[Craig Disher]

Shivas,
You're right that the Constitution, especially the first 10 amendments, are very specific in what rights they protect. But those fundamental rights have been gradually expanded (a "penumbra" surrounding those rights) in a way that courts believe to be consistent with what the original rights were stated to be. Without the "penumbra", there would probably be, for example,  no "right" to abortion, no private semi-automatic arsenals, or no freedom to assemble to do much else than discuss political grievances and petition the government. To the extent that they've been expanded by the federal courts - or by congress, the federal government does IMO have the right to intervene to protect the rights falling within the penumbra of the constitution.

I don't know the precedents but it must be that clubs like ANGC have been determined to fall outside that penumbra - but there's nothing in the constitution to prevent a court from putting them inside it.

I'm not so sure about the separation of church and state being a fabrication. Forbidding the government from passing laws with respect to the establishment of a religion or forbidding religious practices is pretty explicit - and can create a very large penumbra.

[Bob_Huntley]

see the thread on Access.

[TEPaul]

Shivas:

I'd say your interpretation of "a" Constitutional right of "free association" in this country is sort of going in the right direction but somewhat suspect in both structure and process.

I don't have time to go into it all either, right now but I'd like to later. Craig Disher is correct that the First Amendment is anything but clear about specifically mentioning an American right of freedom of association the way we're speaking of it here in a private golf club context.

But the point is it does not have to be specifically worded in the Constitution or the Bill of Rights to be granted to the American people either implicitly or explicitly---not yet anyway.

Why is that? Basically, because it's completely obvious that our US Constitution never attempted to list all the specific "rights" of Americans (if they concsiously attempted to do such a thing then how can one actually read the US Constitution and Bill of Rights in about a half hour? ). All the US Constitution did or attemtped to do is "reserve" certain rights for the US Government. Whatever they did not "reserve" as a right of the US Governement (spelled out in the US Consitution and it's processes) they left to the States. And whatever was not "reserved" as a right by any State was left as a "right" to the American people by the US Constitution and Bill of Rights.

How did they come to define or explain that? By the IXth and Xth Amendments to the US Constitution in the Bill of Rights (the first ten amendments!). Why was the Bill of Rights (first ten amendements) included? Because it was felt that the "rights" of the people were not properly protected or addressed by the Constitution itself---to such an extent that the US Constitution would unlikely be ratified (without the inclusion of the Bill of Rights).

So then how would one apply or even imply this idea of an American "right" of "freedom of association" in the context of the way we're speaking about it on this thread?

In concept it's fairly simply although the practice and process of actually interpreting and defining it isn't simple---which does not mean it cannot be done and to find out how one needs only to understand how the US Government, the state governments, local governments and the people all have a mechanism that works together.

The fact is the "right" of "freedom of association" does rest with the people simply because it's granted to them by the concept of "unenumerated rights" of the IXth Amendment and the "Powers Reserved for the States or People" of the Xth Amendment (and because it has not yet been taken away from them). This essentially means if anything that was not "reserved" by the US, State or Local government (or subsequently enacted as a law) it basically rests with "The People" as an "Unenumerated RIGHT". Theoretically or even in fact this means any right under the sun not otherwise "reserved" from them (by US, state and local government or their laws) rests with the people and the Xth Amendment supports and clarifies that.

Also the fact that numerous state laws, rules and regulations and statutes already exist and countenance and address this implied American right of "freedom of association" in a club context evidenced in that article JohnV posted that lists the various legal interpretations of that "right" obviously makes that "right" a reality in fact---at least for now.

How would that right of "freedom of association" be more specifically defined even if it now is only implied? That's simple---ultimately it would be defined by the US Supreme Court if a case was brought for whatever reason that asked that it be defined. That's assuming the US Supreme Court would take any case but eventually they probably will (such as a case like a potential "Burk vs ANGC").

