Correspondence - McCleskey, Warren Vol. 2 of 3 (Redacted)
Correspondence with Client
July 8, 1986 - June 14, 1990
4 pages
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Brief Collection, LDF Court Filings. Patterson v. McLean Credit Union Brief for Respondent on Reargument, 1987. 330f37d7-c09a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/d9d6edd7-4d33-4788-8857-105b65f2a95f/patterson-v-mclean-credit-union-brief-for-respondent-on-reargument. Accessed September 03, 2025.
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No. 87-107
In the
(flourt af tfyz United States
October Term, 1987
BREN D A PA TTER SO N ,
vs.
M cLEA N C R E D IT U NIO N,
Petitioner,
Respondent.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FOURTH CIRCUIT
BRIEF FOR RESPONDENT ON REARGUMENT
H. L ee D avis, J r .
G eorge E . D oughton, J r .
Hu tc h in s, T y n d a ll .
D oughton & Moore
115 West Third Street
Winston-Salem,
North Carolina 27101
(919) 725-8385
E arl M. Maltz
112 Orchard Way
Rosemont. Pennsylvania 19010
(215) 327-5353
*Counsel of Record
Roger S. K a pla n *
Anthony H. Atlas
Sara J . Herrin
J ackson , L ew is, Schnitzler
and K rupman
261 Madison Avenue
New York, New York 10016
(212) 697-8200
G ary R. K essler
J ackson , L ew is, Schnitzler
and Krupman
700 Peachtree Center - South Tower
225 Peachtree Street, N.E.
Atlanta. Georgia 30303
(404) 525-8200
Attorneys for Respondent
QUESTION PRESENTED
Whether or not the interpretation of
42 U.S.C. §1981 adopted by this Court in
Runyon v. McCrary. 427 U.S. 160 (1976), should
be reconsidered.
-ii-
TABLE OF CONTENTS
QUESTION PRESENTED ..................... i
TABLE OF CONTENTS.......................... ii
TABLE OF AUTHORITIES.....................vii
CITATIONS TO OPINIONS AND JUDGMENTS
B E L O W .................................. 1
JURISDICTION ............................ 1
STATUTE INVOLVED ....................... 1
STATEMENT OF THE C A S E ................... 2
SUMMARY OF ARGUMENT ..................... 9
ARGUMENT
I. SECTION 1981 AUTHORIZES NO CAUSE OF
ACTION FOR PURELY PRIVATE ACTS OF
RACIAL DISCRIMINATION SINCE IT
DERIVES FROM "STATE ACTION"
PROVISIONS OF SECTION 16 OF THE
ENFORCEMENT ACT OF 1870 AND SECTION
1977 OF THE REVISED STATUTES . . . . 12
A. The Dissent in Runyon Correctly
Interpreted Section 1981 As Derived
fromSection 16 of the Enforcement
A c t ................................ 13
B. The Enforcement Act of 187 0 Rendered
Section 1 of the Civil Rights Act
Largely Vestigial As To Contract
R i g h t s................................ 15
1. Congress Viewed Both Acts
Under The Lens Of The
Fourteenth Amendment ........ 17
-111-
2. The Reasons for the
Reenactment of the Civil
Rights Act in Section 18
Support The Derivation of
Section 1 6 ............... 22
C. Section 1977 of the Revised Statutes
Was A Modified Reenactment of
Section 1 6 ........................ 24
1. The 1872 Report of the
Commissioners for Revision
of the Statutes Indicates
That §1977 Was Derived
Only From § 1 6 ................2 6
2. The Further Revisions of
T h om as J. Durant
Maintained The "Equal
Protection" Headnote of
Future §1977 ................. 30
3. Representative Lawrence's
Explanation of the
Revision Supports the
Commissioners'
Interpretation of §1977 . . . . 33
4. The Secretary of State's
Addition of Marginal
Notations Further Supports
The "State Action"
Interpretation of § 1977 . . . 36
D. Petitioner's Argument That §1981
Authorizes Suits For Private
Discrimination By Incorporating
Section 1 of the Civil Rights Acts
Is Unpersuasive ................. 41
-iv-
II.
A.
B.
C.
1. Petitioner's Arguments
Are I r r e l e v a n t ............... 42
2. Despite Petitioner's
Contention, The Citations
in the Commissioners' 1872
Report Imply A State
Action Requirement
Consistent with § 1 6 ...........43
THE CIVIL RIGHTS ACT OF 1866 WAS
INTRODUCED TO REMOVE THE LEGAL
DISABILITIES IMPOSED BY STATE LAW
AGAINST BLACK CITIZENS ............. 47
The Theory That The Civil Rights Act
of 1866 Was Intended To Reach
Private Action Is Inconsistent With
The Political Dynamics Of The Early
Reconstruction E r a .................... 47
Ante-Bellum Laws Deprived Slaves of
Fundamental Legal Capacity ......... 57
The Civil Rights Act of 1866
Nullified State Laws Disabling
Freedmen and Granted Essential Legal
Capacity, But Did Not Include A
Cause Of Action For Private Acts Of
Discrimination . . . , 60
1 . The Statute . . , 60
2. The Civil Rights Act of 1866. . 62
a. The Debates
Senate . . .
in the
62
b. The Debates in the
of Representatives
House
• • • • 68
-v-
c. The Draft of the Bingham
Amendment To Provide a
Civil Suit For Violators
of the A c t ................. 75
d. The Debates To Override
In The S e n a t e .......... 8 0
e. The Debates to Override
in the H o u s e ............... 82
3. Petitioner's Contentions in
Support of Jones are
Unpersuasive ................. 85
a. The Schurz Report . . . . 85
b. The Joint Committee
R e p o r t ...................... 87
III. CONCERNS FOR STARE DECISIS SHOULD
NOT PREVENT THE COURT FROM
OVERRULING RUNYON ................. 94
A. Perpetuation of the Rule in Runyon
Would Breach the Separation of
Powers Ordained By the
Constitution ........................ 95
B. Flexibility Is Inherent In Stare
D e c i s i s ...............................96
C. This Case Calls For Application Of
A Flexible Approach To Stare
D e c i s i s ............................. 107
D. The Principal Concern of Stare
Decisis Would Be Preserved Despite
The Overruling of R u n y o n............ 112
-vi-
E. Congressional Actions Regarding
§1981 Do Not Prevent The Overruling
Of R u n y o n ..........................12 0
F. Asserted Reliance Interests Do Not
Require Adherence To Runyon . . . . 124
G. Runyon Should Be Overruled To
Maintain Public Faith In the
J u d i c i a r y ............................ .
CONCLUSION ........................128
APPENDICES
■vii-
TABLE OF AUTHORITIES
Cases Page
Alveska Pipeline Service Co. v. Wildness
Society. 421 U.S. 240 (1975) . . . . 123
Bailey v. Poindexter's Executor. 14 Va.
(55 Gratt) 132 (1858) ............ 57
Baldwin v. State of New York. 399 U.S.
117 (1970).......................... 104,
105
Bhandari v. First National Bank of
Commerce, 829 F.2d 1343, (5th Cir.
1987) (en banc), petition for cert,
filed. 56 U.S.L.W. 3542 (U.S. Feb.
2, 1988) (No. 87-1293)............... 115,
118,124
Boys Markets. Inc, v. Retail Clerk's
Union. Local 770. 398 U.S. 235
(1970)...............................103,
104, 121,
126
Bob Jones University v. United States,
461 U.S. 574 (1982) .............. 121
Braden v. 30th Judicial Cir. Ct. of
Kentucky. 410 U.S. 484 (1973). . . . 103
Brvant v. Yellen. 447 U.S. 352 (1980) . . 121
Bucklev v. Valeo. 424 U.S. 1 (1976) . . . 96
Bvlew v. United States. 80 U.S. (13 Wall.)
581 (1871).......................... 107
-viii-
Citv of Milwaukee v. Illinois and
Michigan. 451 U.S. 304 (1981) . . . 121
Chapman v. Houston Welfare Rights Ora..
441 U.S. 600 (1979)............... 22
City of Greenwood v. Peacock. 384 U.S. 808
(1966) .............................. 105,
109
Civil Rights Cases. 109 U.S. 3
(1883).............................. 2,
66,108
Consumer Product Safety Com'n v.
GTE Sylvania, Inc.. 497 U.S. 102
(1980)............................... 121
Commissioner v. Fink. ___U.S.___,
107 S.Ct. 2729 (1987) 103
Corfield v. Coryell. 6 F. Cas. 546
(No. 3, 230) (C.C.E.D. Pa. 1823). . 51
Corrigan v. Buckley. 271 U.S. 323 . . . . 108
Derry v. Lowry. 6 Phila. Rep. 30 . . . . 53
(Common Pleas 1865) ............. . 54
Emerson v. Howland. 8 F. Cas. 634
(C.C.D Mass. 1816) (No.4,441) . . . 57
Ex Parte Bollman, 8 U.S. (4 Cranch) 75
(1807)............................... 46
Fable v. Brown, 11 S.C. Eq. (2 Hill Eq.)
378 (1835)............................ 59
Field v. Clark. 143 U.S. 649 (1892) . . 96
-ix-
Garcia v. San Antonio Metro. Transit
Authority, 469 U.S. 528 (1985) . . . 102
General Building Contractors Assoc.,
Inc, v. Pennsylvania, 458 U.S.
375 (1982).......................... 110>111
Girouard v. United States. 328 U.S. 61
(1946)...............................121'124
Goodman v. Lukens Steel Co., ___U.S.___,
107 S .Ct.2617 (1987)...............110,112
Helverina v. Hallock, 309 U.S. 106
(1939).............................. 1°4
Hensler v. Union Planters Bank, 335
U.S. 595 ..............................I26
Hodaes v. United States. 203 U.S.
1 (1906)............................ 1°8
Hurt v. Hodge. 334 U.S. 24 (1948)
(§1982) 1°8
In re Turner. 24 F. Cas. 337, 1 Abb.
U.S. 84 (C.C.D. Md. 1867) (No. 12,
247) 44,45,46,
47
International Bro. of Teamsters v.
United States. 431 U.S. 324
(1977).............................. 121
Jefferson County Pharmaceutical Ass'n
v, Abbott Laboratories, 460 U.S.
150 (1983) ..................... . 121
-x-
Jenkins v. Brown. 25 Tenn. 299 (1845) . . 57
Johnson v. Railway Express Agency.
421 U.S. 454 (1975)............... 4,
5, 8,
115
Johnson v. Transportation Agency,
Santa Clara Co.. U.S. , 107
S.Ct. 1442 (1987) ............... 103,
106, 109,
120, 121
Johnson v. Mississippi. 421 U.S. 213
(1975)........ ...................... 109
Jones v. Alfred H. Maver Co.. 392
U.S. 409 (1968)................. 4, 6,
7, 12,
54, 85,
86, 108
J.W. Hampton, Jr. & Co. v. United
States. 276 U.S. 394 (1982) . . . . 96
Kentucky v. Dennison. 65 U.S. (24 How.)
66 (1861) .......................... 93
Mahone v. Waddle. 564 F.2d 1018 (3d Cir.
1 9 7 7 ) .................................... 22,
79
Maine v, Thiboutot. 448 U.S. 33
(1980).............................. 106
Monell v. Department of Social Services
of the City of New York. 436 U.S.
658 (1978)...........................
103
109
-xi-
Monroe v. Pape. 365 U.S. 167
(1961).............................. 106,
113
Moraane v. States Marine Lines, Inc..
398 U.S. 375 (1970)............... 112
National Muffler Dealers Ass'n, Inc,
v. United States. 440 U.S.
472 (1979).......................... 14
New Jersey Steam Navigation Co. v.
Merchants Bank. 47 U.S. (6 How.)
344, (1848) 53
NLRB v. International Longshoremen's
Ass'n. U.S.___, 105 S.Ct.
3045 (1985) 113
Northwest Airlines. Inc, v. Transport
Workers Union. 451 U.S. 77
(1981).................................96
Patterson v. McLean Credit Union. 56
U.S.L.W. 3735 (April 25, 1988)
(per curiam) (ordering reargument) . 106
Polaroid Coro, v. Commissioner. 278 F.2d
148 (1st Cir. 1960), aff1d sub nom.
Jarecki v. G.D. Searle & Co.. 367
U.S. 303 (1961) 14
Pricrq v. Pennsylvania. 41 U.S. (16 Pet.)
539 (1842).......................... 93,
94
Runyon v. McCrary. 427 U.S. 160
(1976) passim
Russello v. United States. 464 U.S. 16
(1983) .......................... 121
-xii-
Schwecnnann Bros, v. Calvert Distillers
Corn. , 341 U.S. 384 (1951) ............. 62
Slaughter House Cases. 83 U.S.
(16 Wall.) 36 (1873) ............. 46,
67, 107
Screws v. United States. 325 U.S.
91 (194)............................ 67
Square D Co. v. Niagara Tariff Bureau.
U.S. ___, 106 S.Ct. 1922
(1986) 103
St. Francis College v. Al-Khazraii,
___U.S.___, 107 S.Ct. 2022
(1987) Ill,
115
Strauder v. West Virginia. 100 U.S.
303 (1880).......................... 108
The Live Stock, etc. Ass'n v. The
Crescent City, etc. Co., 1
Abb. U.S. 388 (C.C.D. La. 1870) . . 46
Thornburgh v. American College of
Obstetricians. U.S. , 106
S.Ct. 2169 (1986)................. 102
Tillman v. Wheaton-Haven Recreation
Ass'n. 410 U.S. 431 (1973)......... 4,
8
United States v. Cruikshank. 92 U.S. 542
(1876).............................. 107
United States v. Stauffer Chemical Co..
684 F .2d 1174 (6th Cir. 1982) . . . 121
-xiii-
United States v. Classic, 313 U.S. 299
(1941).............................. 67
United States v. Price. 383 U.S. 787
(1966).............................. 109,
121
United States v. Rhodes, 27 F. Cas.
785, 1 Abb. U.S. 28 (C.C.D.
Ky. 1866) (No. 16, 151) 44,
45, 46
United States v. Williams. 341 U.S.
70 (1951) 70
Watson v. Fort Worth Bank & Trust.
798 F .2d 790 (5th Cir. 1986) . . . . 116
Wavman v. Southard. 213 U.S.
(10 Wheat.) (1825)................... 96
Wvatt v. Security Inn Food &
Beverage Inc., 819 F.2d 69
(4th Cir. 1987) 120
Yick Wo v. Hopkins. 118 U.S. 356
(1886).............................. 108
Statutes and Constitution
42 U.S.C. §1981......................... passim
2 U.S.C. §1982 passim
42 U.S.C. §1985 .......................... 121
Civil Rights Act of 1986 121
42 U.S.C. §1988 123
-xiv-
Civil Rights Act of 198 6 ............... 121
42 U.S.C. §1988 . . . . . . . ........... 123
Act of April 9, 1866, Ch. 31
(Civil Rights Act of 1866) 1) . . passim
Civil Rights Act of 1968 ............... 121
Civil Rights Act of 1974 ............... 119
Civil Rights Act of 1964 (as amended
42 U.S.C. §2000a, et seq.) . . . passim
Revised Statutes of the United States
1873-174 (G.P.O. 1875) 6
§1978 Revised Statutes............passim
§1977 Revised Statute .......... passim
§5596 Revised S t a t u t e .............. 24,
37
U.S. Constitution Amendment
X I V ..................................15,
17, 18
Act of June 27, 1866, 14
S t a t ..................................25,
26, 27,
29, 74
Act of May 31, 1870, ch. 114,
(Enforcement Act of 1870) . . . . passim
Act of April 20, 1871, ch. 22
(Ku Klux Klan Act of
1871) .............................. 39,
49, 62
-xv-
Revised Statutes of United States
1873-'74 (G.P.O. 1875)
(certified copy) ................... 39
Revised Statutes of United States
1873-174 (G.P.O. 1875)
(Engrossed Act)..................... 3 9
Legislative Authorities
S. 365, 41 St. Cong 2d S e s s .............17,18, 19
Cong. Globe 41st Cong., 2nd Sess . . . passim
Cong. Globe 39th Cong., 1st Sess . . . passim
2 Rec. Cong. (1875) passim
S. 810, 41st Cong., 2d. S e s s .........passim
110 Cong. Rec. (1964)................... 122
H.R. Rep. No. 238, 92d Cong., 1st
Sess. (1971) ........................
Revision of the United States Statutes
as Drafted by the Commissioners
Appointed for That Purpose............28
-xvi-
The Constitution of the United States of
A m e r i c a , A n a l y s i s a n d
Interpretation, S. Doc. No. 16,
99th Cong., 1st Sess. (1986) as
supplemented by 1986 Supp., S.
Doc. No. 9, 100th Cong., 1st Sess.
(1987).............................. 100
H.R. 1215, 43rd Cong., 1st Sess.
(1874).............................. 28
Durant, Report on Revision of Laws
(13pp. - untitled) (1873) 31,
32
Unmarked Copy of T.J. Durant's
Revision. Reported Dec.
1873 ................................ 40,
31, 32
17 Stat. 579, ch. 2 4 1 ................... 31,
32
18 Stat. (Pt. Ill) 113, 43rd Cong., 1st
Sess. , ch. 333 ......................... 35,
36, 37,
38
S .61, 39th Cong., 1st Sess.
(1866) ........................ passim
S .9, 39th Cong., 1st Sess.
(1865) 92,
86, 64
S.60, 39th Cong., 1st Sess.
(1866) ........................... 64
-xvii-
Report of C. Schurz, S. Exec. Doc.
No. 2, 39th Cong., 1st
Sess. (1865)........................ 85,
86, 87
Report of 0.0. Howard, H.R. Exec.
Doc. No. 11, 39th Cong., 1st
Sess. (1866)........................ 86,
87
Report of the Joint Committee on
Reconstruction, 39th Cong, 1st
Sess. ( 1 8 6 6 ) ....................... 86
H.R. 473, 42nd Cong., 2d
S e s s .............................. 91
Other Authorities
Avins, The Civil Rights Act of 1875:
Some Reflected Light On the
Fourteenth Amendment and Public
Accommodations, 66 Col. L. Rev. 873
(1966).............................. 54
Avins, The Civil Rights Act of 1875
and "The Civil Rights Cases"
Revisited: State Action, the
Fourteenth Amendment, and Housing,
14 U.C.L.A. L. Rev. 5 (1966) . . . . 54
Avins, The Civil Rights Act of 1866,
the Civil Rights Bill of 19 66, and
the Right to Buy Property, 40 So.
Cal. L. Rev. 274 (1966) 14,
23 , 58
-xviii-
Belz, A New Birth of Freedom, The
Republican Party and Freedman's
Rights, 1861-1866 (1976) 56
Douglas, Stare Decisis, 49 Col. L.
