I'm getting ready for a conference in a couple of weeks on the fiftieth anniversary of the Civil Rights Act of 1964. The University of Alabama is hosting it (the program is here). This'll be my first time back in Tuscaloosa in many years, so I'm excited to see some friends and also to hear the other papers. My talk deals with the Act and the conflict over property rights. I start with the years leading into the Act and how the Supreme Court was moving towards an expansive understanding of the state action doctrine (obviously Marsh v. Alabama and Shelley v. Kraemer fit here, as does Thornhill v. Alabama -- a case I'm more inclined to speak about than otherwise since I'll be in the county where that case arose). That part of the story is pretty traditional.
My primary interest is in the property-rights based opposition to section two of the Act. That is, I'm interested in the people who opposed the Act's outlawing of racial discrimination in public accommodations because of their belief that the right of the property owners included the right to exclude. There's a rich and robust defense of property in the debates, which I've been spending a lot of time reading of late.
And I've also been reading pamphlets opposing the Act, especially several by the Virginia Commission on Constitutional Government. The Commission was established I think around 1956 as part of the state's opposition to integration. There were several key leaders of the Commission, including Pulitzer-Prize winning lawyer David J. Mays and James Kilpatrick of the Richmond News Leader. Kilpatrick's 1962 book The Southern Case for School Desgregation also figures prominently in my paper. How do you like the cover of one of the Virginia Commission's pamphlets, Civil Rights and Federal Powers? The Constitution in a vise grip. Quite an image, isn't it? And the content fits with the cover; it is a robust defense of property rights. "Granted, that 'human rights' are involved," the pamphlet concedes, but so are "age-old property rights." This built on an earlier pamphlet, Civil Rights and Civil Wrongs.
After the Act was passed (and the Supreme Court had decided Bell v. Maryland) the Commission had another pamphlet, The Right Not To Listen, attacking the principle of protesters on private property -- this time through the line that the property owner was a coerced audience.
Update: James Grmmelmann pointed out that Alfred Avins wrote "The Right Not to Listen." At some point down the road I want to talk some more about Avins' writing against the Act.
Here is my talk the history of the Civil Rights Act of 1964 and its importance as a fulcrum for progressive property at the Alabama Civil Rights--Civil Liberties Law Review's conference.
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