And Shivas you are not correct that the US Government "can't" have some right. The US Government through their mechanism of co-equal branches of "Administration" (Excecutive Branch) the "Legislature" (US Congress and US Senate) and the "Judicial" Branch (US Supreme Court) are the "Supreme Law" of the Land through the US Constitution) and they have the right to do whatever they want---within one last check. The Supreme Court is the most interesting and curious really because they do have the Constitutional power to strike down any legislative act or law as unconstitutional and any administrative action for that matter---and that US Supreme Court power includes state and local laws and administrative acts.

And what is that last check? It's the right of "The People" to VOTE and throw all the bastards and idiots out if they really feel like it and feel strongly enough about it---and ultimately that surely could include all politicians on any level and judges too even including eventually the US Supreme Court if they felt strongly enough. The mechanisms may be cumbersome but point is they are every bit THERE----In the US Constitution and the Bill of Rights!

So how would this right of "freedom of association" which is obviously implied (simply because it is somewhat "unenumerated" as defined by the IXth Amendment) be actually defined someday? The US Supreme Court probably would do it, at least they are the ultimate entity to do it----they would either define it as an actual worded right probably looking for logic and justification to the somewhat hazy wording of the 1st Amendment and supported by the IXth and Xth Amendments, or else they may defiine that it doesn't exist in the context of some case brought before it. If someone is discontent over the outcome they do have the mechanism to potentially take anything all the way to the US Supreme Court for clarification and definition.

It's no fabrication Shivas, even if it's not specifically defined now. The concept of "unenumerated rights to the people" makes it so unless or until it is taken away probably ultimately by the US Supreme Court. That day has not come---not yet anyway.

(at least that's my opinion. My source? About a 45 year old school text book!   )

(Sorry about all the typos--I corrected most)

The thing that probably upsets most in these things or even on here in the context of this idea of a right of "freedom of association" as it applies to a private golf club is ultimately they may not get their OWN way. To get their OWN way in the face of every other conceivable obstacle they could get their way only if they generated a consensus of opinion (in the case of the American democratic philosophy that would be a "simple majority"---eg 51%!).  

[TEPaul]

Probably the cleanest way to resolve this "right" of "freedom of association" in this country would be to run for President of the United States of America on that platform.

Rich Goodale could run for President on the platform that even an implied right of freedom of association that allows any kind of discrimination whatsoever at a private golf club is socially unacceptable behavior in America today and no private golf club should have a thing to say about who could join or play any private club's course and that that should be enacted into law and hopefully not struck down by the US Supreme Court as unconstitutional.

I would run against him on an opposing platform that stated that the American "right" of "freedom of association" should be specifically defined in the context of a private golf club allowing members of "private status" clubs to accept whom they chose and reject those they did not choose to have as members and that following that they could choose for themselves who played their course and who didn't and that that should be enacted into law or defined by the US Supreme Court.

[Mark_Rowlinson]

Believe it or not, this topic was raised entirely innocently.  I genuinely had not realised just what a can of worms it might open.  But a lot of this discussion is about the America and UK of 2005, in a way charting the political and social developments of recent years, the interpretaton of the law sometimes dictating circumstances not necessarily to the benefit of those it was intended to protect.

What were the factors in America and UK in roughly 1900-1914 which made them take such different approaches?  Visiting golfers will have been exceedingly few in number in those years, so they are probably irrelevant to the discussion of that time, though very relevant to today.

[TEPaul]

If Rich Goodale won and managed to get enacted some law or US Supreme Court ruling removing the American right of "freedom of association" from the American people in the context of the "private status" golf club my next move would be to take the revolution to the people and the previously "private status" golf clubs all over America and show them how to circle the wagons, load up on the guns and ammunition and shoot any riff-raff who got through their door and onto their course without being invited first.

 

[TEPaul]

"What were the factors in America and UK in roughly 1900-1914 which made them take such different approaches?"