Rev. 735 (1949) 105
Eskridge, Overruling Statutory Precedents,
76 Geo. L.J. 1361 (1988) 100
McClain, The Chinese Struggle for Civil
Rights in Nineteenth Century
America: The First Phase, 1850-
1870, 72 Cal. L. Rev. 529
(1986).............................. 15,
16
Stevens, The Life Span of a Judge-Made
Rule, 58 N.Y.U. L. Rev. 1
(1983).............................. 101
Sprecher, The Development of the Doctrine
of Stare Decisis and the Extent to
Which It Should Be Applied, 31
A.B.A.J. (1945) 101
Dawn and Feidler, The Federal Statutes
- Their History and Use, 22 Minn. L.
Rev. 1008 (1938)................... 26
81 Lab. Rel. Rep. (BNA) 451 (1987) . . . 116
Legal Times of Washington, Vol. XI,
No. 2, June 6, 1988 118
Catania, State Employment Discrimination
Remedies and Pendent Jurisdiction
Under Title VII: Access to Federal
Courts, 32 Am. L. Rev. 777
(1983) . 119
-xix-
Legislative History of Title VII of
the Civil Rights Act of 1964 . . . . 122
Wald, Alternatives to Title VII: State
Statutory And Common-Law Remedies
For Employment Discrimination, 5
Harv. Women's L.J. 35 (1982) . . . .118
Burdick, The Revision of the Federal
Statutes, 11 A.B.A.J. 187
(1925).............................. 26
Eisenberg and Schwab, The Importance of
Section 1981, 73 Corn. L. Rev. 596
(1988).............................. 113
1 Superintendent of Documents, Checklist
of United States Public Documents
1789-1909, (3d ed. 1 9 1 1 ) ........... 26
1 Abbott's National Digest (1884) . . . . 30
Blodgett, The Revised Statutes of the
United States, Read Before the
Social Science Association of
Philadelphia, Dec. 16, 1875 as
reprinted from the Penn Monthly,
January 187 6 ........................ 26,
32
New York Chamber of Commerce,
Title No. 8, Revision of the
Commissioners' Draft (1873) . . . . 32
Maltz, Reconstruction Without Revolution:
Republican Civil Rights Theory In
The Era of the Fourteenth Amendment,
24 Houston L. Rev. 221 (1987) . . . 49,
51, 91
-XX-
Maltz, 'Separate But Equal' and the Law of
Common Carriers in the Era of the
Fourteenth Amendment, 17 Rut. L.J.
553 (1986) ........................ 53
Harper's Weekly. November 10, 1866 at
706 ................................ 50
Open Letter from Carl Schurz to William
Fessenden, Cincinnati Commercial.
May 18, 1866 ........................ 50
Springfield Republican. April 5, 1866 . . 50
H . Hyman, A More Perfect Union: The
Impact of the Civil War and
Reconstruction on the Constitution
(1973) 50
Cincinatti Commerical, March 30, 1866,
April 16, 1866, April 10, 1866,
April 21, 1866 91
M.L. Benedict, A Compromise of Principle:
Congressional Republicans and
Reconstruction 1863-1869
(1974) 53,
55
Philadelphia North American, Apr. 10,
1866 ................................ 9]_
IB Moore's Fed. Prac. . 107
87-107
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1987
BRENDA PATTERSON, Petitioner,
vs.
MCLEAN CREDIT UNION, Respondent.
On Writ Of Certiorari To The
United States Court of Appeals
For The Fourth Circuit
BRIEF FOR RESPONDENT ON REARGUMENT
CITATIONS TO OPINIONS AND JUDGMENTS BELOW,
JURISDICTION. AND STATUTE INVOLVED
Respondent has no objection to the
Petitioner's presentation of any of these mat
ters
-2-
STATEMENT OF THE CASE
The Court in Runvon v. McCrary, 427
U.S. 160 (1976), held that "[42 U.S.C.] §1981
prohibits private, commercially operated, non
sectarian schools from denying admission to
prospective students because they are
Negroes___ " 427 U.S. at 168. More broadly,
however, the Court determined that Ӥ1981
...reaches purely private acts of racial
discrimination" in the making and enforcement
of private contracts. Id.
Justice White, joined by Justice
Rehnquist, dissented. In their view, the
plain language of §1981, its legislative
history, and clear dictum in the nearly
contemporaneous Civil Rights Cases. 109 U.S.
3, 16-17 (1883), all inveighed against the
majority's conclusion. 427 U.S. at 192-214.
They saw no prohibition in §1981 "against a
private individual's or institution's refusing
-3-
to enter into a contract with another person
because of that person's race." Id. at 192.
Feeling bound by earlier decisions
of the Court, two other Justices concurred in
the majority decision,-/but expressed varying
degrees of skepticism with its construction of
§1981. Id., at 186-189 (Powell, J. ,
concurring), 189-192 (Stevens, J.,
concurring)
The majority treated the result in
Runvon v. McCrary as virtually foreordained by
-/The dissenters took issue with the concurring
Justices' sense of fealty. Id. at 192 n.l (Per White,
J.).
2/—'Justice Powell stated that he "might well be
inclined to agree with Justice White that §1981 was not
intended to restrict private contractual choices,"
observing that "Much of the [dissent's] review of the
history and purpose of this statute...is quite
persuasive." Id. at 186. Justice Stevens was even more
emphatic: "There is no doubt in my mind that [the
majority's] construction of the statute would have
amazed the legislators who voted for it," he said. Id.
at 189. "Congress intended only to guarantee all
citizens the same legal capacity to make and enforce
contracts,to obtain, own, and convey property, and to
litigate and give evidence. Id.
-4-
earlier cases. 427 U.S. at 168-169.-/. It
began with the premise, articulated in Jones,
392 U.S. at 441-43 n. 78, that both §1981 and
its companion, 42 U.S.C. §1982,-/ derived
originally from §1 of the Civil Rights Act of
1866^/ 427 U.S. at 170. It recalled that in
Jones. the Court held that the portion of the
1866 statute which was codified as §1982
prohibited private racial discrimination in
the sale or rental of real or personal proper
ty. Id. This determination, it continued,
was reaffirmed and broadened in Tillman.
supra. Id. at 171. There, relying on Jones,
3/ Johnson v. Railway Express Agency. 421 U.S.
454 (1975); Tillman v, Uheaton-Haven Recreation Ass'n.
410 U.S. 431 (1973); Jones v. Alfred H. Mayer Co.. 392
U.S. 409 (1968). The majority agreed with the court of
appeals in Runyon that the "conclusion that §1981 was
. . . violated follows inexorably from the language of the
statute, as construed in Jones. Tillman, and Johnson."
427 U.S. at 173.
4/—' See App. at 7.
^Act of April 9, 1866, ch. 31, §1, 14 Stat. 27.
See App. at 1-5.
-5-
the Court held that a private swimming club
had violated §§1981 and 1982 and the Civil
Rights Act of 1964,^ by enforcing a guest
policy that discriminated against Negroes. It
saw no reason to interpret §1981 and §1982
differently there in view of the "historical
interrelationship" between the two provisions.
427 U.S. at 171.
Finally, in reviewing Johnson, 421
U.S. 454 (1975), the majority stated:
[T]he Court noted that §1981
"relates primarily to racial
discrimination in the making and
enforcement of contracts," 421 U.S.,
at 459, and held unequivocally "that
§1981 affords a federal remedy
against discrimination in private
employment on the basis of race."
Id., at 459-460.
427 U.S. at 172. The Court declared that from
these precedents it was "apparent" that the
respondent private schools in Runvon had en-
6/ 42 U.S.C. §2000a, et se£., (1981).
-6-
gaged in "a classic violation of §1981" by-
barring the black applicants. Id.
The dissent faulted the majority's
analysis of the legislative history of §1981.-/
Whereas the principal opinion saw §1981 as a
lineal descendant of §1 of the Civil Rights
Act of 1866, as interpreted in Jones, the
dissent concluded that §1981 (formerly §1977
of the Revised Statutes of 1874)^// in fact was
the literal reenactment of §16 of the
Enforcement Act of 1870-/, and was not rooted
in the 1866 Civil Rights Act. 427 U.S. at 206-
-Alnlike the dissent, the majority opinion in
Runyon did not directly address whether the plain
language of §1981 supported the results. Presumably,
it found this task unnecessary in light of its reliance
on past decisions. The dissent, of course, found no
warrant for the Court's decision in the language of the
Code. 427 U.S. at 193-195.
—/Revised Statutes of the United States, 1873-'74
(U.S. Gov't. P.O., Washington D.C., 1875) at 384.
-/Act of May 31, 1870, ch. 114, §16, 16 Stat.
140, 144.
-7-
211 . ^ It laboriously traced the legislative
history of §16 of the 1870 statute to show
that §1981 "means what it says and no more",
i.e. "that it outlaws any legal rule disabling
any person from making or enforcing a contract
but does not prohibit private racially motiva
ted refusals to contract." Id. at 195.
Having reached this conclusion, the dissent
disputed the majority's assertion that a full
examination of the meaning of §1981 was
pretermitted by the three cases cited
earlier.11/ 427 U.S. at 192 n.l, 213-214.
Jones. it explained, was a decision construing
§1982, which had a different source than
§1981, and did not foreclose a determination
— /The majority conceded that §1977 of the
Revised Statutes (1874) was based, in part, on §16 of
the 1870, but saw the latter as an interim measure in
no way diminishing the right of action based on private
acts of discrimination which, it believed, was created
by §1 of the 1866 Civil Rights Act.
~ / see. supra. at 4 n.3.
-8-
on the merits regarding §1981; the writ of
certiorari in Johnson was limited to the issue
of whether the timely filing of a Title VII — ̂
charge with the Equal Employment Opportunity
Commission tolls the running of the period of
limitations for filing an action based on the
same facts under §1981, and the Court’s
statement in Johnson that §1981 supplies a
cause of action for a private racially
motivated refusal to contract was dictum, made
without briefs and without discussion; and
Tillman held only that the respondent swimming
club was not a private club under Title II of
the Civil Rights Act of 1964, and not exempt
as a private club from any cause of action
based either on §1981 or §1982, should one
exist. Id. Accordingly, the dissent in Runvon
viewed §1981 as a fair subject for
^ C i v i l Rights Act of 1964, Title VII, as
amended. 42 U.S.C. §2000a, et se£. (1981).
-9-
authoritative statutory construction by the
Court. ̂
SUMMARY OF ARGUMENT
The Court's invitation to the par
ties to argue whether the decision in Runyon
should be reconsidered entails a reexamination
of the merits of its statutory construction.
This, in turn, requires an inquiry into the
intent of the Enforcement Act of 1870, as well
as the 1874 enactment of §1977 of the Revised
Statues. Deriving as it does from the "State
action" provisions of these laws, §1981
authorizes no cause of action for purely
private acts of racial discrimination.
Moreover, even consideration of the
1866 Civil Rights Act does not alter this
— ^The concurring Justices accepted the
majority's premise that §1977 of the Revised Statutes
was based in part on the Civil Rights Act of 1866, but
questioned or disputed the court's interpretation of
that earlier enactment. 427 U.S. at 186 (Powell, J.,
concurring); id. at 189-190 (Stevens, J., concurring).
-10-
conclusion. This was recognized by the
dissent in Runyon. From its history, it is
plain that the Civil Rights Act of 1866
specifically intended to remove the legal
disabilities imposed by state laws against
black citizens. Laws governing their prior
status as slaves had deprived these
individuals of fundamental legal capacity in
such matters as contracting. The Act was
intended to nullify recently enacted state
laws that sought to disable freedmen by again
depriving them of their legal capacity. No
cause of action was provided for private acts
of discrimination.
Finally, we argue that concerns for
stare decisis should not prevent the Court
from overruling Runvon. Perpetuation of the
Runyon rule would, indeed, breach the
constitutional separation of powers. Stare
decisis, requires flexibility, rather than
rigid adherence. Here, the principal concern
-11-
of the doctrine may be preserved despite a
decision to overule Runyon.—
±^For the reasons stated in our previous brief
on the merits, as well as for those stated herein,
Respondent submits that Petitioner cannot maintain an
action pursuant to §1981. Accordingly, the result in
this matter should remain the same, even if the Court
decides to reconsider Runyon.
-12-
ARGUMENT
POINT I
SECTION 1981 AUTHORIZES NO CAUSE OF ACTION FOR
PURELY PRIVATE ACTS OF RACIAL DISCRIMINATION
SINCE IT DERIVES FROM "STATE ACTION"
PROVISIONS OF SECTION 16 OF THE ENFORCEMENT
ACT OF 1870 AND SECTION 1977 OF THE REVISED
STATUTES.
Viewing §1981 as derived, in part,
from the Civil Rights Act of 1866, the
majority in Runyon saw no need to fully
discuss the effects of the Enforcement Act of
1870 on the present statute. Justice White,
joined by Justice Rehnquist, dissenting,
believed that this intervening law gave §1981
a different provenance than the 18 66 Civil
Rights Act, even if Jones correctly
interpreted the 1866 statute under §1982.
The dissenting opinion, in our view, was
correct.
-13-
A. The Dissent In Runyon Correctly
Interpreted Section 1981 As Derived from
Section 16 of the Enforcement Act.
Section 1981's language does not
authorize a contractual servitude for racial
reasons. Justice White correctly observed
that by its plain language, §1981 cannot be
read to impose anti-discrimination
requirements on private decisions to deal.
427 U.S. at 193-196. As there described,
nothing in the statute's wording can be read
to confer superior rights on Negroes or other
racial minorities requiring an unwilling
private party to enter into a relationship
with them. The section guarantees only that
"[a]11 persons" shall have the "same right
.... to make and enforce contracts ... as is
enjoyed by white citizens." (Emphasis).
Thus, the language of the statute points to
-14-
another meaning.^/ It suggests that §1981 is
intended to remove any legal disabilities
imposed on account of race, and confer legal
capacity on the individual so that he may
enter into enforceable contracts and enforce
them in court, if necessary. Id. See Avins,
The Civil Rights Act of 1866, the Civil Rights
Bill of 1966, and the Right to Buy Property.
40 So. Cal. L. Rev. 274, 305-306 (1966)
[hereinafter Avins, Civil Rights Act of 18661 .
This conclusion is borne out by examination of
the origin of §16 of the 1870 statute, which
— correct interpretation of §1981 can be made
by examining the statute on its face. Although the
clause "to make and enforce contracts" does not
necessarily point to a distinct construction, it is
surrounded by other clauses all of which require some
form of state action before judicial enforcement will
occur. The maxim noscitur a sociis ("it is known by its
associates") suggests that the clause "to make and
enforce contracts" should also be interpreted to require
some form of state action. An inquiry into the
legislative history supports this conclusion. See also
Polaroid Corn, v. Commissioner. 278 F.2d 148 (1st Cir.
1960), aff’d sub nom. Jarecki v. G.D. Searle & Co.. 367
U.S. 303 (1961), and National Muffler Dealers Ass'n.
Inc, v. United States. 440 U.S. 472 (1979).
-15-
Justice White correctly concluded is the true
antecedent of §1981. 427 U.S. at 195 and n.6.
B. The Enforcement Act of 187 0 Rendered
Section 1 of the Civil Rights Act Largely
Vestigial As To Contract Rights.
There can be no quarrel with the
dissenting Justices' history of §16 of the
1870 Enforcement Act. It derived from the
Fourteenth Amendment1^ and was designed to
give to all persons within the jurisdiction of
the United States, including Chinese and other
aliens, the equal protection of the laws as
against State abridgment. 427 U.S. at 195-206.
See Bhandari v. First National Bank of
Commerce. 829 F.2d 1343, 1345-1348 (5th Cir.
1987) (en banc), petition for cert, filed, 56
U.S.L.W. 3542 (U.S. Feb. 2, 1988) (No. 87-
1293) ; McClain, The Chinese Struggle for Civil
Rights in Nineteenth Century America: The
■^Aj.S. Const. Amend. XIV, §§1, 2.
-16-
First Phase. 1850-1870, 72 Cal. L. Rev. 529,
565-568 (1986). It was not based on the Thir
teenth Amendment, as was the 1866 Civil Rights
Act. See Runyon. 427 U.S. at 202 (White, J.
dissenting). Nevertheless, insofar as
material here, §16 used language similar to
that employed in Section 1 of the earlier law.
It declared that aliens should:
have the same right in every State
and territory in the United States
to make and enforce contracts, to
sue, be parties, [and] give
evidence, and to the full and equal
benefit of all laws and proceedings
for the security of persons and
property as is enjoyed by white
citizens....
Thus, the real question raised by
the dissent in Runvon is over the fate of §1
of the Civil Rights Act of 1866. The
legislative history of the 1870 Enforcement
Act shows that Section 16 eclipsed it; and the
passage of §1977 of the Revised Statutes of
1874 dispatched it. Thus, the question
whether §1981 authorizes a cause of action for
-17-
purely private acts of discrimination must be
'decided in the negative.
1. Congress Viewed Both Acts Under The
Lens Of The Fourteenth Amendment.
Section 18 of the 1870 Enforcement
Act "reenacted'* the Civil Rights Act of
1866. ̂ However, in introducing S.365, — /
which would ultimately result in §§16 and 18
■^^Section 18 of the Enforcement Act stated:
And be it farther enacted. That the act to
protect all persons in the United States in
their civil rights, and furnish the means
of their vindication, passed April nine,
eighteen hundred and sixty-six, is hereby
reenacted; and sections sixteen and
seventeen hereof shall be enforced
according to the provisions of said act.
Act of May 31, 1870, ch,. 114, §18, 16 Stat. 140, 144.
— ■/"A Bill to secure to all persons the equal
protection of the laws." S.365, 41st Cong., 2d Sess.
(1874); brought in, read twice, referred to the
Committee on the Judiciary, and ordered to be printed,
January 10, 1870. See Cong. Globe, 41st Cong., 2d
Sess., 1536 (February 24, 1870) (Sen. Stewart: "I move
that the Senate proceed to the consideration of [S. 365]
to secure to all persons equal protection of the laws."
(emphasis added) . (This was also the title of the
bill.) S. 365 eventually became §§16-18 of the 1870
Enforcement Act.
-18-
of the 1870 legislation, Senator Stewart of
Nevada, viewed the earlier statute through the
equal protection clause of the Fourteenth
Amendment.
He explained:
The original civil rights bill
protected all persons born in the
United States in the equal
protection of the laws. This bill
extends it to aliens, so that all
persons who are in the United States
shall have the equal protection of
our laws... This is all there is in
the bill.
Cong. Globe, 41st Cong., 2d Sess. 1536
(February 24, 1870) (emphasis added).
Moreover, the object of §16, the "Chinese
19 /— 'The Fourteenth Amendment was first proclaimed
on July 20, 1868. On December 6, 1869, Senator Stewart
introduced a resolution, which was unanimously approved,
authorizing the Committee on the Judiciary to inquire,
inter alia. whether the States were denying to any class
of persons within their jurisdiction the equal
protection of the law in violation of the Fourteenth
Amendment. Cong. Globe, 41st Cong., 2d Sess. 3 (1869).
