, is a form of feudalism).
      In the aftermath of the shooting in Charleston, South Carolina in August 2015, I planned on calling Seder's show in order to discuss civil rights, and address a conversation between Seder and a person who called his show in May 2014. That conversation involved discussions about currency, principles, property rights, and civil rights legislation. It was posted to YouTube as “Another Episode of Libertarians Gone Crazy! With Sam Seder” ( and “Libertarian Caller: I Oppose the Civil Rights Act... on Principle” (
      The following is an edited and expanded version of what I planned to discuss with Seder.

      In the aftermath of the shooting in Charleston, South Carolina, this is no time to stoke the flames of racial hatred. However, I oppose Title II of the Civil Rights Act of 1964. For those who don't know, that was the provision of the Civil Rights Act that prohibited discrimination and segregation in “places of public accommodation”. Unfortunately, nowhere in the legislation were the terms “public” nor “private” defined, nor differentiated.
      The man who called in May 2014 said that he was opposed to that same provision, asserting that private businesses are, more or less, the same as regular people's private property, for example, their homes. He added that the freedom of association protects our right to keep people out of our homes and off of our business properties.
      I argue that, for the most part, this should stand regardless of whether such businesses supposedly serve “the public”, which is to say, individual members of the public who have the right to choose whether to attempt to become customers or patrons of such businesses. I and other opponents of Title II contend that the freedom of association includes the freedom from association; the right to be left alone.

      The Fifth Amendment protects our right to be free from unjust takings; it states that “no person shall be deprived of life, liberty, or property without due process.” Essentially, it states that none of our property, nor any of its use-value, shall be taken away, unless and until we are charged with, and convicted of, a crime. The use-value of a business property includes the “right to refuse service to anyone”, and as the man who called in to the Majority Report in May 2014 pointed out, signs bearing those words are hanging on the walls of businesses all over the country.
      Therefore, Title II of the Civil Rights Act of 1964 presents an encroachment upon the Fifth Amendment, but it also – through its omission of definitions and distinctions – blurs the line between what is public property and what is private property. Additionally, and most importantly, Title II presents a problem when it comes to the interstate Commerce Clause of the U.S. Constitution, which gives the federal government the authority “to regulate commerce … among the several states”.

      Suppose that I live in Montana, and I make and sell firearms. Suppose that the bullets come from one part of the state, and the shells come from another part of the state, and I manufacture the scopes in a factory that I own on my own private property. Since I only conduct commerce within the state of Montana, I am engaged in intrastate, or in-state, commerce, but not in interstate commerce. So only Montana state statutes and local ordinances apply to me, because, under the traditional interpretation of the Commerce Clause, this commercial activity would be none of the federal government's business.
      Assume that I own a restaurant, and that it only has one location, or that it has several locations, but they are all located in the same state. As with gun manufacturing, only state and local laws get to say whether I have the right to refuse service to anyone. It is only when I am engaged in interstate commerce – commercial activity that crosses state borders – that the federal government shall have constitutional authority to get involved.
      Returning to the topic of gun manufacturing in Montana, the state statute Montana Firearms Freedoms Act, according to Wikipedia, “sought to exempt firearms manufactured in Montana from federal regulation under the interstate commerce and supremacy clauses” of the Constitution. The law was challenged, and the plaintiffs in the case wanted gun manufacturers to comply with federal laws, but their suit was dismissed by the U.S. District Court in 2010 “for lack of subject matter jurisdiction and failure to state a claim”. However, the United States Court of Appeals for the Ninth Circuit ruled that the plaintiffs in the case did have standing, but still dismissed the case due to the plaintiffs' failure to state a claim, concluding that the “creation and circulation of such firearms could reasonably be expected to impact the market for firearms nationally”.

      It is this “reasonable expectation” of intrastate commerce having an impact on the national market, which was the gist of the Civil Rights Act of 1964's standard – and the standard set by a subsequent lawsuit regarding the act - regarding when federal intervention is appropriate. In the case of Heart of Atlanta Motel, Inc. v. United States, the U.S. Supreme Court found that Heart of Atlanta Motel and Pickrick restaurant – the businesses owned by plaintiffs Moreton Rolleston and Georgia Governor Lester Maddox, respectively - substantially affected interstate commerce.
      The opinion of the court majority in that case was that, since the majority of Heart of Atlanta's clientele came from out-of-state, and since it was strategically located near two interstate highways and two state highways, the business clearly affected interstate commerce, and so, the federal government had the authority to intervene in order to regulate that commerce in a way that stopped or prevented the discrimination and segregation which was occurring there.
      The effect of the court's decision in Heart of Atlanta was that substantial effect on interstate commerce rests on the opinion of the courts, regardless of the fact that the hotel and restaurant had the freedom to choose to restrict their clientele to people from within the state, and regardless of the fact that those businesses had the freedom to restrict their other commercial activities aside from their service of clientele (i.e., the sourcing of their raw materials) to within the state.