Mark:

Look, don't go searching for too much in all this. If you're trying to figure out if Americans are inherently mean and nasty, inhospitable and unegalitarian people for some reason and Europeans are inherently civil, hospitable and egalitarian for some reason because of some sea-change in golf or otherwise between 1900 and 1914 you aren't going to find it because it's not there.  

It's deeper than that--goes much farther back too. It's just a matter of the way we evolved differently---the way we grew up differently, so to speak.

You folks over there are so much older, you've had a more solid foundation much longer, you had Kings, royalty, feudalism and in some cases the granting of common ground by the big muck-a-muck on the hill (on which golf courses evolved). Long ago the aristocracy through feudalism learned how to get along with the riff-raff and the riff-raff learned how to get along with the Lords and the Lordesses. They needed each other. A certain way of doing things evolved over generations.

While us over here in America, we made the precipitous move of giving up all that civility, security and such over there and we went to a place of constant danger---it was originally really wild and uncouth (we can discuss what the duration of "originally" means later ).

We grew up in a place where life-threatening danger was always right outside our door. That made us crave our privacy and security but we had to be rough and ready and tough to get it and insure it.

There were always bears and coyot and wolves and wild animals out there, and wild injuns always trying to get in our doors and scalp us and rape our women. And then the riff-raff showed up to take advantage of us too.

It was even tough to go into town for a fast toot---there were adventurers, low-life, unscrupulous promoters, card sharks and cheats and a type of woman in there who were so bad just thinking about them anymore creates ineffability.

It doesn't have anything to do with differences in innate hospitality or egalitarianism or anything like that. We as nations and people just grew up WAY DIFFERENT and it still shows!

We just can't have uninvited people come in the door of our private and secure golf clubs and just march on out to our first tees without being asked first. We can't trust these people---it ain't in our nature from way back. If they can get in uninvited all the way to the first tee of our private golf courses how can we know they might not try to scalp us, rape our women and sell our children into bondage?

The "right" of "freedom of association" must be defended over here at all costs, and if we have to pay through the nose to insure it---heh, that's cool---that's the American way too from way back before C.B's father was a twinkle in his grand-dad's eye!

[Jim_Kennedy]

Shivas,

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

The comma used between the words 'assemble" and  'and' in the above quote is called a 'serial' or 'oxford' comma. if you don't use this comma when a list is lengthy the last two items in the list will tend to melt together. Using it between all the items in a series, including the last two, avoids this problem. In the above quote it could easily be construed that the right to assemble and the right to petition are two independent clauses, if the framers practiced correct comma usage.

I would think they did.

[TEPaul]

JimK and Shivas:

Do you really think it makes any difference whether the First Amendement has an "and" or "or" or a comma in the right or wrong place?

The point is the "right" of "freedom of association" is a practice that's recognized now in both the states and by the US government and has been for as long as the country has been around and if something (like a "Burk vs ANGC" case) came up the legal latter to the US Supreme Court they're going to rule on it and they will just find what they find in the US Constitution and the Bill of Rights.

If you ask me, although there may be nothing particularly clear about it in the US Constitution and Bill of Rights, both Amendment IX and X make it very clear that it can be a right (because of the "unenumerated" rights to the people concept) unless or until some law (like the "anti-discrimination" law) that's deemed constitutional or a ruling by the US Supreme Court takes it out.

But my question is--if the US Supreme Court rules against the American right of "freedom of association" someday for private clubs and golf clubs, where will they draw the line of any American's "right" to "privacy" next----at the front doors of our homes?

[Craig Disher]

TEP -
I don't want to split hairs on this but I think your reading othe 9th and 10th amendments is a little overbroad. The enumerated rights cited in 9 refer to the government's rights mentioned in the constitution and that those rights can not be used to "deny or disparage" (whatever that means) those retained by the people. That doesn't appear to me to say that the people have all the rights not mentioned in the constitution.

If the people have all the "rights" not specifically reserved for the government, why can't I import a hallucinogen from Mexico if using it is a recognized part of my religion?