However, by early 1870 no legislation had been passed.
Id. at 3489 (May 16, 1870) (Sen. Morton: "[NJow nearly
two years have passed away since that amendment became
the law of the land and there is no law to enforce it."
Id.)
-19-
bill,” in equalizing the protection of laws
accorded to "persons” (including aliens) with
that accorded to "citizens” under the 1866 Act
(except as to property) , was made clear from
a colloquy between Senator Stewart and Senator
Pomeroy:
Mr. Pomeroy: I have not examined
this bill, and desire to ask the
Senator from Nevada a question. I
understood him to say that this bill
gave the same civil rights to all
persons in the United States which
are enjoyed by citizens of the
United States. Is that it?
Mr. Stewart: No; it gives all the
protection of the laws. If the
Senator will examine this bill in
connection with the original civil
rights bill, he will see that it has
no reference to inheriting or
holding real estate.
Mr. Pomeroy: That is what I was
coming to.
Mr. Stewart: The civil rights bill
had several other things applying to
citizens of the United States. This
simply extends to foreigners, not
-20-
citizens, the protection of our laws
where the State laws deny them the
equal civil rights enumerated in the
first section.
Id. 12/
■^^Some time later, when Senator Stewart offered
a slightly modified version of S.365 as part of
Senator's Edmund's bill (S.810) to enforce the Fifteenth
Amendment, Senator Stewart again focused on the "equal
protection" needed by Chinese aliens for the legal
capacities conferred on citizens by the 1866 Act:
Mr. Stewart: While [Chinese aliens] are
here I say it is our duty to protect them.
I have incorporated [S.365] in this bill on
the advice of the Judiciary Committee, to
facilitate matters and so that we shall
have the whole subject before us in one
discussion. It is as solemn a duty as can
be devolved upon this Congress to see that
those people are protected, to see that
they have the equal protection of the laws,
notwithstanding that they are aliens.
They, or any other aliens, who may come
here are entitled to that protection. If
the State courts do not give them the equal
protection of the law, if public sentiment
is so inhumane as to rob them of their
ordinary civil rights, I say I would be
less than man if I did not insist, and I do
here insist that that provision shall go on
this bill, and that the pledge of this
nation shall be redeemed, that we will
protect Chinese aliens or any other aliens
whom we allow to come here, and give them
a hearing in our courts; let them sue and
be sued; let them be protected by all the
(continued...)
-21-
Thus, the applicable "provisions of
the 1870 Enforcement Act spr[a]ng from a
different source than the 1866 statute — a
concern for the shameful treatment of alien
Chinese in California." McClain, supra, at
529. Yet, because of the apparent
similarities between the two provisions, §16
naturally would be seen as largely superseding
§1 of the Civil Rights Act.— /
(...continued)
laws and the same laws that other men are.
That is all there is in that provision."
Id. at 3658 (May 24, 1870) (emphasis
added).
Later, Sen. Stewart would emphasize, "[N]o
state shall deny to any person, whether he is an alien
or native-born citizen, the equal protection of the
laws." Id. at 3808 (May 25, 1870). (emphasis added).
— /changes in the proposed wording of the
Enforcement Act reveal the drafters' belief that §16 of
the 1870 Enforcement Act would generally supplant the
1866 law as to those rights common to both. As
originally drafted, Section 18 of the 1870 Act not only
recited that the 1866 Act was reenacted, but it also
stated, "and said Act, except the first and second
sections thereof, is hereby referred to and made a part
of this Act." Cong. Globe, 41st Cong., 2d Sess. 1536
(1870) (emphasis added). Later, however, this
(continued. . .)
-22-
2. The Reasons for the Reenactment of
the Civil Rights Act in Section 18
Support The Derivation of Section
16.
Since Congress was uncertain of its
authority to enact the Civil Rights Act under
the Thirteenth Amendment, Chapman v. Houston
Welfare Rights Ora.. 441 U.S. 600, 651 (1979)
(White, J., concurring); Mahone v. Waddle. 564
F.2d 1018, 1037 n.l (1977) (Garth, J.,
dissenting), action under the Fourteenth
Amendment was necessary to assure that the
property rights protection ("to inherit,
purchase, lease, sell, hold, and convey real
and personal property--- ") accorded citizens,
- ^ (. . .continued)
underscored provision was dropped in favor of the
phraseology adopted in §18: "and sections sixteen and
seventeen hereof shall be enforced according to the
provisions of said act." Act of May 31, 1870, ch. 114,
§18, 16 Stat. 140, 144. Thus, even if the original
proposal suggested a specific intention to reenact § §1
and 2 of the 1866 Act and maintain them independently
of the analogous provisions of the 1870 Act (i.e. §§16
and 17), that articulation was abandoned in favor of a
general wording more consistent with the views of
Senator Stewart.
-23-
but not aliens, under the 1866 statute would
continue. This protection had purposely been
omitted from §16 of the 187 0 Act.-^
21/— 'Senator Stewart answered a fellow Senator's
inquiry, as follows:
Mr. Pomeroy: Does the property of a
foreigner here descend under our laws?
Most of the States appoint a public
administrator who administers upon the
estates of foreigners differently from what
he does on the estates of citizens. Does
[S. 365] interfere with that?
Mr. Stewart: I think not.
k k k
Mr. Stewart: [S. 365] has nothing to do
with property or descent. We left that
part out of the law.
Cong. Globe, 41st Cong., 2d Sess. 1536 (1870).
The omission as to real property accords
with prevailing jurisprudence under Article IV, Sec. 2
of the Constitution, that only citizens had the right
to own real property. The omission of rights
respecting personal property from §16 is probably
explained by the fact that it was not a part of
"protection of the laws" at the time. Avins, Civil
Rights Act of 1866. supra. at 304.
-24-
Congress also sought to use the
enforcement machinery of the 1866 Act in
connection with §16 and other, voting rights
provisions of the Enforcement Act. Section 18
effected this purpose.
C. Section 1977 of the Revised Statutes Was
A Modified Reenactment of Section 16.
The language and history of §1977 of
the Revised Statutes of 1874 (the former
designation of §1981) show that it derives
only from §16 of the 1870 Act. Since Section
16 is indisputably a Fourteenth Amendment
statute requiring state action, and §5596 of
the Revised Statutes repealed §18 of the 1870
Act, §1981 cannot be invoked against purely
private acts of racial discrimination.
The language of §1977 is drawn
verbatim from the first portion of §16 of the
1870 Act, as was demonstrated in Justice
22/— Cong. Globe, 41st Cong., 2d Sess. 3560-3561
(May 18, 1870) (Senator Stewart).
-25-
White's dissenting opinion in Runyon, 427 U.S.
at 195 n.6.
The headnote notation which appears
in the margin next to §1977 of the Revised
Statutes confirms its origin.— / The notation
reads:
Ecrual rights under the law.
31 May, 1870, c. 114, s.
16, V. 16, p. 144.
^ / as noted by Justice White:
The title of 1981 was placed there
originally by the Revisers who compiled the
Revised Statutes of 1874. They did so
under a statute defining their
responsibilities in part, as follows: to
"arrange the [statutes] under titles,
chapters, and sections, or other subtitle
divisions with head notes briefly
expressive of the matter continued in such
divisions." 14 Stat. 75. (Emphasis added).
The headnote to what is now §1981 was
before Congress when it enacted the Revised
Statutes into positive law. It may
properly be considered as an aid to
construction, if the statutory language is
deemed unclear. [Citations omitted] .
427 U.S. at 193 n.3.
-26
The history of the Revised Statutes makes
clear that this final notation accurately
reflected the intention of Congress in
enacting the current statute.
1. The 1872 Report of the Commissioners
for Revision of the Statutes
Indicates That 51977 Was Derived
Only From §16.
As early as 1843, Congress expressed
a desire to revise the Statutes at Large,
which by then had become nine volumes of
unindexed and unorganized laws.— / Under the
Act of June 27, 1866, 14 Stat. 74, as reen
acted by the Act of May 4, 1870, c. 72, 16
Stat. 96, Congress empowered three Commis
sioners to revise the Statutes at Large and to
24/For a more complete discussion, see Dawn and
Feidler, The Federal Statutes - Their History and Use.
22 Minn. L. Rev. 1008 (1938); Burdick, The Revision of
the__Federal Statutes. 11 A.B.A.J. 187 (1925); 1
Superintendent of Documents, Checklist of United States
Public Documents 1789-1909. (3d ed. 1911) at 968-970,
1524-1525; Blodgett, The Revised Statutes of the United
States,_Read Before the Social Science Association of
Philadelphia, Dec. 16, 1875 as reprinted from the Penn
Monthly, January 1876.
-27-
make headnotes and marginal notes providing
guidance as to the origin, breadth, and
judicial interpretation of the revised
sections. Id.
[T]he Commissioners [were] to bring
together all statutes and parts of
statutes which, from similarity of
subjects, ought to be brought
together, omitting redundant or
obsolete enactments, and making such
alterations as may be necessary to
reconcile the contradictions, supply
the omissions and amend the
imperfections of the original text.
§2, 14 Stat. 75. (emphasis added).
Under §3, 14 Stat. 75, the Commis
sioners were to "suggest to Congress such
contradictions, omissions and imperfections as
may appear in the original text." Id., §3.
They also had that option of designating such
statutes for repeal. Id.
The future §1977 emerged from these
endeavors with the following headnote and
marginal notations:
-28-
Equal rights under the law.
31 May, 1870, c. 114, s.16,
v. 16, p .144
1 Abb. U.S. 28, 84, 338.
The headnote and marginal note, except for the
case citations, would appear next to §1977 of
the Revised Statutes.
The majority in Runyon mistakenly
relies on the absence of such a designation in
the Commissioner's Report— / to show that the
failure to cite the Civil Rights Act of 1866
occurred "either inadvertently or on the
assumption that the relevant language of §1 of
the 18 66 Act was superfluous." 427 U.S. at
167 n.8.
25/Revision of the United States Statutes as
Drafted by the Commissioners Appointed for That Purpose,
v.l, p. 85 (1872) (Library of Congress No. "KF 50.U5").
26/Id.at Title XXVI §§8, 24.
-29-
First, under §2, 14 Stat. 75, the
Commissioners were to make alterations only if
they found contradictions, omissions or
imperfections in the original text. There was
no such problem with §16 of the 187 0 Act.
Therefore, there was no reason to promise an
explanation.
Second, the majority in Runyon
suggests the Commissioners omitted §1 of the
1866 Act because it was "superfluous." That
may be; or, they may have viewed the 1866 Act
as obsolete insofar as §16 offered apparently
similar coverage. In either case, their
mandate allowed it. More importantly, it
shows an intention to eliminate §1 as a source
of the Revised Statutes.
A valuable insight into the thinking
of the commissioners comes from Benjamin
Vaughan Abbott, one of the three Commissioners
who submitted the 1872 Report.
-30-
In quoting the text of §1 of the
Civil Rights Act of 18 66 in his National
Digest. Abbott italicized certain words, but
not others. He explained:
The words italicized are embodied in
Rev. Stat. Section 1978; the other
portions of this section have been
superseded. either by later
enactments which have been embodied
in other sections of the Revision
(see tit. XXIV.) or by the 14 th
amendment of the Constitution.
1 Abbott's National Digest at 639 n.l (1884)
(emphasis added). Title XXIV contained the
provisions on Civil Rights, including §1977.
Thus, the sole citation of §16 of 1870 Act may
be explained by the Commissioners' perception
that the "later enactment" of §16 superseded
§ 1 of the 1866 Act.
j-iie ruiuier revisions
Durant Maintained or xn
The
.omas j .
"EgualProtection" Headnote of Future§1977.
After the Commissioners submitted
their report in 1872, Congress realized that
the Commissioners may have engaged in
31-
legislation. Thus, Congress stated in an Act
of March 3, 1873^ that its receipt of the
report should not "be construed as an approval
or adoption by Congress of any part of the
work of the Commissioners." Under authority
of this Act, Congress hired Thomas Jefferson
Durant to correct the Commissioners' excesses
and issue a report in the form of a bill.
H.R. 1215, 43rd Cong., 1st Sess. (1874).^/
Durant's report contained no
marginal notations,-^/ for none were required
under his mandate. Section 1977 only bore the
headnote, "Equal rights under the law."— /
Durant's accompanying report did not criticize
22/17 Stat. 579, ch. 241.
O O /
— ' See Durant, Report on Revision of Laws (13 pp.
untitled) (1873), Library of Cong., LL Rare Book coll.
■^•/unmarked Copy of T.J. Durant's Revision.
Reported Dec. 1873. Library of Cong., LL Rare Book
Coll, [hereinafter Durant's Revision].
^/jd.
-32-
the Commissioners' Report^/ with respect to
the future §1977
Congressional Joint Committee
members, as well as others, then canvassed
Durant's report for errors.— / The future
§1977 was left untouched. In December 1873,
Durant's report, absent marginal notations,
but with headnotes, went before Congress.— /
The headnote for §1977 (Title XXIV) was "Equal
rights under the law. "-^/
31/— Durant,Report on Revision of Laws.
^/Durant's Revision, Article XXIV, §1982.
•^/Blodgett, supra, at 11-13; E. g, . New York
Chamber of Commerce, Title No. 8, Revision of the
Commissioners' Draft (1873).
^ 2 Cong. Rec. (H) 810 (Jan. 21, 1874) and (H)
1210 (Feb. 4, 1874).
^/id.at 650 (Rep. Lawrence).
-33-
3. Representative Lawrence's Explana
tion of the Revision Supports the
Commissioners1 Interpretation of
§1977.
Representative Lawrence, a member of
the Joint Committee on the Revision of the
Laws, used the 1866 and 1870 civil rights laws
to illustrate how the revisers operated.— ^
Lawrence explained that:
In the reported draught of the
commissioners, as in Durant's
revision, act of May 31, 1870, is
very properly not treated as a
revision of the whole subject, and
hence as superceding the entire
original act. The commissioners . . .
and Mr. Durant . . . translate the
sections . .. from the acts of 1866
and 1870, so far as they relate to
a declaration of existing rights,
and confer a right of civil action
for their violation as follows:
Equal rights SECTION 1. All persons within
under the law. the jurisdiction of the United 2
2 Cong. Rec. 819-829 (1874). Copies of
Durant's revision had been printed and distributed to
Members of the House of Representatives. Representative
Lawrence apparently had a copy of the Commissioners'
draft in his possession, but it does not appear that
copies were given to the Members during the debates.
Id.
-34-
31 May, 1870,
ch. 144, §16,
vol. 16, p.
144.
1 Abb. U.S. 28,
84, 388.
States shall have the same
rights in every State and
Territory to make and enforce
contracts, to sue, be parties,
give evidence, and to the full
and equal benefit of all laws
and proceeding for the security
of person and property as is
enjoyed by white citizens, and
shall be subject to like
punishment, pains, penalties,
taxes,licenses, and exactions
of every kind, and to no other.
Rights of
citizens in
respect to real
and personal
property
9 April, 1866,
ch. 31, §1, vol.
14, p. 27.
SEC.2. All citizens of the
United States shall have the
same rights, in every State and
Territory, as enjoyed by white
citizens thereof to inherit,
purchase, lease, sell, hold,
and convey real and personal
property.
Civil action for
deprivation of
rights.
20 April, 1871,
ch. 31, §1, vol.
14, p. 27.
SEC.3. Every person who, under
color of any statute, ordi-
ance, regulation, custom, or
usage of any State or Ter
ritory, subjects, or causes
to be subjected, any citizen of
the United States or other
person within the jurisdiction
thereof to the deprivation of
any rights, privileges, or
immunities secured by the
Constitution and laws, shall be
liable to the party injured in
an action at law, suit in
equity, or other proceeding for redress.
-35-
2 Cong. Rec. 828.-̂ -̂ After noting that the
second sentence of §16 of the 1870 Act (re
ferring to the taxation of immigrants) was
retained in Durant's version elsewhere in his
volume, Rep. Lawrence then remarked:
A comparison of all these could
present a fair specimen of the
manner in which the work has been
done, and from these all can judge
— ^Before Congress passed 18 Stat. (Pt. Ill) 113,
on May 20, 1874, Rep. Lawrence explained,"[M]arginal
references are all omitted in Durant's revision... When
the [Revised Statutes] shall be adopted by Congress,
provision can be made for adding in its publication the
marginal references and footnotes suggested." 2 Cong.
Rec. 827 (January 21, 1874).
-36-
of accuracy of the translat-
There was no further discussion of these
provisions on the record. The bill enacting
the Revised Statutes was passed by the House,
id. at (H) 2713-2714, and by the Senate after
only cursory discussion. Id. at (S) 4284-4286.
— ̂2 Cong. Rec. 828. Rep. Lawrence said
earlier in his remarks, that following the adoption of
the Fourteenth Amendment, §§16 and 17 of the 1870 Act
reenacted "in modified words the substance of the
original civil-rights sections." Id. at 827.
Lawrence's remarks during the debates over the 1866
Civil Rights bill show that he viewed the original
provisions as directed against state-imposed
disabilities and actions taken under color of law.
Cong. Globe, 39th Cong., 1st Sess. 1832-1836 (1866).
See, infra, at 82-83. Thus, his reference to this
"reenactment" does not signify that the 1870 reenactment
of the Civil Rights Act reached purely private conduct.
Also, he made no effort to reconcile this explanation
with the reenactment of the 1866 Act in Section 18.
-37-
4. The Secretary of State's
Addition of Marcrinal Notations
Further Supports The "State
Action" Interpretation of__i1977,
Shortly before the Revised Statutes
were approved by President Grant,— / Congress
authorized the Secretary of State to complete
the headnotes and marginal notations and
thereafter to cause the publication of the
Revised Statutes.^/ Under this bill, the
See 2 Cong. Rec. 5388 (June 22, 1874).
— ^18 Stat. (Pt. Ill) 113, 43rd Cong., 1st Sess. ,
ch. 333, §2 (1874), provided:
That the Secretary of State is hereby
charged with the duty of causing to be
prepared for printing, publication and
distribution the revised statutes of the
United States enacted at this present
session of Congress; that he shall cause to
be conroleted the head notes of the several
letters and chapters and the marginal notes
referring to the statutes from which each
section was compiled and repealed by said
revision: and references to the decisions
of the courts of the United States
explaining or expanding the same, and such
decisions of State courts as he may deem
expedient, with a full and complete index
to the same. And when the same shall be
(continued..■ )
-38-
published volumes were to be "legal evidence
of the laws and treaties therein contained."
18 Stat. (Pt. Ill) 113. It is evident
Congress intended that the notation next to
§1977 should be relied upon as describing the
sources of the statute. In any case, the
headnote, "Equal rights under the laws,"
(. . . continued)
completed, the said Secretary shall duly
certify the same under the seal of the
United States, and when printed and
promulgated as hereinafter provided, the
printed volumes shall be legal evidence of
the laws and treaties therein contained, in
all the courts of the United States, and of
the several States and Territories,
(emphasis added).