      Back to Montana. Say I own a restaurant in Montana, and I want to expand my business. However, there aren't many people in Montana, so in order to get more customers, I plan to open a new location in a neighboring state; suppose it's Idaho. I might open up that new franchise in Idaho, and post a sign on the wall that reads “we reserve the right to refuse service to anyone”, however, the federal government would have the authority to intervene in order to stop me.
      This is because my restaurant would operate in two states; therefore, I'd be incontrovertibly involved in, and substantially affecting interstate commerce. Furthermore, I'd be actively discriminating against people who have the freedom to travel, and the freedom to acquire property through purchasing food, and other possessions (supposing that the business is a gas station or convenience store), and renting rooms (supposing that the business is a hotel or motel). But, of course, the freedom to buy and sell is conditional upon the permission of the other seller or buyer whom is party to the transaction.
      To put things rather bluntly, my interpretation of the interstate Commerce Clause does not prohibit black people from eating chicken and waffles. Waffle House has branches in twenty-five states, so clearly, it is involved in interstate commerce, which means that the commerce in which it is engaged is subject to regulation by the federal government. This stands even under the interpretation of the word “regulate” which holds the word to mean “keep regular”, i.e., free from undue inhibitions, including the kind of inhibitions imposed through keeping minorities off of the premises.

      Now, suppose that Barry Goldwater, who criticized the Civil Rights Act of 1964 for Title II and Title VII (the title which prohibits discrimination in employment), had defeated Lyndon B. Johnson to become president in 1964. Or simply suppose that Title II had been removed, amended, or clarified, to fit the Commerce Clause's original purpose (i.e., to keep the federal government out of the states' internal business affairs, and to prevent states from passing laws to favor their own commerce over that of other states), or suppose that the Supreme Court had ruled in favor of the plaintiffs in Heart of Atlanta, to find portions or the whole of the 1964 C.R.A. unconstitutional.
      Also, suppose that I own a convenience store in Indiana, near the border with Illinois. Suppose that I segregate or discriminate, that I refuse to allow black people to become patrons and/or employees. Suppose I segregate and discriminate against atheists, or communists. Suppose the target of my discrimination is not a minority, suppose I want to keep Christian gun owners out of my store. Suppose I don't want police officers, or veterans, or British royalty, or the Pope, or Rahm Emanuel, coming in, taking my snacks, and trying to draft me into their army.
      Suppose I don't want to let federal agents onto my property, because they're trying to ensure that I am compliant with the Real I.D. Act.; trying to force me to make sure that my employees are in the country legally, and trying to make me card undocumented workers for trying to buy a six-pack of beer after a hard shift of day-labor. Say I don't care whether they're here legally, and they and I are both just trying to pay our bills and get money to our families.
      Say I'm this business owner in Indiana. Everybody hates Indiana, right? They sure do! (Note: I choose Indiana because liberals recently considered boycotting the state over its opposition to gay marriage.) I own this gas station, or convenience store. Say I don't want to allow Democrats inside, because I think they're lazy and shiftless.
      Anyway, long story short, say I want to open up another store and start expanding across the nearby border into Illinois, and I want to retain my legal right to discriminate against anyone, for any reason, without being obligated to give a reason. Here's where things get absurd.

      Then you would see half of the country getting up in arms against me – not because I'm discriminating – but in order to demand that the federal government allow me to expand into Illinois. The initial left-liberal reaction to this would be something like “Why do you want this racist business owner to expand? So he can discriminate in Illinois, in addition to Indiana!?”
      And those who support my expansion would respond, “No, we want him to expand into Illinois so that his business would be unquestionably engaged in interstate commerce, putting the business under federal jurisdiction, enabling the federal government to regulate the business, in order to stop the discrimination or segregation!”
      Then, business owners who want to segregate and/or discriminate would be faced with a difficult choice: keep their business in one state, risking that it stay small, but retain their rights to discriminate, or expand their business into other states, in order to expand their market reaches, but, in so doing, lose their right to discriminate.
      Then, business owners might finally capitulate to what the federal government intended to accomplish in crafting Title II; they might simply reason that they can expand their businesses by resolving to stop segregating and/or discriminating – that is, to agree to serve anyone and everyone who comes onto their property with the intent of patronizing their businesses – instead of trying to grow their clientele by expanding into other states, and having to comply with additional federal regulations in the process.

      Finally, suppose that the U.S. Supreme Court had found Title II, or the entire Civil Rights Act of 1964, unconstitutional. Then, it would be up to each state, and each community, whether to allow discrimination and segregation on private commercial property. Then, it would be clearly and widely known which businesses, and which state and local governments, allow or support discrimination and segregation.
      In such a situation, people would be free to boycott such businesses - depriving them of the money they would earn through transactions – and also free to boycott, and stay clear of, entire states and communities (however, they would not be able to boycott the federal government).
      But now, the opposite is the case; business owners who want to discriminate and segregate are required to serve anyone and everyone who comes onto their property. So now, people can freely wander onto commercial properties, and become their patrons, without having any clue as to whether its employees and/or owners are dangerous racists, sexists, xenophobes, or political extremists, who may want to see those patrons fall victim of violence.
      Even if we could tell which business owners are racists (et cetera) and which are not, and wanted to boycott them, we would still have to fight the Internal Revenue Service and the state and local tax agencies, and the various departments and chambers of commerce, in order to stop our tax money from being spent in order to subsidize, and bail-out, and grant limited liability and intellectual property protections to, such discriminatory businesses.

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