I found mention of two federal cases that bear directly on what we've been talking about:

In 1987 the Supreme Court unaminously ruled that the Jaycees and the Rotary International's discriminatory membership rules were illegal - because society's interest in equal treatment of men and women outweighed the club's right to define its own membership.

The second case is even more pertinent - in 1988 the court, using the 1987 decision as one of the precedents, ruled that private clubs (the case was in NY) with over 400 members could not discriminate if they were involved even indirectly in furthering trade. Here's a link to a summary of the  facts and the decision

http://jhunix.hcf.jhu.edu/~jbgrossm/newyorkclub.htm

The 400 number was arbitrarily set by the City of NY but could have been 300, 200 or 50 for that matter.

My point is that the right of association is not absolute. Our government has decided on numerous occasions that society's interests trump those of small groups of individuals if their activities have an effect on the society at large.

Following that logic, it's hard to see how a golf club, solely devoted to the golfing enjoyment of its members, could be subject to any regulations regarding its membership practices or access.  But who knows where that line would be drawn in a court case.

[Patrick_Mucci]

Craig Disher,

Since the decision on the case that you cited, the law in New York State, The Human Rights Law, was amended reducing the number from 400 to 100.  Article 15 provides the language.

It will probably continue to be reduced.

New York City's law remains at 400.
Title 8 provides the language

If you read both laws, it's clear that unaccompanied guests are hazardous to a private club's continued existance.

Paul Turner and Rich Goodale,

Please read both laws.
Then tell us what you think.

You may find them by searching:

New York City Public Accomodations Law

New York State Public Accomodations Law

As I said at the begining, the legal climate in the UK is different.

[TEPaul]

"TEP -
I don't want to split hairs on this but I think your reading othe 9th and 10th amendments is a little overbroad."

Craig:

Perhaps, I'm definitely not a Constitutional scholar. What I reported is from a 45-year-old textbook. I'm not sure I would be to quick to assume that it's all that likely that that book just dreamed up the heading interpretation it provided, though. If a textbook is going to go out to schools all over America the basic descriptions they use are probably going to be on fairly solid ground at least checked by constitutional scholars. The textbook heading over the actual text of the IXth Amendment reads,

'Amendment IX UNenumerated Rights of the People--'The Federal Government Excercises no Power over the Unlisted Rights of the People'----that is followed by the actual wording of Amendment IX---"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people".

You said;

"The enumerated rights cited in 9 refer to the government's rights mentioned in the constitution and that those rights can not be used to "deny or disparage" (whatever that means) those retained by the people. That doesn't appear to me to say that the people have all the rights not mentioned in the constitution."

That's precisely what it means to me. "Deny" is pretty obvious, although "disparage" is certainly a somewhat antiquated word of an era. The mention of the enumerated rights in the Constitution (those rights the US Government "reserved" for itself) are simply mentioned to indicate that whatever is not listed (rights “reserved” for the US Government) in the Constitution are retained by the People ('others' being any other rights). However, I read the way the wording of Amendment IX is written (and probably intended by the Framers) and the way we know the entire mechanism of the US Constitution and US Government works is that it does not mean the government "can not" exercise power to deny those UNenumerated rights but that it "was not" exercising that power solely within the enumerated rights of the Constitution as they are written. We can probably say that any right not "enumerated" ("reserved") by the US Government in the US Constitution or left to the States was assumed to be a right of the People, at that time and until some law or constitutional ruling limited or removed it as a right of the people. Of course, that could be construed by some to mean that the US Government left open the opportunity to do exactly what it appears it said in Amendment IX they could not do---eg "deny" some right UNenumerated within the Constitution. And that is precisely what many American citizens feel they have done over time and are continuing to do.

You said:

"If the people have all the "rights" not specifically reserved for the government, why can't I import a hallucinogen from Mexico if using it is a recognized part of my religion?"