Of course, in enacting the Revised
Statutes, Congress included §5596 which provided:
All acts of Congress passed prior to said
first day of December, one thousand eight
hundred and seventy-three, any portion of
which is embraced in many sections of said
revision, are hereby repealed, and the
section applicable thereto shall be in
force in lieu thereof....
-39-
remained,^/ and when, on February 22, 1875,
Secretary of State Hamilton Fish certified the
Revised Statutes, the only marginal notation
was that relied on by Justice White. Revised
Statutes of the United States. Washington,
G.P.O. (1875) (National Archives - Diplomatic
Branch).
It is clear from this exposition
that no right of action to remedy purely
private acts of discrimination can be inferred
from the passage of §1977 of the Revised
Statutes. The 1870 Act was not treated "as a
revision of the whole subject" because the
reference to property rights in the 1866 Act
was now specifically treated in §1978.
■^^The engrossed Act, dated June 22, 1874 bearing
the autograph signature of James G. Blaine, Speaker of
the House, Matthew H. Carpenter, President of the
Senate, and President Grant, also contains headnotes,
but no marginal notations. This copy also bears the
stamp of the Secretary of State, signifying he had
received the engrossed act and would prepare it for
printing. 2 Cong. Rec. 5388 (1874). The engrossed Act
is currently deposited in the National Archives.
-40-
Representative Lawrence's remarks do not imply
a continued vitality for §1 of the Civil
Rights Act authorizing suit for acts unrelated
to official conduct or laws. By including in
the record the future §1979, which was derived
from Section 1 of the Ku Klux Klan Act of
1871^/ and contained a "color of law"
requirement for a civil action, Rep. Lawrence
made plain that the redress contemplated for
violation of §§1977 and 1978 was to have a
state action component. This would be
consistent with the views expressed by Senator
Stewart in 1870 emphasizing a Fourteenth
Amendment objective for §16.
But there is more. The civil rights
enactments of April 9, 1866, May 31, 1870 and
April 20, 1871, also contained criminal
42/
13.
Act of April 20, 1871, ch. 22, §1, 17 Stat.
-41-
sanctions.^/ In Mr. Durant's draft, Rep.
Lawrence pointed out, the three provisions,
each worded differently and possibly covering
different crimes, were combined into one
provision (§5577) made applicable to
violations of rights in each of the three
acts. 2 Cong. Rec. 828 (Jan. 21, 1874). The
Revisers also had translated the provision of
the three statutes into one Section, employing
different language. Rep. Lawrence criticized
the Reviser's source note as being inadequate:
Their marginal reference is only to
act of "31 May 1870, ch. 114, sec.
17, vol 16, p. 144" and certainly is
not sufficiently comprehensive to
include all covered by the first
section of the "Ku Klux Act" of
April 20, 1871, and the omission is
not elsewhere supplied in the
published volumes of their
revisions.
Id.
43 /— These were, respectively, §2 of the Act of
April 9, 1866, §17 of the Act of May 31, 1870, and §1
of the Act of April 20, 1871.
-42-
Rep. Lawrence made no such criticism
of the marginal reference beside the text of
future §1977. Specifically, he did not
complain that no reference was made to the
1866 Act. Clearly, he saw §16 as the sole
source in the Revised Statutes.
D* Petitioner's Argument That §1981
Authorizes Suits For Private
Discrimination By Incorporating
Section 1 of the Civil Rights ActsIs Unoersuasive.
Petitioner nevertheless contends
that Justice White erroneously relied on the
volume of the Revised Statutes published after
the 1874 enactment, and that the marginal
notes in an earlier draft prepared by the
Revisers, which were before Congress when it
enacted the revision into positive law,
contain citations to cases allegedly showing
that §1977 derived from §1 of the 1866 Civil
Rights Act as well as §16 of the Enforcement
Act of 1870. (Pet. Br. at 9). This argument
lacks merit.
-43-
1. Petitioner's Arguments Are
Irrelevant.
None of this criticism gainsays
Justice White's points that (a) the language
of §1977 is drawn from §16 rather than §1, and
(b) that the headnote of §1977, "Equal rights
under the law.", prepared pursuant to the
statutory directive, is plainly descriptive of
an equal protection object. 427 U.S. at 193 n.
3, 197 n.6.
Further, whatever draft may have
been before it in 1874, Congress clearly
authorized the "printed volumes" of the
Revised Statutes to include marginal notes
prepared at the direction of the Secretary of
State. When published, the marginal notes
read exactly as Justice White described. In
any event, Petitioner's reliance on the
missing citations is misplaced.
-44-
2. Despite Petitioner's
Contention, The Citations
in the Commissioners1 1872
Report Imply A State
Action R e q u i r em en t
Consistent with §16.
Contrary to Petitioner's content
ions, the citations to the decisions in United
States v. Rhodes, 27 F. Cas. 785, 1 Abb. U.S.
28 (C.C.D. Ky. 1866) (No. 16, 151), and In re
Turner, 24 F. Cas. 337, 1 Abb. U.S. 84 (C.C.D.
Md. 1867) (No. 12, 247), contained in the
Revisers' marginal notes next to the proposed
§1977, do not lead to a conclusion that the
section is derived from the 1866 Civil Rights
Act and was intended to permit suits for
purely private acts of discrimination. (Pet.
Br. at 5 - 7 ) / The citations to these cases
44 /— Rhodes involved the prosecution of a white man
for burglary of the home of a black citizen. Under the
laws of Kentucky, the victim was prohibited from
testifying in court against the accused, because of her
color. The Court (per Swayne, C.J.) held that removal
to federal court was appropriate under §3 of the Civil
Rights Act of 1866. 27 F.Cas. at 787, 789, 794.
(continued...)
-45-
in the Revisers' 1872 draft do not show that
§1981 was intended to authorize suits for
private acts of racial discrimination as a
legacy of the 1866 Act, or that Congress so
perceived it. Indeed, Rhodes illustrated that
"the court took jurisdiction on the ground
that the statute of Kentucky - discriminated
against colored citizens." 2 Cong. Rec. (H)413
(Jan. 6, 1874) (Rep. Lawrence) (emphasis
added), whereas Turner was "[t]he case of the
( . . .continued)
In Turner. a habeas corpus proceeding,
Maryland had adopted a new Constitution abolishing
slavery, effective November 1, 1864. The petitioner,
a youth, who had been a slave of the respondent, and
others were collected together under local authority and
were bound as apprentices to their former masters. The
terms of petitioner's indenture which was "claimed to
have been executed under the laws of Maryland relating
to Black apprentices," did not provide for education and
permitted petitioner to be assigned and transferred at
the master's will to any person in the county. 24 F.
Cas. at 339. The Court (per Chase, C.J.), found that
the arrangement was an involuntary servitude barred by
the Thirteenth Amendment and violated the "full and
equal benefit of all laws and proceedings for the
security of persons and property as is enjoyed by white
citizens, as provided by the 1866 Act." Id. The
petitioner was ordered discharged. Id. at 340.
-46-
apprentice slave. held under the law of
Maryland, liberated by Chief Justice Chase on
a writ of habeas corpus under [the Thirteenth
Amendment]..." Slaughter House Cases. 83
U.S. (16 Wall.) 36, 69 (1873) (emphasis
added). Accordingly, they are consistent
with a view that deprivations under color of
law and disabling state statutes were the
target of §1977.^/
4 5 / The petition in Turner was filed on September
20, 1867. 24 Fed. Cas. at 338. By Act of February 5,
1867, 14 Stat. 385, Federal courts were given authority
to grant writs of habeas corpus for persons held under
state authority "in all cases where any person may be
restrained of his or her liberty in violation of the
constitution, or any treaty or law of the United
States---" It appears that the writ in Turner was
issued under this statute. Id. at 340. Cjh Ex Parte
Boliman, 8 U.S. (4 Cranch) 75, 94 (1807)(the power to
issue the writ by any United States court "must be given
by written law")(per Marshall, C.J.).
46/ . .Petitioner does not mention the third case
cited by the Revisers, The Live Stock, etc, Ass’n v. The
Crescent City, etc. Co.. 1 Abb. U.S. 388 (C.C.D. La.
1870) (later known as The Slaughter House Cases. 83 U.S.
36 (1973) at the Supreme Court level). Like Turner and
Rhodes, this case involved state action,i.e., a statute
creating a slaughter house monopoly in New Orleans.
-47-
In sum, §1977 of Revised Statutes,
the present §1981, was based upon §16 of the
1870 Enforcement Act, which required state
action. Section 16 was seen to supercede §1
of the 1866 Act as to those matters covered by
both.
In fact, however, the 1866 statute
never did authorize suits for private acts of
discrimination.
We consider this next.
-48-
POINT II
THE CIVIL RIGHTS ACT OF 18 66 WAS INTRODUCED TO
REMOVE THE LEGAL DISABILITIES IMPOSED BY
STATE LAW AGAINST BLACK CITIZENS
The Theory That The Civil Rights Act
of 1866 Was Intended To Reach
Private Action Is Inconsistent With
The Political Dynamics Of The Early
Reconstruction Era.
The passage of a federal statute
that prohibited private racial discrimination
would have been improbable under the political
conditions that existed in 1866. Admittedly,
the dominant Republican party was concerned
with the condition of the freed slaves in the
Southern states. The Civil Rights Act,
however, applied to both Northern and Southern
states. Given this nationwide applicability,
other factors limited the scope of federal
legislation that Republicans were willing to
consider.
One of the most important of these
factors was a widely shared desire to limit
the role of the federal government in everyday
-49-
life. Although rejecting the Confederate
theory of state sovereignty, most Republicans
nonetheless believed that Congress should
leave the regulation of most affairs to the
states.^7 Condemnations of the idea of
centralization reverberated through the
Reconstruction debate. The views of
Republican Representative Thomas T. Davis of
New York — later a supporter of the Civil
Rights Act in its final form — are typical:
[T]he distinguishing feature in our
Government is this: the Federal
Government has its peculiar and
restrictive duties. It is a government
of limited power and authority, extending
over the whole country...but within that
jurisdiction are erected many different
States bound to allegiance to the Federal
Government in all matters pertaining to
the Union, yet in respect of social
arrangement, in respect of the rights of
property and control of persons, are
entirely independent. And it is this
feature which has given greater security
and greater liberty to this country than
-^-^Maltz, R econ stru ctio n Without R evolution :
Republican Civil Rights Theory In The Era of_the
Fourteenth Amendment. 24 Houston L. Rev. 221, 232-236
(1987) [hereinafter Maltz, Reconstruction!.
-50-
was ever conferred before by any system
of government
devised.
which human wisdom has
Cong. Globe, 39th Cong., 1st Sess. 1083
(1866). Influential Republican Senator James
W. Grimes of Iowa expressed similar
sentiments:
During the prevalence of the [Civil War]
we drew to ourselves here as the Federal
Government authority which had been
considered doubtful by all and denied by
many of the statesmen of this country.
That time, it seems to me, has ceased and
ought to cease. Let us go back to the
original condition of things, and allow
the States to take care of themselves as
they have been in the habit of taking
care of themselves.
Id. at 2446 (1866). See also, e .a.. Harper1s
Weekly. November 10, 1866 at 706; Open Letter
from Carl Schurz to William Fessenden,
Cincinnati Commercial. May 18,
April 5,
1866, p . 2;
Sprinafield Republican. 1866, p. 4;
H. Hyman, A More Perfect Union: The Impact of
the Civil War and Reconstruction on the
Constitution. 300-301, 393-396 (1973).
-51-
If the Civil Rights Act had been
intended to regulate purely private activity,
it would have been totally inconsistent with
this philosophy. The Bill would not only have
effected a truly revolutionary change in the
federal system but would also have been
entirely inconsistent with the very natural
rights theory which the Republicans sought to
implement. Maltz, Reconstruction. supra, at
262.^/ Implicit in the concept that parties
should be free to contract and to have the
courts enforce voluntarily concluded
agreements, is that the parties are free to
refuse to enter into contracts. 427 U.S. at
193-195 (White, J., dissenting). To infer an
intention to interfere with private decision-
— ^TheCivil Rights Act was intended to guarantee
certain limited rights to all citizens. These derived
from the "natural" rights suggested by the Court in
Corfield v. Coryell. 6 F. Cas. 546 (C.C.E.D. Pa. 1823)
(No. 3, 230), cited by Sen. Trumbull in the debates.
Cong. Globe, 39th Cong., 1st Sess. 474-475 (Jan. 29,
1866) .
-52-
making generally would be inconsistent with
basic Republican political theory. Maltz,
Reconstruction. supra, at 262.
In essence, the decision in Runyon
would have had an early Reconstruction Era
Congress applying federally-created standards
to every private transaction which involves
nonwhite parties. These standards would have
been applicable in the Northern states as well
as the vanquished Southern states. Such an
interpretation is hardly consistent with the
expressed Republican commitment to the concept
of a limited federal government.
Further, the very idea of a general
prohibition on racial discrimination in
private transactions was entirely foreign to
the American political system when the Civil
Rights Act was being considered. No state, no
matter how strongly Republican, had adopted
such a statute in 1866. Also, while Congress
had abolished legally-created distinctions
-53-
based on race in the District of Columbia, a
jurisdiction in which issues of federalism
were not important,^-/ the federal government
had not seriously considered prohibiting
private discrimination in the District. Thus,
a general prohibition on private racial
discrimination would have been an entirely
novel legal concept in 1866.
^ See M.L. B en ed ic t , A Compromise o f
C o n gre ss io n a l R epublicans and R econstruction
145-146 (1974).
P r i n c i p l e :
1863-1869
■^//Some efforts had been made to eliminate racial
discrimination in public accommodations --particularly
common carriers. See Jones v. Alfred H. Mayer Co,. 392
U.S. 409, 474 (1968) (Harlan, J., dissenting); Maltz,
'Separate But Equal' and the Law of Common Carriers in
the Era of the Fourteenth Amendment. 17 Rut. L.J. 553
(1986) . State authority over such facilities was based
on the theory that operators of railroads, inns and the
like were viewed as occupying "a sort of public office,"
with "public duties to perform." New Jersey_Steam
Navigation Co. v. Merchants Bank. 47 U.S. (6 How.) 344,
382-383 (1848). See also Derrv v. Lowry, 6 Phila. Rep.
30, 31 (Common Pleas 1865); Maltz, supra, at 566-567.
Thus prohibitions on racial discrimination in public
accommodations provide little authority for similar
restrictions on private action generally. Brief Amicus
Curiae of Eric Foner, et al. , at 21 nn. 17 and 18
erroneously relies on such cases to support their
(continued...)
-54-
Such a prohibition would have been
considered an extremely radical action to say
the least. Yet the Civil Rights Act was
generally considered a moderate Reconstruction
measure. M.L. Benedict, supra, at 148-149,
164-165.
The Act was drafted by Senator Lyman
Trumbull of Illinois, one of the more
conservative mainstream Republicans in the
39th Congress. Id. at 149 n.53. Further, it
was supported by a broad coalition of
Republicans, including men such as
Representative Davis and Senator William M.
Stewart, both of whom opposed early attempts
to explicitly arm Congress with the power to
( . . . continued)
contrary and equally erroneous conclusion that §1981
should apply to private conduct. See Avins, The Civil
Rights Act of 1875: Some Reflected Light On the
Fourteenth Amendment and Public Accommodations . 66 Col.
L. Rev. 873 (1966), and Avins, The Civil Rights Act of
1875 and "The Civil Rights Cases" Revisited: State
Action. the Fourteenth Amendment, and Housing, 14
U.C.L.A. L. Rev. 5 (1966).
-55-
reach private activity. See Cong. Globe, 39th
Cong., 1st Sess. 1083-1087 (1866) (Davis); Id.
at 1082 (Stewart). None of these influential
legislators would have been likely to endorse
a radical statute.
In short, even if there were no
direct evidence on the point, the political
dynamic that generated the Civil Rights Act of
1866 renders the Runyon interpretation
implausible.
The case against applying section
1981 to private activity need not be based
solely on inference and circumstantial
evidence. During the course of the debate
over the Civil Rights Act, supporters
consistently and explicitly denied any
intention to regulate private activity.
The debate in Congress and journalistic
commentary show that Republicans adopted
a moderate position which called for an
intrusion of federal power only part of
the way into the civil rights field.
Republican lawmakers intended to redress
and place restrictions upon state actions
in relation to Negroes, not supersede
-56-
state power over private actions that
violated blacks' rights. Subject to the
conditions in the civil rights bill,
which were designed to prevent the kind
of flagrant discrimination passing beyond
mere diversity that the black codes
represented, states would remain the
principal centers of republican
government. The bill thus embodied a
theory of state action as a limitation on
federal power.
Belz, A New Birth of Freedom. The Republican
Party and Freedmen1s Rights, 1861-1866 166
(1976) .
As we discuss below, the Civil
Rights Act of 1866 itself was a statute of
limited scope. Its proponents did not
envisage that it would be applied to remedy
acts of purely private discrimination.
Rather, they intended to protect United States
citizens by assuring that they would not be
deprived of essential rights through disabling
legislation or adverse enforcement efforts.
To better appreciate the context in which the
Act arose, it is important to review the pre-
Civil War laws which deprived the enslaved
-57-
Negro of his most fundamental civil rights,
for they show the evil which the Civil Rights
Act sought to remedy.
B. Ante-Bellum Laws Deprived Slaves of
Fundamental Legal Capacity.
The laws which disabled slaves
before 1865 left them bereft of elemental
rights accorded citizens throughout the
country. "A slave ... has no civil rights or
privileges. He is incapable of making or
discharging a contract . . .," stated Justice
Story. Emerson v. Howland. 8 F. Cas. 634
(C.C.D Mass. 1816) (No.4,441). Similarly, in
Jenkins v. Brown. 25 Tenn. 299 (1845) , the
court wrote:
It is unquestionably true, that a slave
has no right to acquire and hold property
or money; that he and every thing of his
earnings belongs to his master; and that
he can make no contract which is
obligatory upon himself, or the person
contracted with.
Id. at 302 (emphasis added). Another court,
in Bailey v. Poindexter's Executor. 14 Va. (55
-58-
Gratt) 132 (1858) , quoting 2 Kent,
Commentaries 253, similarly observed:
[Slaves] cannot take property by descent
or purchase, and all they find and all
they hold belongs to the master. They
cannot make lawful contracts, and they
are deprived of civil rights.
Id. at 190 (emphasis added).
As one commentator has concluded:
In contrast with the rights of citizens
of the United States, a slave did not
have the capacity to make a contract on
his own account... and an executory
contract with a slave acting on his own
account was void. . . even with his own
master.-^/
Continuing, the author notes:
Nor could a slave who made any promise in
writing be sued thereon, even after he
became free. . . and even if the promissory
note sued on was the inducement for his
own emancipation.... Conversely, a
promissory note given to a slave for
money was void and could not support an
action.... As the Supreme Court of
Alabama remarked:____ "The status of a
slave, under our laws, is one of entire
abnegation of civil capacity .... He has
no authority to own anything of value.