Simply because, as I mentioned above that may have been an "UNenumerated" right of the people once but it was later denied as a right of the people by US laws (legislation) (which are merely part of the mechanism of the enumerated rights listed by the US Constitution as “reserved” to the US Government to enact law over time).


But the good news, I suppose, is that the mechanisms are there within the US Constitution for the people through their right to VOTE (and a few other “checks” like Constitutional amendments, recall etc) to essentially have the capability of altering anything that is enacted on them by the US Government if they feel strongly enough about it.

(In a sense the entire "enumeration" of rights by the US Constitution which are not that lengthy seemingly leaving whatever was not "enumerated" (Unenumerated right) as a right retained by the people is probably something akin to the "Equity" rule in golf which means anything not listed as a "rule" in the rule book can be interpreted by the Rules of golf whenever the need arises).

[peter_p]

     Tom McWood said that something happened in the 1960s and no one has answered. I think it was the advent of air travel and the interstate.
     Beyond the salesmen and professionals, few people traveled outside their region. Thus you had a fairly stable population of members of private clubs in your area. The easing of transportation costs allowed private club members from all over the chance of reaching any club's front gate.
     A second consideration is Golf Digest's first list, in 1966, of the 200 Toughest courses. This created an urge for some golfers to play as many of them as possible.
     My stats - Top 100 US- 20   Top 100 Rest of World -37

[TEPaul]

Craig Disher said:

"My point is that the right of association is not absolute. Our government has decided on numerous occasions that society's interests trump those of small groups of individuals if their activities have an effect on the society at large.

Following that logic, it's hard to see how a golf club, solely devoted to the golfing enjoyment of its members, could be subject to any regulations regarding its membership practices or access.  But who knows where that line would be drawn in a court case."

Craig:

There's no question that the the American "right" of "freedom of association" is NOT absolute--although no one could logically deny that it is being practiced in some form now and within the laws, rules, regulations and statutes of the States and US Government now. And that is precisely the nature of the "UNenumerated" rights left to the People by the logic and wording of Amendments IX and X. In reality those "rights" are retained by the People unless and until they are removed, limited or abridged by the US Government (or state and local governments).

If I understand your second and last paragraph correctly, I cannot see why the government would go too far either in regulating those rights of private member clubs to associate with only those they chose to associate with.

In a potential case such as "Burk vs ANGC" may have been if it actually got to the US Supreme Court, the commonsense and logic of all this tells me that the US Supreme Court, no matter it's social philosophy in any time would be inclined to tell a plaintiff such as Burk that she has every right and opportunity to go out and start her own club like ANGC and associate with whomever she pleased under the concept of "privacy" as understood by the US concept of "freedom of association". And that therefore she has no right to expect that ANGC should be denied that they can associate with whomever they chose to---which of course also means they do not have to associate with whom they don't choose to associate with.

[Gene Greco]

Mark R. and Paul T.:

    If you are a CITIZEN of and a MEMBER of a club in the UK and called a private, perceived as unattainable US club located on ONE OF THE COASTS and asked how you might be able to play the course, you'd be surprised how accomodating many club secretaries are in arranging a host for you.

No legal rules are broken.

The savvy clubs realize many Americans are accomodated in the UK and their members are eager to reciprocate.

[Craig Disher]

Tom,
I think your textbook is trying to spin the 9th.

That drove me to drag out an old con-history textbook - it says more artfully what I was trying to convey: "By the proposed amendments, Congress was to be prohibited from from abridging the freedom of religion, of speech, of the press, of assembly, or of bearing arms, and federal authority was closely restricted in quartering troops, in prosecuting citizens for crimes, and in inflicting punishments. Out of these proposals grew the first five and the Eighth and Ninth Amendments."

My sentence that you quoted wasn't what I meant to say (I should proofread for more than spelling) - I don't know what "government's rights" means. I meant to say that the enumerated rights in the Constitution (those explicitly spelled out) couldn't be used to infringe on the rights of the people. Other "rights" that people have can be restricted by acts of Congress; the ones enumerated can't be. I think we are close to agreement on that after reading your answer to my Mexican import hypothetical.