^ A v l n s . The Civil Rights Act of 1866. supra, at
280 (citations omitted).
-59-
nor can he convey a valuable thing to
another.,,2A/
Moreover, prohibitions against
buying from, selling to, or borrowing money
from a slave were enforced by criminal
statutes, to further suppress any spirit of
personal freedom in slaves.-^/ Slaves, then,
were "utterly disabled." Fable v. Brown. 11
S.C. Eq. (2 Hill Eq.) 378, 391-92 (1835).
It was against this background that
Congress enacted the Civil Rights Act of 1866.
C. The Civil Rights Act of 1866 Nullified
State Laws Disablina Freedmen and Granted
Essential Leaal Capacity, But Did Not
Include A Cause Of Action For Private
Acts Of Discrimination.
1. The Statute
Section 1 of the Civil Rights Act of
1866 guaranteed to all United States citizens
— ^Id.at 281 (emphasis added; citations omitted).
The slave's earnings as well as other property belonged
to the master. Id. at 282.
^ I d . a t 283-84.
-60-
"the same right" as was enjoyed by white
citizens to make and enforce contracts and
exercise other specified rights. As Justice
White concluded in Runyon. with respect to
§1981:
The state by its terms does not
require any private individual or
institution to enter into a contract
or perform any other act under any
circumstances; and it consequently
fails to supply a cause of action by
respondent students against
petitioner schools based on the
latter's racially motivated decision
not to contract with them.
427 U.S. at 194-195 (footnote omitted)
(dissenting opinion). Further, §2 of the 1866
Act, containing penal provisions, by its terms
only applied to actions taken under "color of
law." Finally, as Judge Garth has
demonstrated at considerable length in Mahone
v. Waddle. 564 F.2d 1018 (3d Cir. 1977),
Section 3 of that Act did not "confer upon the
federal courts original jurisdiction to
entertain private claims under that Act." Id.
-61-
at 1044, 1045-1049 (dissenting opinion). It
is strange, indeed, that Congress would have
created a right to sue for private acts of
racial discrimination in a statute
specifically recognizing the short comings of
state court proceedings without providing a
federal forum in which to bring those claims.
Yet, as Judge Garth concludes, it was not
until 1871, with the passage of the Ku Klux
Klan Act that a federal remedy would have been
provided for §1 violations. Id. at 1038 —
1044.-^/ And then, the remedy was limited to
deprivations "under color of any law,
ordinance, regulation, custom or usage...."
Id. at 1041, citing Rev. Stat. §§564 (12), 629
■ ^ / s e e a l s o Sen. Lawrence's comments on the
r e l a t i o n s h ip between the cu rren t §§1981, 1982 and 1983,
s u p r a , a t 33-35.
-62-
(16) .55/
2• The Civil Rights Act of 1866
a. The Debates in the Senate
According to Senator Lyman Trumbull,
the Chairman of the Senate Judiciary Committee
and Sponsor of the bill-^/, S . 61 (the eventual
Civil Rights Act of 18 66) was intended to
secure the inherent rights of freemen, as
authorized under the Thirteenth Amendment.
Cong. Globe, 39th Cong., 1st Sess. 474 (Jan.
29, 1866). The principal obstacle to
attaining this goal, he said, were the black
codes:
And of what avail will it now be
that the Constitution of the United
States has declared that slavery
shall not exist, if in the late
slave holding States laws are to be
— / C f . 42 U.S.C. §1343(3) and §1983, the latter
being derived from Rev. Stat §1979, which also
originated in §1 of the Klu Klux Klan Act. Id. at 1037-
1038 n.l. ~
56/"It is the sponsor that we look to when the
meaning of the statute is in doubt." Schwegmann Bros,
v. Calvert Distillers Coro.. 341 U.S. 384 (1951)
-63-
enacted and enforced depriving
persons of African descent of privi
leges which are essential to freemen
Id. After addressing some of the abuses found
under the recent laws of Mississippi and South
Carolina, Senator Trumbull continued:
Since the abolition of slavery, the
Legislatures which have assembled in
the insurrectionary States have
passed laws relating to the freed-
men, and in nearly all the States
they have discriminated against
them. They deny them certain
rights, subject them to severe
penalties, and still impose upon
them the very restrictions which
were imposed upon them in
consequence of the existence of
slavery, and before it was aboli
shed. The purpose of the bill under
consideration is to destroy all
these discriminations, and to carry
into effect the constitutional amen
dment .
I d : ^ See also id. at 588-89 (Feb. 1, 1866)
^ T h i s theme was not new to Senator Trumbull. On
December 13, 1865, addressing a bill (S.9) introduced
by Sen. Wilson (Mass.), an early civil rights measure
which failed, Trumbull said:
The second clause of f the thirteenth]
amendment was inserted for some— purpose,
and I would like to know of the Senator
(continued...)
-64-
. . . continued)
from Delaware for what purpose? Sir, for
the purpose and none other, of preventing
State Legislatures from enslaving, under
any pretense, those whom the first clause
declared to be free. It was inserted
expressly for the purpose of conferring
upon Congress authority by appropriate
legislation to carry the first section into
effect.
Id. at 43 (emphasis added).
Similarly, in connection with the Freed-
men's Bureau Bill (S.60), a companion measure to the
Civil Rights Act which would pass in Congress, but meet
its demise in a Presidential veto, Trumbull repeatedly
viewed the black codes as badges and incidents of
slavery, abolished by the Thirteenth Amendment. Id, at
322 (Jan. 19, 1866). He also made clear that the
annulment of these laws was the common object of the
Civil Rights Act:
If— in order to prevent slavery Congress
deem it necessary to declare null and void
all laws which will not permit the colored
man_£°_contract, which will not permit him
£2— testify,_which will not permit him to
buy and sell, and to go where he please, it
has the power to do so. and not only the
tower, but it becomes its duty to do. That
is what is provided to be done by this
bill. Its provisions are temporary; but
there is another bill on vour table.
somewhat akin to this , which is intended to
be permanent, to extend to all part of the
country,__and to protect persons of all
races in equal civil ri ghi-g
(continued...)
-65-
(Rep. Donnelly) (describing black codes in
southern states).
Trumbull proceeded to describe Sec
tion 1 of the Bill, which he called "the basis
of the whole bill." Id. at 474. After
noting his proposal to amend §1 by adding a
preliminary phrase declaring that all persons
of African descent shall be citizens of the
United States, he stated that civil or natural
liberty was the right of every citizen:
(. . . continued)
Id. (emphasis added). Senator Wilson agreed:
[T]he amendment to the Constitution
empowers us to pass the necessary
legislation to make them free indeed; and
the Senator [Trumbull] has a bill that is
to follow this, and is to be passed I
think, annulling these black codes and
putting these people under the protection
of just and equal laws.
Id. at 340 (Jan. 22, 1866)
^ T h e remaining sections contained "necessary
machinery to give effect to what are declared to be the
rights of all persons in the first section...." Id.
-66-
... I take it that any statute which
is not equal to all, and which depr
ives any citizen of civil rights
which are secured to other citizens,
is an unjust encroachment upon his
liberty; and is, in fact, a badge of
servitude which, by the Constitution
is prohibited.
Id. (emphasis added).
Senator Trumbull then considered
Section 2 of the Bill. (See App. at 1). This
section was part of the "machinery to carry
[Section 1] into effect." Id. at 475
According to Trumbull, "A law is good for
nothing without a penalty, without a sanction
to it, and that is to be found in the other
sections of the bill." Id.— / Thus, this
section "merely punishes persons who violate
what it is admitted that they ought not to
59/— The Court in the Civil Rights Cases. 109 U.S.
3 (1883), would describe §2 as "really the effective
part of the law." Id. at 16. Its genesis is discussed
in Screws v. United States. 325 U.S. 91 (1945), United
States_v. Classic. 313 U.S. 299 (1941); United States
v. Williams. 341 U.S. 70 (1951).
-67-
violate." Id. at 605 (Feb. 2, 1866) (Sen.
Trumbull).
The third section, Senator Trumbull
described in part, as follows:
The third section of the bill provi
des for giving to the courts of the
United States jurisdiction over all
persons committing offenses against
the provisions of this act, and also
over the cases of persons who are
discriminated against by state law
or customs.
Id. at 475 (emphasis added). Concluding his
explanation, Senator Trumbull said:
It may be assailed as drawing to the
Federal Government powers that prop
erly belong to the "States;" but I
apprehend, rightly considered, it is
not obnoxious to that objection. It
will have no operation in any State
where the laws are equal, where all
persons have the same civil rights
without regard to color or race. It
will have no operation in the State
of Kentucky when her slave code and
all her laws discriminating between
persons on account of race or color
shall be abolished.
Id. at 476. See also id. at 599-600 (Feb. 2,
1866) ? Id. at 602 (Sen. Lane) ; Id. at 603
(Sen. Wilson).
-68-
Just before the Senate voted on the
measure, Senator Trumbull stated:
Agreeing as I do... that all slave
codes fall with slavery, that it is
the duty of the States to wipe out
all those laws which discriminate
against persons who have been
slaves, yet if they will not do it,
and Congress has authority to do it
under the Constitutional amendment,
is it not incumbent on us to carry
out that provision of the Constitu
tion? That is all we propose to do.
Id. at 604. The bill carried 33 to 12. Id.
at 606-607.
b . The Debates in the House of Repre
sentatives
The House debates following Senate
passage reflect a similar purpose. Represen
tative Wilson of Iowa, Chairman of the House
Judiciary Committee declared "It will be
observed that the entire structure of this
bill rests on the discrimination relative to
civil rights and immunities made by the States
on 'account of race, color or previous
condition of slavery.'" Id. at 1118 (March 1,
-69-
1866) (emphasis added). "[W]e may protect a
citizen of the United States against a
violation of his rights by the law of a single
State." Id. at 1119.̂
Representative Cook of Illinois
added his voice:
Now sir, I am prepared, for myself,
to say that when those rights which
are enumerated in this bill are
denied to any class of men on
account of race or color, when they
are subject to a system of vagrant
laws which sells them into slavery
or involuntary servitude, which
operates upon them as upon no other
part of the community, they are not
secured in the rights of freedom.
* * *
^Later, Rep. Wilson would ask in debate:
And if they ate entitled, as citizens of
the United States, to those rights,^ are
they entitled to protection of those rights
from the hands of Government? And should
a State enact laws and attempt to enforce
them which will deprive the citizens of the
United States of those rights, may we not
intervene to protect them in spite of those
laws of the State?
Id. at App. 157 (March 8, 1866).
-70-
Anv combination of men in his
neighborhood can prevent him from
having any chance to support himself
by his labor. They can pass a law
that a man not supporting himself by
labor shall be deemed a vagrant, and
that a vagrant shall be sold.
Id. at 1124 (emphasis added) ^
Representative Thayer, making his
point by the effective use of repetition,
observed later the same day:
Sir, if it is competent for the new-
formed Legislatures of the rebel
States to enact laws which oppress
this large class of people who are
^-^Decrying such laws, and noting ruefully that
there was no possibility that "these States will secure
[the freedman] in those rights" specified in the bill
and that the states had, "already spoken through their
Legislatures" and produced acts which "have been set
aside by [federal] military commanders," Rep. Cook
announced:
To my mind the conclusion is irresistible
that the second section of [the
Thirteenth] amendment of the Consti
tution. . . gives us the right to protect
these men against precisely such a system
of legislation as the one to which I have
referred. If it does not it is worth
nothing.
Id. (emphasis added).
-71-
dependent for protection upon the
United States Government, to retain
them still in a state of real
servitude; if it is practicable for
these Legislatures to pass laws and
enforce laws which reduce this class
of people to the condition of
bondmen; laws which prevent the
enjoyment of the fundamental rights
of citizenship; laws which declare
for example, that they shall not
have the privilege of purchasing- a
home for themselves and their
families; laws which impair their
ability to make contracts for labor
in such manner as virtually to
deprive them of the power of making
such contracts, and rini which they
declare them vagrants because they
have no homes and because they have
no employment; I say, if it is
competent for these Legislatures to
pass and enforce such laws, then I
demand to know, of what practical
value is the amendment abolishing
slavery in the United States?
Id. at 1151 (emphasis added); See id. at 1152,
1153 (referring to the "tyranny of laws"
passed by the reconstructed legislature of a
number of Southern States which would destroy
the liberty of freedmen) . See also id. at
1160 (Rep. Windom, Minn.) (pointing to the
"wrongs . . . inflicted upon the freedmen— by
-72-
communities and states” under the black codes
and the lack of protection received from civil
authorities in their states)
Rep. Shellabarger (Ohio), in the
days just before the House vote on S.61,
stated that the "whole effect" of Section 1
but to require that whatever iof
these enumerated riqhts andobliqations are imposed by Statelaws shall be for and upon all
based on race or former condition in slavery.
* * *
[Section 1] secures - not to all
citizens, but to all races as races
who are citizens - equality of
69/— 'Representative Raymond of New York, who would
oppose the measure, added:
And now, as to the particular bill which we
are discussing, it is intended to secure
these citizens against injustice that may
kg_done them in the courts of the State
within which they mav reside.____it is
intended to prevent unequal legislation in
those States affecting them injuriously.
That is a high and proper object.
Id. at 1267 (March 8) (emphasis added).
-73-
protection in those enumerated civil
rights which the States may deem
proper to confer upon any races.
* * *
If the State may abridge or destroy
the rights of citizenship which the
United States confers and is bound
to secure, and must even levy war to
protect against the slightest
outrage by a foreign government,
then the United States is no
nation....It must here be noted
that, the violations in citizens1
rights, which are reached and
punished by this bill, are those
which are inflicted under "color of
law11 & c. The bill does not reach
mere private wrongs, but only those
done under color of State authority?
and that authority must be extended
on account of the race or color. It
is meant, therefore, not to usurp
the powers of the States to punish
offenses generally against the
rights of citizens in the several
States, but its whole force is
expended in defeating an attempts
under State laws, to deprive races
and the members thereof as such— of
the rights enumerated in this act.
This is the whole of it.
-74-
Id. at 1293-1294 (March 9, 1866) (emphasis
added)
— ^Representative Shellabarger's comments appear
to reflect an understanding evident elsewhere in the
Congressional debates that the scope of Section 2 of the
bill was coextensive with Section 1. Thus, in an
exchange with Representative Loan on why the "color of
law" limitation appears in Section 2, Representative
Wilson explained: "That grows out of the fact that
there is discrimination in reference to civil rights
under the local laws of the States. Therefore we
provide that the persons who under color of these local
laws shall do these things shall be liable to this
punishment." Id. at 1120 (March 1, 1866).
Representative Loan understood this provision to apply
only to "officers" of the state, and therefore inquired
why the whole community, including "others than
officers," should not be punished for committing wrongs
under the statues. Representative Wilson replied that
Congress was not seeking to impose a general criminal
code on the states and that in this bill it had, as Loan
suggested, sought to eliminate the offensive state laws,
but that "[a] law without a sanction is of very .little
force." Id.
Representative Kerr (Indiana) who opposed
the measure, also viewed Sections 1 and 2 together:
"Viewing [the second section] and the first section of
the bill together", he said, "we learn that the proposed
statute is both remedial and penal in its character.
It proposes to protect certain rights and punish for the
failure to protect them." Id. at 1270. (March 8,
1866) .
-75-
Thus, the object of the Civil Rights
Act was clear to the legislators as a vote
drew near in the House.
c. The Draft of the Bingham Amendment To
Provide a Civil Suit For Violators of the
Act.
The Bingham Amendment to the motion
to recommit the Civil Rights bill and
Representative Wilson's response to the motion
gives weighty support to the proposition that
suits for private acts of discrimination were
not contemplated by the 18 6 6 Act. On March 9,
Representative Bingham, who would vote against
the Civil Rights Bill, moved to amend a motion
to recommit the bill, to provide additional
instructions. His amendment had two aspects.
First:
With instructions to strike out of the
first section the words "and there shall
be no discrimination in civil rights or
immunities among citizens of the United
States in any State or Territory of the
United States on account of race, color,
or previous condition of slavery" and
-76-
insert in the thirteenth line of the
first section, after the word "right" the
words "in every State and Territory of
the United States.
Cong. Globe, 39th Cong., 1st Sess. 1271-1272
(March 9, 1866).
Second:
Also to strike out all parts of said bill
which are penal, and which authorize
criminal proceedings, and in lieu thereof
to give to all citizens injured by denial
or violation of anv of the other rights
secured or protected by said act an
action in the United States courts with
double costs in all cases of recovery,
without regard to the amount of damages:
and also to secure to such persons the
privilege of the writ of habeas corpus.
Id. at 1272.The first proposal, after being
rejected on motion, was ultimately adopted.
The "no-discrimination" clause of §1 was
deleted from the statute and the designated
phrase was inserted. See id. at 1296 (March
9); id. at 1366 (March 13); id. at 1367 (March
-77-
1 5 ) . ^ The basis for Bingham's objection as
to the no-discrimination clause, according to
him, was that "there is scarcely a State in
the Union which does not, by its constitution
or state laws, make some discrimination on
account of race or color between citizens of
the United States in respect to civil rights."
Id. at 1291 (March 9). To avoid any possible
"lati-tudinarian construction not intended."
Id. at 1367 (Rep. Wilson) (March 13) ,^/ the
change was agreed to.
However, the second proposal failed.
Representative Bingham saw the criminal
sanction of §2 as "the same thing" as a
discrimination clause intended to have the
force of law. Id. at 1291 (March 9) . He
denied "the power of Congress to make an error
^ T h e phrase, "in every State and Territory of
the United States," was added later.
— /For example, the possibility of suffrage.
-78-
of judgment in a State officer [by enforcing
a discriminatory state provision] a crime to
be punished by imprisonment." Id. Therefore,
he sought to substitute a federal civil remedy
for damages which would be available "to all
citizens ... injured by denial or violation of
any of the other rights secured or protected
by said act...." Id. at 1292.
Representative Wilson attacked the
proposal as no different in principle from
Section 2 of the bill, and as an inadequate
substitute for a criminal sanction. He
argued:
The amendment of the gentleman
recognizes the principle involved,
but it says that the citizen
despoiled of his rights, instead of
being properly protected by the
Government, must press his own wav
through the courts and pay the bills
attendant thereon. This mav do for
the rich, but to the poor, who need
protection, it is mockery.. . . Under
the amendment of the gentleman the
citizen can only receive that
protection in the form of a few
dollars in the wav of damages, if he
shall be so fortunate as to recover
a verdict against a solvent wrong-
-79-
doer. This is called protection.
This is what we are asked to do in
the wav of enforcing the bill of
rights. Dollars are weighed against
the right of life, liberty, and
property. The verdict of a jury is
to cover all wrongs and discharge
the obligations of the Government to
its citizens.
Sir, I cannot see the justice of
that doctrine. I assert that it is
the duty of the Government of the
United States to provide proper
protection, and to pay the costs
attendant on it.
Id. at 1295 (March 9). Bingham's proposal
floundered.
The rejection of the Bingham
Amendment suggests that Congress never
intended to authorize a federal civil action
for private acts of discrimination.— ̂ Even
Rep. Bingham's broad proposal, which might
have included civil suits, as well as suits
against public officials, was viewed as
•^/see Mahone v. Waddle. 564 F.2d at 1037-1041,
1044-1049 (Garth, J. dissenting).
-80-
applying to state officials only, and on that
basis was rejected.
The Civil Rights bill readily passed
the House, but was vetoed by President
Johnson. Id. at 1367 (March 15, 1866), 1679-
1681 (March 27).
d. The Debates To Override In The
Senate
The debates in the Senate following
the veto continue to show that purely private
acts of discrimination were not within the
contemplation of the Congress which passed the
Civil Rights Act.
Addressing the jurisdictional
provisions of Section 3, Senator Trumbull said
that the provision giving federal courts
authority over cases "affecting persons" who
were denied or could not enforce their Section
1 rights in state courts, were intended merely
to provide supervisory roles for the district
and circuit courts. Even if there was a
-81-
discriminatory custom in the community or
hostile state legislation, which therefore was
void under the federal law, the federal court
would not be receptive to a case until such
time as it became clear that the victim was
unable to obtain relief, usually through a
challenge from an adverse decision in state
court. Thus, there is no provision included
in the statute for a federal remedy for
private discriminatory acts. Cong. Globe,
39th Cong., 1st Sess. 1757 (April 4).
Further, Sen. Trumbull said, in words
dispositive of the issue:
This bill in no manner interferes
with the municipal regulations of
anv State which protects all alike
in their rights of person and
propertv. It could have no
operation in Massachusetts, New
York, Illinois, or most of the
United States of the Union.
Id. at 1761 (emphasis added). See also id. at
1785 (April 5) (Sen. Stewart). The override
carried in the Senate by a vote of 33 to 15.
-82-
Id. at 1809 (April 6).
e. The Debates to Override in the House
The remarks of members of Congress
in the House strongly support the Respondent's
position here. Thus, Representative Lawrence
said on April 7:
The bill does not declare who should
or shall not have the right to sue,
give evidence, inherit, purchase,
and sell property. These questions
are left to the States to determine,
subject only to the limitation that
there _ are some inherent and
undeniable rights, pertaining to
every citizen, which cannot be
abolished or by State constitution or laws.
* * *
It is worse than mockery to say that
men may be clothed by the national
authority with the character of
citizens, yet may be stripped by
State authority of the means by
which citizens may exist.— /
^Representative Lawrence continued:
Now, there are two ways in which a State
may undertake to deprive citizens of these
absolute, inherent, and inalienable rights:
either by prohibitory laws, or by a failure
to protect any one of them.
(continued...)
-83-
Cong. Globe, 39th Cong., 2d Sess. 1832-1833
(April 7) .
Rep. Lawrence similarly continued:
The whole question of the power of
Congress to enact this bill is
resolved into this: when the
Constitution recognizes and secures
rights which are denied by State
laws, may Congress declare it_ a
crime to execute or enforce constit
utional laws, to deprive a citizen
of a constitutional right?
Q U (...continued)
If the people of a State should become
hostile to a large class of naturalized
citizens and should enact laws to prohibit
them and no other citizens from_making
contracts. from suing, from giving
evidence, from inheriting, buying, holding,
or selling property, or even from coming
into the State, that would be prohibitory
legislation. If the State should simply
enact laws for native-born citizens and
provide no law under which naturalized
citizens could enjoy any of these rights,
and should deny them all protection of
civil process or penal enactments, that
would be a denial of justice.
Id. (emphasis added); See also id. at 1835.
-84-
Id. at 1836.
The President's veto was overridden in
the House by a margin of 122-41 and the Civil
Rights Act became law. Id. at 1861 (April 9,
1866) .
In light of this overwhelming,
consistent view of the legislation Congress
was enacting, the Court's current inter
pretation of §1981 cannot be supported. For
if the guarantee of the right to make and
^A)r, put another way by Representative
Lawrence:
[ I ] f a State, by her laws, says to whole
classes of nature or naturalized citizen,
"You shall not buy a house or a homestead
to shelter your children within our
borders;" "you shall be deprived of the
means whereby life is preserved, whereby
liberty is a book, and whereby property is
held sacred" "you shall have no right to
sue in our courts or make contracts" - in
such cases, is the nation powerless to
intervene in behalf of her own citizens, in
behalf of humanity itself, to avert the
annihilation of citizenship?.
Id. at 1835 (Rep. Lawrence).
-85-
enforce contracts and to buy and sell property
were viewed as encompassing a prohibition on
private discrimination, the legislative
history would have been more dispositive of
the Petitioner's contentions.
3. Petitioner's Contentions in Support
of Jones are Unpersuasive.
a. The Schurz Report.
The arguments mustered by Petitioner
in support of the Jones interpretation of the
1866 Civil Rights Act are not compelling. Her
initial argument is that the problems which
Congress intended to remedy were largely
caused by private action (Pet. Br. at 15-40).
She relies heavily upon the Report of General
Carl Schurz,^ and to a lesser extent, those
^ R e p o r t of C. Schurz, S. Exec. Doc. No. 2, 39th
Cong., 1st Sess. 2 (1865).
-86-
of Generals 0.0. Howard— / and U.S. Grant,— /
and testimony before the Joint Committee on
Reconstruction.
The short answer to the argument
based on the Schurz report was provided by
Justice Harlan, dissenting in Jones:
The Court also gives prominence [See 392
U.S. at 428-429] to a report by General
Carl Schurz which described private as
well as official discrimination against
freedman in the South. However, it is
apparent that the Senate regarded the
report merely as background, and it
figured relatively little in the debates.
Moreover, to the extent that the
described discrimination was the product
of "custom," it would have been
prohibited by the bill.
392 U.S. at 462 n. 28. Indeed, by the time
the Schurz Report was finally released to the
Senate on December 19, 1865 and Senator Sumner
■^Report of 0.0. Howard, H.R. Exec. Doc. No. 11,
39th Cong., 1st Sess. 26 (1866)
■^See Cong. Globe, 39th Cong., 1st Sess. 78.
72/Report of the Joint Committee on Recon
struction, 39th Cong., 1st Sess. (1866).
-87-
demanded that the entire Report be read aloud
on the Floor (Pet. Br. at 17), Sumner's
colleague from Massachusetts, Senator Wilson,
had already introduced S.9, focusing the
Senate's attention on recent black codes in
Southern states, some still awaiting passage.
Cong. Globe, 39th Cong., 1st Sess., 39 (Dec.
13, 1865). Wilson would renew his insistence
that these black codes be annulled two days
after the Schurz Report was introduced. Id.
at 111 (Dec. 21). Thus, although S.9 did not
pass, a basic legislative approach had already
been formulated by the time the Schurz Report
came out. See, supra, at 64 n. 57. That
Senator Trumbull, when he introduced the Civil
Rights Act, made no mention of the Report
but did emphasize the black codes further
undermines Petitioner's argument. Cong.
-88-
Globe, 39th Cong., 1st Sess. 494 (Jan. 29,
1866); See, supra. at 62-68.
b. The Joint Committee Report
Similarly, Petitioner's extensive
reliance on the Joint Committee debates is
unavailing (Pet. Br. at 27-40). Although she
describes it at great length, only three
specific references to the debates on the 1866
Act are offered. (Id. at 45 n. 48) . The
first, by Representative Raymond, was made in
the context of his sardonic criticism of
unreliable newspaper accounts being offered as
evidence in Congressional argument; he stated
he wanted to examine the testimony before the
Joint Committee before deciding how to vote on
73 /— 'The Howard and Grant Reports require even less
attention (Pet. Br. at 25-27). Petitioner can summon
up only one citation to the Civil Rights Act debates,
a fleeting reference to the Grant Report. (Id. at 27).
It cannot have had any significant impact on the
legislation.
-89-
the bill. Cong. Globe, 39th Cong., 1st Sess.
1267 (March 8, 1866).^
The next record reference consists
of excerpts from testimony and correspondence
before the Committee which were inserted in
the record by Rep. Lawrence as part of his
remarks to override the Presidential veto.
Id. at 1833-34 (April 7) . This diffuse
material, however, was employed to show the
need for legislation where "a State, by her
laws, says to whole classes of native or
naturalized citizens — you shall have no
right to sue in our courts or make contracts
..." Id. at 1835.̂
■^■^Henry Jarvis Raymond was editor of the New
York Times, as well as a Member of Congress. He did not
vote on S.61 the first time it came up in the House; on
the question whether to override President Johnson's
veto, he voted against passage. Id. at 1367, 1861.
(March 13, April 9).
■^^General Terry's testimony included specific
references to fear of persecution of freedman through
the courts, as well as privately, and General Thomas
alluded to his concern that, absent troops, freedman
(continued...)
-90-
The remarks of Representative Clarke
also fail to support Petitioner's contention.
His statements do refer to testimony of
"southern animus.» but he emphasized the
obnoxious black codes and vagrancy laws passed
in Alabama, Mississippi, Kentucky and
elsewhere. Id. at 1838-1839.
Reliance on an opponents'
construction of proposed legislation is always
risky business, and especially so in the case
of Senator Garret Davis' comments. (Pet. Br.
at 48-51). This unreconstructed Democrat was
quick to wave the "bloody flag" of racial
intermarriage and rape, and to utter dire
warnings as to the scope of the bill. Cong.
Globe, 1st Sess. 598 (Feb. 2), and App. 182-
. . . continued)
would be "thrown back into a condition of virtual
slavery," being "compelled by legislative enactment to
labor for little or no wages, and legislation would
assume such form that they would not dare to leave their
employers for fear of punishment . Id at 1834
1835.
-91-
183 (Apr.6). It does not appear that anyone
paid him much notice. Nevertheless,
Petitioner adverts to Representative Davis's
alarm that the bill would apply to railroads,
streetcars, hotels and certain other
enterprises, as well as churches. (Br. at
49) . Nowhere, however, does Davis indicate
that it would give rise to a civil action for
purely private discrimination. In any event,
this does not appear to have been understood
as the intent of the proponents^
^ T h e Cincinnati Commercial. a conservative
Republican newspaper initially expressed fear that the
bill would require the opening of "hotels, churches and
theaters without distinction the basis of color."
Cincinnati Commercial. March 30, 1866 at 4; IcL_, April
30, 1866 at 2 (column of "M___ "). However, after being
assured by proponents of the bill, including
"influential members" of the Ohio delegation that the
prohibitions would not apply to Ohio, but only to states
with black codes, the Commercial abandoned its
objection. I d - > Apr. 16, 1866 at 4; Id, April 21, 1866
at 4. The Philadelphia North American expressed a
similar view, that the bill would not apply to the
"right" to "go to any car, coach, hotel, church [or]
public place." I d .. Apr. 10, 1866, at 2, c.l. Maltz,
Reconstruction, supra, at 265.
(continued...)
-92-
Petitioner's argument that a
comparison of the Freedman's Bureau Bill and
Section 1 of the Civil Rights Act (Pet. Br.
51-54) does not require a conclusion that the
latter was intended to address private action.
A local official might well act out of
personal prejudice not embodied in a community
or governmentally-sanctioned custom.
Petitioner's remaining contentions
criticizing Justice Harlen's reliance on
certain quotations from members of the Thirty-
Ninth Congress as inappropriate, or that his
reading of them was wrong, are contextual in
. .continued)
Moreover, the nature of the facilities described
in Davis' remarks were public in character. Thus, in
explaining H.R. 473, 42nd Cong., 2d Sess., during the
debates on the Civil Rights Act of 1875, Rep. Lawrence
described facilities run by inn-keepers, common carriers
(whether by land or water), theaters and other places
of public amusement, as "enumerated classes of public
institutions created and protected for public purposes
by authority of either common or statutory law, or
both." Cong. Rec. (H)412 (43rd Cong., 1st Sess., 1874).
Thus, it was well established that such locations were
public in nature. See. supra. 54 n. 50.
-93-
nature. We believe the remarks quoted earlier
lay to rest any doubt as to object of the Act.
See, supra, at 60-85. It is unnecessary to
deny the existence of private acts of
discrimination to conclude that mainstream
Republicans of this era were more interested
in reconstructing state governments in order
to resume their local responsibilities and to
take their place in the Union without slavery,
than in overwhelming the small federal court
system with a deluge of civil lawsuits — an
inevitable consequence of Petitioner's
position given the credence attached to the
findings of Generals Schurz and Howard, and
the Joint Committee.
Priggv. Pennsylvania. 41 U.S. (16 Pet.) 539
(1842), and Kentucky v. Dennison. 65 U.S. (24 How.) 66
(1861), do not aid Petitioner's argument (See Pet. Br.
at 70-71). They denied the authority of the federal
government to impose any legal obligation on a state
judicial or executive officer to perform duties on
behalf of the federal government. Concededly, Congress
did not view this pre-war outgrowth of States rights and
equal sovereignty doctrines as preventing it from
(continued...)
-94-
POINT III
CONCERNS FOR STARE D E C IS I S SHOULD NOT PREVENT
THE COURT FROM OVERRULING RUNYON
The conclusion that Runyon was in
correctly decided should impel this Court to
reconsider and overrule it. Section 1981 was
not intended to create a federal cause of
( . . .continued)
imposing Section 2 criminal sanctions or state officers
for violations of the Civil Rights Act. No reason
appears why it should have balked at imposing civil
liability on them, as well. In other words, once
Congress repudiated this aspect of Prigg. there is no
force to the suggestion that private acts of
discrimination were the focus of the 1866 Act's civil
remedies.
The intriguing issue raised by Prigg is whether
the Act intended to create any federal civil action for
its violation, even as against public officials. The
drafters' construction of Section 3 certainly leaves
open the possibility that it did not. See, supra, at
67-68. Criminal sanctions assured that no state officer
would suffer liability unless his violation was
established beyond a reasonable doubt. This would have
had a moderating influence on efforts to invoke the
statute against officials. The same inhibition would
not exist in civil actions.
-95-
action for private acts of racial
discrimination. If a federal cause of action
is to be established, it is for Congress and
not the Court to do so.
Stare decisis should not deter the
Court from correcting its error. As we shall
demonstrate, neither the doctrine nor the
concerns which undergird it compel
forebearance.
A. Perpetuation of the Rule in Runyon Would
Breach the Separation of Powers Ordained
By the Constitution.
Perpetuating an erroneous decision
which creates a federal cause of action would
be tantamount to legislation by the judicial
branch. Sustaining Runyon would lead to this
undesirable result.
The separation of powers is based on
the idea that the power to make law is vested
in the legislative branch, the power to
execute law is vested in the executive branch,
-96-
and the power to interpret law is vested in
the judicial branch. Field v. Clark. 143 U.S.
649, 692 (1892); Wavman v. Southard. 213 U.S.
(10 Wheat) 1, 42 (1825) . While the three
branches of government cannot be hermetically-
sealed, Buckley v. Valeo. 424 U.S. 1, 121
(1976), the Court has "consistently ...
emphasized that the federal lawmaking power is
vested in the legislative, not the judicial
branch of government...." Northwest Airlines.
Inc, v. Transport Workers Union. 451 U.S. 77,
95 (1981). "[I]n carrying out that
constitutional division...it is a breach of
the National fundamental law if Congress gives
up its legislative power and transfers it
to...the Judicial branch...." J.W. Hampton,
Jr. & Co. v. United States. 276 U.S. 394, 405-
406 (1928).
Here, that forbidden transfer is the
natural consequence of upholding Runyon. Yet,
-97-
it is precisely what is urged upon the Court
by the Members of Congress.-^/ They assert:
The interests of the amici would be
adversely affected by the overruling
of Runvon. The legislative effort
necessary to restore this Court's
original interpretation would likely
be fractious and divisive, since
corrective legislation would, in all
likelihood, compel the Congress to
address numerous peripheral
questions concerning the scope and
application of Section 1981.— /
This statement is both ironic and
disappointing. What is presented here is the
spectacle of Members of Congress saying that
they would be unable to enact any legislation
— ^Brief of 66 Members of the United States
Senate and 118 Members of the United States House of
Representatives as Amici Curiae in Support of
Petitioner. Since the brief was filed, additional
members of the House of Representatives have joined in
it.
We recognize, of course, that these Members
participate here as individuals. Nevertheless, they
constitute, respectively, approximately two-thirds of
the membership of the Senate and nearly one-third of the
membership of the House.
79/Id.at 2.
-98-
today comparable to §1981. Any such bill, the
legislators assert, would fall victim to
intense and widespread controversy and the
members of the two houses would become
embroiled over "peripheral questions" with
respect to the scope of the bill.
Because they fear failure, the
Members argue that the Court should substitute
itself for Congress and perform a legislative
function by adhering to the previous mistaken
reading of §1981. The matters about which the
r̂cici express concern — open debate, the
shaping of the bill and eventual time-
consuming compromise — are the very essence
of a democratic legislative process. By what
authority, however, would this Court be
expected to perpetuate an erroneous decision
legislating" a cause of action which Congress
could not pass? it cannot, by any found in
the Constitution. Nor is any satisfactory
basis suggested by the Members of Congress.
-99-
If Congress could not today pass §1981 as
viewed in Runyon, the Court should not reenact
it by judicial fiat.
The Members of Congress, therefore,
unwittingly make a powerful argument for
overruling Runyon. It may be more efficient
for the Court to impose legislation by
judicial fiat than for Congress to act;
however, our system dictates otherwise. The
duty to legislate is Congress' and not the
Court's. The Framers of the Constitution
intended that this be so.
AS we discuss below, stare decisis
does not require the Court to sacrifice
respect for constitutional limitations or
fidelity to historical intent in this case.
B. F l e x i b i l i t y Is Inherent In__Stare
Decisis
-100-
The Supreme Court has regularly
overruled its decisions.-^/ Many of these
instances involve statutory questions. One
commentator has counted twenty-six cases
between 1961 and 1987 explicitly overruling
statutory precedents, twenty-four cases
implicitly overruling such precedents and
thirty-five cases in which the Court has
disavowed significant reasoning in statutory
precedents.-^/ Thus, rigid adherence to
statutory precedent has not been a hallmark of
the Court's jurisprudence.
Stare decisis et non guieta movere—
- "the doctrine that teaches judges that it is
— ' The Constitution of the United States of
America, Analysis and Interpretation. S. Doc. No. 16,
99th Cong., 1st Sess. at 2117-2127 (1989), as
supplemented by 1986 S u p p .. S. Doc. No. 9, 100th Cong.,
1st Sess. at 143 (1987). This compilation lists 184
cases through July 7, 1986. Id. at Supp. 143.
81 /— ' Eskridge, Overruling Statutory Precedents. 76
Geo. L.J. 1361, 1427-1438 (Tables A-C) (1988).