Even though the list of enumerated rights is pretty short, the "penumbra" surrounding each of them has grown large over time.

I assume that Burke's complaint with ANGC did not revolve around their violation of state or local public accommodation laws. They are probably less restrictive than NY's. I doubt she could rely on the Jaycees/Rotary Club precedent because the clubs are so different in purpose from ANGC. Could she argue that "business" is conducted on the property and that the equal protection clause of the 14th amendment bars discrimination? I can hear Scalia making the point in your last para.

[SPDB]

TEPaul - Craig Disher's right. For the argument your making, the 9th & 10th Amendments are the last place I'd look.

[astavrides]

Somebody posted something in this thread (I couldnt find it or else I would have quoted it) about the members of a club all testifying that they were members of the club just for recreation and not to do business.  Is this usually the case at private clubs?  I would have thought in many instances people would join a club in part to get more business--like maybe a dentist or lawyer for example--or at least to have a place to entertain their clients.

[blasbe1]

I would have thought in many instances people would join a club in part to get more business--like maybe a dentist or lawyer for example--or at least to have a place to entertain their clients.

Alex:

As a hopefully, former attorney, who entertains clients at the club from which I met and use my dentist (who is excellent, btw) your point is well taken, however, and I speak only from personal experience, my private club memberships have always been about the golf, the rest is nicities often over estimated.  

For example, I'd likely trade my memberships for the equivelent access to Bethpage Black (given it's locale to home) and I'd look for nothing in return but the tract and a cold pint after trecking up the 18th fairway.  I'd even get a new dentist . . .  

BTW, and just so we're all clear here, THE PUBLILC OPTION IN BETHPAGE BLACK SUCKS ACCESS WISE, and is corrupt, full of shit waiting in the car all night, and otherwise more trouble than it's worth trying to kiss the ass of someone in the Nassau Players Club, which is a joke, telephone pyrimad scheme, founded only to dominate public access times at all Bethpage courses.  


I'll read the rest of the thread/novel here  . . obviously the issue has been torn.

[ForkaB]

Paul Turner and Rich Goodale,

Please read both laws.
Then tell us what you think.

You may find them by searching:

New York City Public Accomodations Law

New York State Public Accomodations Law

Pat

With all due respect, this is a dicsussion group, and not the Spanish Inquisition............

If you can articulate either or both laws succinctly, please do so for us and don't ask us to waste our time.  If you are unable to, please hire a lawyer to do it for you--it would be far cheaper for you than hiring Paul and I out at our outrageous hourly rates!

[Gene Greco]

Jason:

    You're sooooooo right.

Definitely tougher to get on Black with a suitable tee time than virtually anyplace in the US.

Didn't a member of Pine Valley try to play the top 100 in the world in 100 days and almost wasn't able to play the Black which would have foiled his attempt?

[Patrick_Mucci]

Rich Goodale,

I had previously articulated, succinctly, mind you, the onerous nature of the laws, but, that didn't seem to register, hence I thought actually reading them, especially the first page under definitions, would do the trick.

Tom MacWood,

Peter's theory has some merit, but, when 15,000,000 people live in the NY Metro area, they didn't need to fly to get from Baltusrol to Winged Foot to NGLA or any other club in the area.

Seeing a golf course on TV would entice some to want to play it and air travel made that golf course more accessible to those who lived a good distance from it.  But, it doesn't explain the inability of locals to gain access.

Perhaps the rising popularity of golf was partially responsible.

What many forget is that club's feel that if access is easily gained by an individual, why would they spend the money to join, and hence, the club would flounder.  And, club's feel that people want what they can't have, that exclusivity is desireable, hence they draw members for that purpose.
Clubs NEED DUES and INTIATION fees to survive.
They can't give away playing privileges.
Join or go somewhere else for your golf is a concept that perpetuates the membership recruitment process.