-101-
often wise to let sleeping dogs lie"— /— isnot
an unbending rule, but a guideline for
decision making. It recognizes that the
durability of judicial decisions interpreting
legislation often rests upon their fidelity to
the enactors' intent. As Justice Harlan
stated in Monroe v. Pape. 365 U.S. 167 (1961),
addressing the 1871 Ku Klux Klan Act:
From my point of view, the policy of
stare decisis as it should be
applied in matters of statutory
construction, and, to a lesser
extent, the indications of
Congressional acceptance of this
Court's earlier interpretation,
require that it appears beyond doubt
from the legislative history of the
...statute that [the Court's earlier
interpretations] misapprehended the
meaning of the controlling
provision, before a departure from
^ J . P . Stevens, The Life Span of a Judge - Made
Rule. 58 N.Y.U. L. Rev. 1 (1983). Justice Stevens
quotes other, more literal translations. There is no
suggestion that Justice Stevens had any particular
decisions in mind in uttering his very free translation
e.g., "'to stand by the decisions and not to disturb
settled points,from Sprecher, The Development of the
Doctrine of Stare Decisis and the Extent to Which It
Should Be Applied. 31 A.B.A.J. 501-02 (1945), id. at
n. 1.
-102-
what was decided in those cases
would be justified.
Id. at 192 (footnote omitted) (concurring
opinion). Moreover, the arguments need not be
new ones; "[t]hat the flaws in an opinion were
evident at the time it was handed down is
hardly a reason for adhering to it."
Thornburgh v. American College of Obste
tricians. ___ U.S.______ , 106 S. Ct. 2169,
2193 (1986) (White, J. , dissenting) /
However, Justice Harlan's test has
been viewed only as "the most stringent test
for the propriety of overruling a statutory
decision," Monell v. Department of Social
Services of the City of New York. 436 U.S.
8 3 /That this observation pertained to whether a
precedent "departs from a proper understanding" of the
Constitution, id., does not make it any less applicable
to the "issue raised in a statutory context", as framed
by Justice Harlan. See Garcia v. San Antonio Metro.
Transit Authority. 469 U.S. 528, 559 (1985).
-103-
658, 700 (1978)— /; Johnson v. Transportation
Agency, Santa Clara Co. . ____ U.S. ___, 107 S.
Ct. 1442, 1474 (1987) (Scalia, J. ,
dissenting); cf. Monell, supra, 436 U.S. at
718-19 (Rehnquist, J., dissenting) ("...one's
only task is to discern the intent of the 42nd
Congress")— /; Braden v. 30th Judicial Cir.
Ct. of Kentucky. 410 U.S. 484, 502 (1973)
(Rehnquist, J., dissenting).
Other articulations suggest that
different concerns may also contribute to
overruling precedent. In Boys Markets. Inc.
— /The Court in Monell noted that it had not
expressly adopted Justice Harlan's test, id. at 700 n.
65, suggesting that a more relaxed standard might be
available.
■^/Even Justice Stevens, a strong advocate of
s t a r e d e c i s i s , has allowed that "[t]here may, of course,
be situations in which a past error is sufficiently
blatant ' to overcome the strong presumption of continued
validity that adheres in the judicial interpretation of
a statute. ' " Commissioner v. Fink. __ U.S. ___, 107 S.
Ct. 2729, 2737 (1987) (Stevens, J., dissenting), citing
Square D Co. v. Niagara Frontier Tariff Bureau, __ U.S.
_____, 106 S. Ct. 1922, 1930 (1986).
-104-
v. Retail Clerk's Union. Local 770. 398 U.S.
235 (1970) , the Court illustrates this by-
quoting from an earlier decision:
[ S ] t a r e d e c i s i s is a principle of
policy and not a mechanical formula
of adherence to the latest decision,
however recent and questionable,
when such adherence involves
collision with a prior doctrine more
embracing in its scope,
intrinsically sounder, and verified
by experience.
Id. at 242, quoting Helverinq v. Hallock. 309
U.S. 106, 119 (1939) (per Frankfurter, J.).
And in Baldwin v. State of New York. 399 U.S.
117 (1970) , Justice Harlan observed:
The principle of s t a r e d e c i s i s is
multifaceted. It is a solid
foundation for our legal system; yet
care must be taken not to use it to
create an unmovable structure....
Woodenly applied...it builds a
stockade of precedent that confines
the law by rules, ill-conceived when
promulgated, or if sound in origin,
u n a d a p t a b l e to p r e s e n t
circumstances. No precedent is
sacrosanct and one should not
hesitate to vote to overturn this
Court's previous holdings - old or
recent - or reconsidered settled
dicta where the principles announced
prove either practically... or
-105-
jurisprudentially ...unworkable, or
no longer suited to contemporary
life.
Id. at 127-128 (Harlan, J. , concurring and
dissenting) (citations omitted).
Justice Douglas also endorsed a
flexible approach to stare decisis:
It is, I think, a healthy practice
(too infrequently followed) for a
court to reexamine its own doctrine.
Legislative correction of judicial
errors is often difficult to effect.
Moreover, responsible government
shall entail the undoing of wrongs
committed in the department in
question. That course is faithful
to democratic traditions. Respect
for any tribunal is increased if it
stands ready (save where injustice
to intervening rights would occur)
not only to correct the errors of
others but also to confess its own.
Douglas, Stare Decisis, 49 Col. L. Rev. 735,
746-47 (1949).
In the field of civil rights, this
flexibility has been noticeable too. In
Greenwood v. Peacock, 384 U.S. 808 (1966), for
example, the Court made clear in a case
construing 28 U.S.C. §1443, that it would not
-106-
follow s t a r e d e c i s i s out of blind adherence,
but determine after "independent
consideration" of disputed precedents whether
to sustain or overrule them. As Justice
Scalia has noted, "this Court has applied the
doctrine of s t a r e d e c i s i s to civil rights laws
less vigorously than to other laws." Johnson
v. Transportation Agency. 107 S. Ct. at 1473
(dissenting opinion), citing Maine v.
Thiboutot. 448 U.S. at 33 (1980) (Powell, J.,
dissenting); Monroe v. Pane. 365 U.S. at 221-
222 (Frankfurter, J. , dissenting in part).
This flexibility should not be diminished
because the doctrine's application here may
serve to restrict liability, rather than to
expand it. Patterson v. McLean Credit Union.
___ U.S. ___, 108 S.Ct. ____ 56 U.S. L.W. 3735
(April 25, 1988) (per curiam) (ordering
reargument).
-107-
C. This Case Calls For Application Of A
Flexible Approach To Stare Decisis.
The present case, especially, calls
for a cautious regard for precedent. That the
Court should recently discover that §1981
authorized suits for private acts of
discrimination, "a fact that [the Court's]
decisions had kept a closely guarded secret
for more than a century, "— Zmust itself raise
serious doubt. The Court early and
consistently interpreted the Civil Rights Act
of 1866, the Fourteenth Amendment as
addressing state laws and conduct which
imposed disabilities on blacks and deprived
them of equal treatment in legal proceedings
and punishments, rather than purely private
acts by individuals. ^ (dictum).
IB Moore's Fed. Prac. para. 0.402 [5] n.5
(1988) .
■§4-/ Bvlew v. United States. 80 U.S. (13 Wall.)
581, 593, 596-597 (1871) (majority and dissenting
opinions); Slauehter-House Cases. 83 U.S. (16 Wall) 36,
81 (1873); United States v. Cruikshank, 92 U.S. 542,
(continued...)
-108-
Later decisions continued to support
the proposition that purely private conduct
could not be actionable under §1981. ^
Nevertheless, Congress did not act.
No legislation was passed making §1981
applicable to purely private conduct. The
decision in Jones. therefore, represented an
abrupt departure from what had been accepted
. .continued)
554 (1876); Strauder v. West Virginia.. 100 U.S. 303,
311-312 (1880); United States v. Harris. 106 U.S. 629,
642-644 (1882); and, of course, The Civil Rights Cases.
109 U.S. 3, 25-26 (1883) ("[The 1866 Act] is clearly
corrective in character, intended to counteract and
furnish redress against state laws and proceedings, and
customs having the force of law, which sanction the
wrongful acts specified. Id. at 25.).
88/— See Yick Wo v, Hopkins. 118 U.S. 356, 369-370
(1886); Hodges v. United States. 203 U.S. 1 (1906),
overruled, Jones. supra. at 441-443 n.78; cf. Corrigan
v..„. Buckley, 271 U.S. 323, 524 (Rev. Stat §1978). Hurd
v. Hodge. 334 U.S. 24 (1948)(§1982).
-109-
as the reach of the s t a t u t e . I t s
entitlement to adherence is diminished in
these circumstances. "'[I]f changes [were] to
be made in the long-settled interpretation of
the provisions of this century-old
statute, it [was] for Congress and not this
Court to make them."1 Johnson v. Mississippi,
421 U.S. 213, 227 (1975), quoting City of
Greenwood v. Peacock, 384 U.S. 808, 834
(1966). Cf. Monel1. supra, 436 U.S. at 695-
69 6 (s t a r e d e c i s i s no bar to correction of
earlier decision's departure from longstanding
prior practice); Johnson v. Transportation
Agency, supra, 107 S.Ct. at 1473 (Scalia, J.,
dissenting).
■^Arhe "under color" requirement of §2 of the
Civil Rights Act and Revised Statutes §1979 (presently
42 U.S.C. §1983) had evolved to permit the inclusion of
private persons, but to come within the statute, they
had to be jointly engaged with state officials in
prohibited conduct. United States v. Price, 383 U.S.
787, 795 (1966).
-110-
Moreover, despite its holding in
Runyon. the Court has refused to analogize a
violation of §1981 to a suit for interference
with contractual rights for purposes of
selecting an appropriate state statute of
limitations, finding that "[t]he provision
asserts, in effect, that competence and
capacity to contract shall not depend upon
race." Goodman v. Lukens Steel Co. .
____U.S.___, 107 S.Ct. 2617, 2621 (1987)
Competence and capacity to contract
are conferred by law or deprived by law;
purely private acts cannot affect them. If
that is what §1981 stands for, Runyon and
Jones cannot be right.
Similarly, the bedrock rationale of
the intent requirement of General Building
Contractors Assoc., Inc, v. Pennsylvania. 458
U.S. 375 (1982), that in §1981,
Congress acted ... to protect the
freedom from intentional
discrimination by those whose object
was "to make their former slaves
- i n
dependent serfs, victims of unjust
laws, and debarred from all progress
and elevation by organized social
prejudices.",
458 U.S. at 388,— ^and that, according to the
supporters, "the legislation was designed to
eradicate blatant deprivations of civil
rights^/, clearly fashioned with the purpose
of oppressing the former slaves," id., again
point to a larger, more systemic and forceful
object than mere private acts of
discrimination, even those performed
intentionally. They point to laws, state
actions, and actions taken under color of law
or custom.
The Court's decisions following
Runyon. therefore, neither fully nor easily
• ^ Quoting Cong. Globe, 39th Cong., 1st Sess.
1839 (1866)(Rep. Clarke). Id.
^ T h e term "civil rights" is defined as the
d r a f t e r s employed i t . Cf. S t . F ranc i s Col lege_v.—A l -
Khazrai i. U.S. ___, 107 S.Ct. 2022, 2026-2027 (1987)
(discussing the term "race" as used in §1981).
-112-
accept its rationale.
D. The Principal Concern of s t a r e D e c i s i s
Would Be Preserved Despite The Overruling
of Runyon.
"[0]ften considered the mainstay of
s t a r e d e c i s i s ," is the "desirability that the
law furnish a clear guide for the conduct of
individuals, to enable them to plan their
affairs with assurance against untoward
surprise." Moragne v. States Marine Lines.
Inc. . 398 U.S. 375, 403 (1970). Here, the
absence of Runyon would not materially affect
this concern.
Patently, the law can offer no guide
or plan for prospective plaintiffs — the
discriminatees in civil rights cases under
§1981. Unlike the regulation of securities,
taxes or business affairs, §1981 is remedial,
not regulatory, in its application. It is
concerned with remedying an injury to the
individual rights of a person. Goodman v.
-113-
Lukens Steel Co., 107 S.Ct. at 2621. "This
is not an area of commercial law in which,
presumably, individuals have arranged their
affairs in reliance on the expectant stability
of decision." Monroe v. Pape, 365 U.S. at
221-222 (Frankfurter, J. dissenting in
p o i n t ) T h e r e f o r e , reliance interests would
not be materially affected by overruling
Runvon.
Furthermore, the large majority of
cases brought under §1981 appear to be
duplicative of Title VII claims,^/or similar
claims that could be brought under state fair
employment practice laws.— / These modern
^ / See ._____e . g . . N.L.R.B. v. International
Longshoremen's Ass'n. ___U.S. ___ , 105 S.Ct. 3045, 3058
(1985) ("In the meantime, management and labor alike
have relied on the work-preservation doctrine to guide
their bargaining.")
— /The Civil Rights Act of 1964, as amended, 42
U.S.C. §2000e, et sea. (1981).
^/Eisenberg and Schwab, The Importance of
Section 1981. 73 Corn. L. Rev. 596 (1988). Based on
statistics drawn from three judicial districts in FY
(continued...)
-114-
civil rights statutes, which explicitly
address employment and other forms of private
discrimination and which empower
administrative agencies to interpret,
administer and often adjudicate disputes under
the laws, are far more influential in molding
behavior of the public than §1981 which is
general in its terms and must depend upon a
lawsuit for en f o r c e m e n t /
(. . . continued)
1980-1981, the authors conclude that " [employment
claims comprise [over] 77% of all filings under the
statute." Id.
^ See Brief, Amici Curiae. of the State of New
York, et al., [hereinafter "State Attorneys General"]
at 20-21 nn. 42-43.
In FY 1984, the last year for which an annual
report has been published, the federal Equal Employment
Opportunity Commission and FEP agencies under contract
with the Commission received 76,198 charges of racial
discrimination against private employers. E.E.O.C., 19
Ann. Rep. 22 (1987). In addition, they received 320
charges based on "color" and 14, 184 charges based on
national origin, against private employers, id., some
of which, at least, might also have constituted claims
of racial discrimination under St. Francis College. 107
S.Ct. at 2029 (Brennan, J., concurring).
Although St. Francis College interpreted "race"
broadly, the Fifth Circuit has refused to extend Ruvnon
(continued...)
-115-
Title VII is broader than §1981,
even in terms of racial discrimination. See
Johnson v. Railway Express Agency, Inc.. 421
U.S. at 459 (noting "Title VII's [broad] range
and its design as a comprehensive solution for
the problem of invidious discrimination in
employment....") It is not surprising,
therefore, that Justice Blackmun should have
recognized here that "it is probably true that
most racial discrimination in the employment
context will continue to be redressable under
other statutes." 108 S. Ct. at 1422
(dissenting opinion). There is "substantial
overlap" between §1981 and Title VII.— / Id.
( . . . continued)
to alleged discrimination based on alienage. Bhandari.
sunra.
Alnless a violation of §1981 can be made out on
grounds different from those under Title VII, the Fifth
Circuit bars the consideration of §1981 claims. Watson
v. Fort Worth Bank & Trust. 798 F.2d 790 at 794 n.4 (5th
Cir. 1986) cert, granted. ___ U.S. ___, 107 S.Ct. 3227
(1987) (No. 86-6139). The State Attorneys General point
to the fact that Title VII covers only employers with
(continued...)
-116-
(Stevens, J. , dissenting). Indeed, in their
brief, the State Attorneys General concede
that "courts fashioning equitable remedies
under §1981 can require relief similar to
that available under Title VII, such as
hiring, promotion, reinstatement, retroactive
seniority and affirmative action...."— / —
the very stuff of corrective measures in
redress of grievances.
Outside the employment area, other
constitutional and statutory grant appropriate
( . . . continued)
fifteen or more employees, and that most state statutes
have jurisdictional limits which "approach" that of
Title VII (Br. at 20-21). It is noted, however, that
the New York State Human Rights Law covers all employers
with four or more employees (New York Executive Law,
§290 et seq.). id. at 21 n.43, and in the District of
Columbia, D.C. Code Ann. §§-2501, et sea. the law covers
all employers with one or more employees. In fact, only
11 states have the same jurisdictional limit as the
EEOC; the remainder with fair employment practice laws
have an average threshold which is considerably lower.
81 Lab. Rel. Rep. (BNA) 451:105-107 (1987).
22/Brief,State Attorneys General, at 20.
-117-
of other laws, most notably Titles II and VII
of the Civil Rights Act of 1964 (U.S.C.
§2000a, et sea; 42 U.S.C. §2000e, et sea.) and
the Fair Housing Act of 1968 (42 U.S.C. 3601,
et seq.) are even broader than §1981. Section
1981 is limited to discrimination based on
race. Any victims of other invidious forms of
discrimination, sex, age, religion, marital
status, national origin, handicap and the
like, must look elsewhere for relief.
Bhandari v. First National Bank of Commerce.
829 F.2d 1343 (5th Cir. 1987).
Accordingly, even if §1981 were to
be restricted, little change would be expected
in conduct presently affected by the statute.
Modern anti-discrimination statutes specially
designated for this purpose would continue to
-118-
guide private actions and, more broadly,
public attitudes.^/
Raymond Gonzalez, the co-plaintiff
in Runvon. was recently interviewed with
respect to the reconsideration of that case by
this Court and the possibility of a return of
§1981 to its original intent. He said:
"Barriers were being broken down
very, very fast in those days
[1976]," Gonzalez says, adding, "the
impact on our family was no where as
great as it was for those in the
Brown case."
98/— Oneauthor notes:
At the time Title VII was enacted,
approximately one-half of the 50 states had
fair employment statutes. 110 Cong.
Rec.7205 (1964) (remarks of Sen. Clark).
Today 49 States - all but Alabama - have
some form of fair employment statute.
Catania, State Employment Discrimination Remedies and
Pendent Jurisdiction Under Title VII: Access to
Federal Courts. 32 Am. L. Rev. 777, 782 n.24 (1983).
Similarly, "[i]n some cases, state statutes apply to a
broader range of discriminatory acts than are covered
by Title VII, or provide a wider range of possible
remedies, including recovery of compensatory damages."
Wald, Alternatives to Title VII: State Statutory And
Common-Law Remedies For Employment Discrimination. 5
Harv. Women's L. J. 35, 42 (1982) (footnotes omitted).
-119-
As for the Court's decision
overturning the victory he won for
his son, Gonzalez is not bothered by
the legal debate. He feels the
country has changed too much for
such ruling to matter greatly.
"Whites are not going to run out and
open up schools that will keep out
blacks," Gonzalez says. "The
population is a lot more enlightened
now."
Legal Times of Washington. Vol. XI, No. 2,
June 6, 1988.
E . Congressional Actions Regarding §1981 Do
Not Prevent The Overruling Of Runyon.