Rising popularity - crowding
TV                     exposure
Travel                 access
Legal                   liability
Financial              Exclusivity

All of the above factor in to one degree or another.

[TEPaul]

Craig:

We probably are close on this type of issue or flow and how the mechanisms of the US Government and the interpretations within particularly the Supreme Court on the US Constitution and Bill of Rights work on it. The old "penumbra" is a good thing to mention at this point in how things have evolved, how they've worked and will continue to. The idea of the "penumbra" is real, it happens, there is practically 200 years of evidence of it. Conservative thinkers may not like it or agree with it but they can hardly deny that it exists!

One only needs to understand the early impact of Chief Justice John Marshall, his development of the concept of "Judicial Review" within the idea of "implied powers" and what-all that developed into. In a sense it made law and the interpretation of it a living breathing on-going social contract with the people---a way of the government expanding to deal with the "times".

The dynamic of conservative vs liberal thinking amongst the people of this country sometimes makes me laugh. Ultra conservatives (Constitutional strict constructionists) constantly bemoan the fact that the Court may be too "interpretative" which they feel they shouldn't be or do not have the right or power to be because they feel the words of the Constitution or Bill of Rights don't make it clear enough to give them that right.

What a joke that is---whistling in the wind, in fact. They do have that power to interpret and frankly both conservative and liberal jurists have used it for their own purposes and social philosophies for years. Few, if any, jurists have ever relied on the type of "word smithing" that some people do---and some on here. Those conservative "word-smiths" advocate if the words don't conform precisely to some interpreted course of action--that course of action can't legally be taken. That's crap---it can and does and from jurists of all persuasions for nearly two centuries!

You are completely correct that the American "right" of "freedom of association" as it has existed and existed today is not some "absolute" power to the people that can be conveniently found anywhere within the US Consitution or the Bill of Rights. It will be interpreted, and probably by the US Supreme Court when the time and need arises.

I'm betting, any Supreme Court, no matter what the general political persuasion or political or social philosophy of it may be at any time will never wipe it out altogether in the context of the "private" status golf club. They may continue to limit and define it, or allow States and localities to but abolish it altogether, at least on a federal level---I don't think that will ever happen as it just isn't common-sensical---and no matter the make up of any US Supreme Court, they will understand that.  

[DMoriarty]

Tom MacWood's observation that something changed in the 60's is interesting, as are some of the theories on what may have changed.  

Another factor which might be important is the passage of Federal Civil Rights legislation--  more specifically the Constitutional basis that legislation.  

In the post Civil War cases the Supreme Court read the 13th and 14th amendments extremely narrowly to emasculate Congress's ability to deal directly with private discrimination.   With the Civil Rts movement in the 1960's when Congress finally decided to do something about private discrimination, they did not rely on the Civil Rts Amendments.   Instead they used the Commerce Clause to justify their legislation, thus (theoretically) limiting their reach to only those engaged in interstate commerce.   But interstate commerce is very broad (at least until recently) so those that wished to avoid Congress's reach (for example, those who wanted to discriminate) had to watch their step and stay out of all matters that might be considered commerce.   The more one engages in activities which might be considered commerce, the more they subject themselves to Congressional control.   Thus we see the retreat from things relating to commerce of groups who desired to continue discriminating starting in the 1960's.  

[TEPaul]

Shivas:

A US Supreme Court of any persuasion in their quest to do what they think best will more than very likely go through those grammatical rammifications you just mentioned like a hot knife through warm butter.

I can just see a conservative strict constructionist Supreme court justice write;

"While philosophically I would like to uphold Americans' right to "freedom of association" and present "Private" club policies, I'm afraid technically I cannot do that because there's an "and" and an "or" in the wrong places and a comma that's confusing".

It's probably true to say that none of the framer's of the US Constitution and Bill of Rights as well as any Supreme Court Justice was a "Mrs Grundy English teacher" or cared to be!

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