Petitioner argues that Congress has
"adopted" the principle that §1981 prohibits
private racial discrimination. (Pet. Br. at
71-100). This argument is unsound. Congress'
failure to legislate in this area is
inconclusive. As stated by Justice Scalia in
Johnson v. Transportation Agency, Santa Clara
County, supra:
This assumption, which frequently
haunts our opinions, should be put
to rest. It is based, to begin
with, on the patently false premise
-120-
that the correctness of statutory
construction is to be measured by
what the current Congress desires,
rather than by what the law as
enacted meant.
Id. at 1473 (dissenting opinion). The failure
of Congress to enact legislation can result
from a variety of reasons, including:
(1) approval of the status quo, (2)
inability to agree upon how to alter
the status quo, (3) unawareness of
the status quo, (4) indifference to
the status quo, or even (5)
political cowardice.
Id. ; Accord. United States v. Stauffer
Chemical Co. 684 F.2d 1174, 1184 (6th Cir.
1982) .
Here, Congress' actions with respect
to certain civil rights legislation do not
support Petitioner's argument. See Girouard
v. United States. 328 U.S. 61 (1946); Bovs
Markets. Inc, supra. At most Congress did not
wish to tamper with the remedial provisions of
Title VII. As this Court has noted:
" [Unsuccessful attempts at legislation are
-121-
not the best of guides to legislative intent."
Red Lion Broadcasting Co. v. F.C.C., 395 U.S.
367, 381 n. 11 (1969). See also Bryant_l .
Yellen. 447 U.S. 352, 376 (1980); Bob Jones
University v. United States. 461 U.S. 574, 600
(1982) ; City of New Milwaukee v. Illinois and
Michigan. 451 U.S. 304 , 332 n. 24 (1981). In
any event, the views of one Congress in
interpreting the legislation of another, much
earlier Congress is entitled to very little
weight. Russello v. United States, 464 U.S.
16, 25 (1983) ; Jefferson County Pharmaceutical
Ass'n v. Abbott Laboratories. 460 U.S. 150,
165 n. 27 (1983) ; Consumer Product_Safety
Com1 n . v. GTE Svlvania, Inc., 497 U.S. 102,
118 (1980) ; International Bro. of Teamsters v^
United States. 431 U.S. 324, 354 n. 39 (1977);
-122-
United States v. Price. 361 U.S. 304, 313
(1960) .22J
Petitioner's argument concerning the
passage of the Civil Rights Attorney's Fees
Award Act of 197 6 is equally unpersuasive. As
the legislative history of that statute
clearly demonstrates, the act's main purpose
99 /— Indeed, the Tower Amendment in 1964 did not
address an individual's ability to seek redress for
purely private acts of discriminations. Rather, it
sought to "preclude the harassment of businessmen,
companies, or unions by more than one Federal agency."
Legislative History of Title VII of the Civil Rights of
1964. at 3324. See 110 Cong. Rec. 13650-13652 (1964).
Similarly, the pre-Runyon rejection of the
Hruska Amendment in 1972 did not involve an examination
of the validity of the §1981 cause of action as applied
to private acts of discrimination, and Congress did not
alter Title VII as a result. See 110 Cong. Rec. (S)
3172, 3368-3373 (1972). What is more interesting,
perhaps, is that the question of §1981 remedies in the
context of the proposed extension of Title VII to cover
state and local government employees. H. R. Rep. No.
238, 92d Cong., 1st Sess., (1971). In that context,it
would not have been directed at private acts of
discrimination at all. Indeed, Senator Williams, in
opposing the Hruska amendment, was under the gross
misapprehension that the 1866 Civil Rights Act had
"guided this country for a century...." Id.
-123-
was to provide for an award of attorney's fees
in cases brought under all the civil rights
statutes. Congress was not concerned with the
scope of §1981, or any other civil rights
law.i^/ Thus, upon close analysis,
Petitioner's claim of Congressional
acquiescence in the Runvon decision fails.
■^^The Civil Rights Attorney's Fees Award Act of
1976, R.L. 94-559, 42 U.S.C. §1988, upon which
Petitioner also relied (Pet. Br. 91-95), does not
support her position, either. It sought only to "remedy
anomalous gaps in our civil rights laws" created by the
Court's decision in Alveska Pipeline Service Co. v.
Wildness Society. 421 U.S. 240 (1975), and to achieve
consistency in our civil rights laws," by authorizing
"the familiar remedy of reasonable counsel fees to
prevailing parties" in civil rights actions. S. Rep.
No. 94-1011, 94th Cong., 2d Sess. 1, 2 (1976). It
applies not only to §1981, but to §§1978-1981 of the
Revised Statutes (42 U.S.C. §§1982-1986) and 42 U.S.C.
§2000d (discrimination in federally assisted program)
and 20 U.S.C. §§1681-1686 (International Revenue Code).
Congress did not address the merits or scope of any of
these provisions; the law was to continue changed. 122
Cong. Rec. (H) 35122 (1976) (Rep. Duran). Indeed, "It
[was] not the intent of Congress nor [was] it the intent
of this statute to encourage persons to sue directly
under section 1981 rather than using the services of the
[EEOC] under Title VII of the Civil Rights Act." 122
Cong. Rec. (H) 35124 (1976) (Rep. Railsback). A "quick
fix" to achieve "consistency" was the entire object.
-124-
F. Asserted Reliance Interests Do Not
Require Adherence To Ruvnon.
Although Petitioner contends that
Jones and Runyon have engendered "widespread
reliance" supporting their reaffirmation.
(Pet. Br. 102-106) , this assertion must be
met with skepticism. Any "reliance" is
principally a function of the availability of
relief. As the Court stated in Bhandari v.
First National Bank of Commerce, supra:
For us, of course, there is no
question whether to adhere or not to
Jones and McCrary; they are part of
our marching orders, mandates which
we can either obey or seek other work.
829 F .2d at 1349.
The states can pass their own
legislation, as several have.— / That
---- / B r i e f o f the S t a t e s o f New York, e t a l . , Amici
Curiae, at 19 n. 36. The States assert that they have
the power to enact legislation modeled after §1981 as
construed in Runyon. but maintain that "the period
during which legislatures were acting to do so and
administrative agencies were re-tooling to entertain new
kinds of changes would certainly be one of confusion or
chaos." Id. at 21. Since many states already regulate
(continued...)
-125-
attorneys may have relied on the availability
of such relief seems the weakest argument of
all. That attorneys should advise their
clients to forego Title VII or state law
remedies specifically created to remedy racial
discrimination in the hope of attaining
greater damages in a §1981 suit is not a
reason for sustaining Runyon.
G. Runvon Should Be Overruled To
Maintain Public Faith In the
Judiciary.
Public faith in the Court depends
upon the Court's integrity. It must interpret
statutes with fidelity to the intent of
Congress which passed them. If it does not,
principled decision-making suffers and the
legislative will be violated.
"Wisdom too often never comes, and
so one ought not to reject it merely because
( . . . continued)
the subjects covered by the Runvon view of §1981,
particularly employment, the argument appears to be
overstated.
-126-
it comes late." Hensler v. Union Planters
Bank. 335 U.S. 595, 600 (Frankfurter, J. ,
dissenting), quoted in Bovs Markets. Inc, v.
Retail Clerk's Union. Local 770. supra. 398
U.S. at 255 (Stewart, J., concurring). That
it follows an earlier contrary interpretation
may be unfortunate, but it offers no
justification for perpetuating a clear mistake
misapprehending the meaning of the statutes.
Cloaking this error in stare d e c i s i s does
serve to promote respect for the Court.
On the other hand, overruling Runyon
will permit Congress and state legislatures to
consider whether and where additional civil
rights protection may be needed (as Congress
has been doing this year)-^=-// without
Seeproposed Fair Housing Amendments Act of
1988; H.R. 1158. Congress has previously enacted the
Immigration Reform and Control Act of 1986, covering
certain employment related discrimination based on
alienage and national origin. IRCA §102, 8 USC §1342b
(Supp. IV 1986).
- 127 -
endangering the policies of existing statutory-
schemes or burdening the courts with multi
court litigation.
-128-
CONCLUSION
For the reasons stated, the Court
should reconsider and overrule the holding in
Runyon that §1981 prohibits purely private act
of discrimination on the basis of race.
Respectfully submitted,
H. LEE DAVIS, JR.
HUTCHINS, TYNDALL
DOUGHTON & MOORE
115 West Third Ave.
Winston Salem,
N. Carolina 27101
(919) 725-8385
ROGER S. KAPLAN*
ANTHONY H. ATLAS
SARA J. HERRIN
JACKSON, LEWIS, SCHNITZLER
AND KRUPMAN
261 Madison Avenue
New York, New York 10016
(212) 697-8200
EARL M. MALTZ
112 Orchard Way
Rosemont,
Pennsylvania 19010
(215) 527-5352
GARY R. KESSLER
JACKSON, LEWIS, SCHNITZLER
AND KRUPMAN
700 Peachtree Center-South
Tower
225 Peachtree street, N.E.
Atlanta, Georgia 30303
(404)525-8200
*Counsel of Record
Attorneys for Respondent
APPENDICES
(1) THE CIVIL RIGHTS ACT OF 1866,
ACT OF APRIL 9, 1866
CH. 31, 14 STAT. 27 (1866)
April 9, 1866 CHAP. XXXI -An Act to protect all per
sons in the United States in their Civil Rights, and
furnish the Means of their Vindication.
Who are citizens
of the United
States,
their rights and
obligations.
Be it enacted by the Senate and
House of Representatives of the
United States of American in
Congress assembled, That all
persons born in the United
States and not subject to any
foreign power, excluding
Indians not taxed, are hereby
declared to be citizens of the
United States; and such
citizens, of every race and
color, without regard to any
previous condition of slavery
or involuntary servitude,
except as a punishment for
crime whereof the party shall
have been duly convicted, shall
have the same right, in every
State and Territory in the
United States, to make and
enforce contracts, to sue, be
parties, and give evidence, to
inherit, purchase, lease, sell,
hold, and convey real and
personal property, and to full
and equal benefit of all laws
and proceedings for the
security of person and
property, as is enjoyed by
white citizens, and shall be
subject to like punishment,
pains, and penalties, and to
none other, any law statute,
ordinance, regulation, or
custom to the contrary
notwithstanding.
-A2-
Penalty for
depriving any
person of any
right protected
by this act, by
reason of color
or race, & c.
SEC. 2. And b e it f u r t h e r
e n a c t e d , That any person who,
under color of any law,
statute, ordinance, regulation,
or custom, shall subject, or
cause to be subjected, any
inhabitant of any State or
Territory to the deprivation of
any right secured or protected
by this act, or to different
punishment, pains, or penalties
on account of such person
having at any time been held in
a condition of slavery or
involuntary servitude, except
as a punishment for crime
whereof the party shall have
been duly convicted, or by
reason of his color or race,
than is prescribed for the
punishment of white persons,
shall be deemed guilty of a
misdemeanor, and, on
conviction, shall be punished
by fine not exceeding one
thousand dollars, or
imprisonment not exceeding one
year, or both, in the
discretion of the court.
Courts of the
United States to
have j u r i s
d i c t i o n of
offenses under
this act.
SEC. 3. And b e i t f u r t h e r
e n a c t e d , That the district
courts of the United States,
within their respective
districts, shall have,
exclusively of the courts of
the several States, cognizance
of all crimes and offenses
committed against the
provisions of this act, and
-A3-
Suits commenced
in State courts
may be removed
on defendant's
motion.
1865, ch. 90.
Vol. xiii, p.
507
also, concurrently with the
circuit courts of the United
States, of all causes, civil
and criminal, affecting persons
who are denied or cannot
enforce in the courts or
judicial tribunals of the State
or locality where they may be
any of the rights secured to
them by the first section of
this act; and if any suit or
prosecution, civil or criminal,
has been or shall be commenced
in any State court, against any
such person, for any cause
whatsoever, or against any
officer, civil or military, or
other person, for any arrest or
imprisonment, trespasses, or
wrongs done or committed by
virtue or under color of
authority derived from this act
or the act establishing a
Bureau for the relief of
Freedmen and Refugees, and all
acts amendatory thereof, or for
refusing to do any act upon the
ground that it would be
inconsistent with this act,
such defendant shall have the
right to remove such cause for
trial to the proper district or
circuit court in the manner
prescribed by the "Act relating
to habeas corpus and regulating
judicial proceedings in certain
cases," approved March three,
eighteen hundred and sixty-
three, and all acts amendatory
thereof. The jurisdiction in
- A 4 -
1863, ch. 87. civil and criminal matters
Vol. xii, p. hereby conferred on the
7 3 5 . ‘ district and circuit courts of
the United States shall be
Jurisdiction to exercised and enforced in
be enforced conformity with the laws of the
according to the United States, so far as such
laws of the laws are suitable to carry the
United States, same into effect; but in all
or the common cases where such laws are not
law, & C . adapted to the object, or are
deficient in the provisions
necessary to furnish suitable
remedies and punish offences
against law, the common law, as
modified and changed by the
constitution and statutes of
the State wherein the courts
having jurisdiction of the
cause, civil or criminal, is
held, so far as the same is not
inconsistent with the
Constitution and laws of the
United States, shall be
extended to and govern said
courts in the trial and
disposition of such cause, and,
if of a criminal nature, in the
infliction of punishment on the
party found guilty.
District Attor- Sec. 4. And b e it f u r t h e r
neys, &c. , to e n a c t e d , That the district
institute pro- attorneys, marshals, and deputy
ceedings against marshals of the United States,
all violating the commissioners appointed by
this act. the circuit and territorial
courts of the United States,
with powers of arresting,
imprisoning, or bailing
offenders against the laws of
the United States, the officers
and agents of the Freedmen1s
-A5-
Number of com-
m i s s i o n e r s
appointed by
circuit and
t e r r i t o r i a l
courts to be
increased; their
authority.
Bureau, and every other officer
who may be specially empowered
by the President of the United
States, shall be, and they are
hereby, specially authorized
and required, at the expense of
the United States, to institute
proceedings against all and
every person who shall violate
the provisions of this act, and
cause him or them to be
arrested and imprisoned, or
bailed, as the case may be, for
trial before such court of the
United States or territorial
court as by this act has
cognizance of the offence. And
with a view to affording
reasonable protection to all
persons in their constitutional
rights of equality before the
law, without distinction of
race or color, or previous
condition of slavery or
involuntary servitude, except
as a punishment for crime,
whereof the party shall have
been duly convicted, and to the
prompt discharge of the duties
of this act, it shall be the
duty of the circuit courts of
the United States and the
superior courts of the
Territories of the United
States, from time to time, to
increase the number of
commissioners, so as to afford
a speedy and convenient means
for the arrest and examination
of persons charged with a
violation of this act; and such
commissioners are hereby
authorized and required to
-A6-
exercise and discharge all the
powers and duties conferred on
them by this act, and the same
duties with regard to offences
created by this act, as they
are authorized by law to
exercise with regard to other
offences against the laws of
the United States.
Marshals, &c. ,
to obey all
precepts under
this act.
Penalty for
refusal, & c.
Commis sloners
may ap point
p e r s o n s to
e x e c u t e
warrants.
SEC. 5. And b e i t f u r t h e r
e n a c t e d , That it shall be the
duty of all marshals and deputy
marshals to obey and execute
all warrants and precepts
issued under the provisions of
this act, when to them
directed; and should any
marshal or deputy marshal
refuse to receive such warrant
or other process when tendered,
or to use all proper means
diligently to execute the same,
he shall, on conviction
thereof, be fined in the sum of
one thousand dollars, to the
use of the person upon whom the
whom the accused is alleged to
have committed the offence.
And the better to enable the
said commissioner to execute
their duties faithfully and
efficiently, in conformity with
the Constitution of the United
States and the requirements of
this act, they are hereby
authorized and empowered,
within their counties
respectively, to appoint, in
writing, under their hands, any
one or more suitable persons,
from time to time, to execute
all such warrants and other
-A7-
procass as may be issued by
them in the lawful performance
of their respective duties; and
the persons so appointed to
execute any warrant or process
Authority of as aforesaid shall have
such persons. authority to summon and call to
their aid the bystanders or
posse comitatus of the proper
county, or such portion of the
land or naval forces of the
United States, or the militia,
as may be necessary to the
performance of the duty with
which they are charged, and to
insure a faithful observance of
the clause of the Constitution
which prohibits slavery, in
conformity with the provisions
of this act; and said warrants
Warrants to run shall run and be executed by
where. said officers anywhere in the
State or Territory within which
they are issued.
P e nalty for
obs t r u c t i n g
process under
this act.
, &c;
SEC. 6. And b e i t f u r t h e r
e n a c t e d , That any person who
shall knowingly and wilfully
obstruct, hinder, or prevent
any officer, or other person
any warrant or process issued
under the provision of this
act, or charged with the
execution of any person or
persons lawfully assisting him
or them, from arresting any
person for whose apprehension
such warrant or process may
have been issued, or shall
rescue or attempt to rescue
such person from the custody of
the officer, other person or
persons, or those lawfully
for rescue
-A8-
for harboring,
&c.
Fees of district
a t t o r n e y s ,
m a r s h a l s ,
c l e r k s ,
commi s s ione r s ,
&c;
assisting as aforesaid, when so
arrested pursuant to the
authority herein given and
declared, or shall aid, abet,
or assist any for aiding to
escape; person so arrested as
aforesaid, directly or
indirectly, to escape from the
custody of the officer or other
person legally authorized as
aforesaid, or shall harbor or
conceal any person for whose
arrest a warrant or process
shall have been issued as
aforesaid, so as to prevent his
discovery and arrest after
notice or knowledge of the fact
that a warrant has been issued
for the apprehension of such
person, shall, for either of
said offences, be subject to a
fine not exceeding one thousand
dollars, and imprisonment not
exceeding six months, by
indictment and conviction
before the district court of
the United States for the
district in which said offences
may have been committed, or
before the proper Court of
criminal jurisdiction, if
committed within any one of the
organized Territories of the
United States.
Sec. 7. And b e i t f u r t h e r
e n a c t e d , That the district
attorneys, the marshals, their
deputies, and the clerks of the
said district and territorial
courts shall be paid for their
services the like fees as may
be allowed to them for similar
-A9-
services in other cases; and in
all cases where the proceedings
are before a commissioner, he
shall be entitled to a fee of
ten dollars in full for his
services in each case,
inclusive of all services
incident to such arrest and
examination. The person or
persons authorized to execute
the process to be issued by
such commissioners for the
arrest of offenders against the
provisions of this act shall be
entitled to a fee of five
dollars for each person he or
they may arrest and take before
any such commissioner as
aforesaid, with such other fees
as may be deemed reasonable by
such commissioner for such
other additional services as
may be necessarily performed by
him or them, such as attending
at the examination, keeping the
prisoner in custody, and
providing him with food and
lodging during his detention,
and until the final
determination of such
commissioner, and in general
for performing such other
duties as may be reguired in
the premises; such fees to be
made up in conformity with the
fees usually charged by the
officers of the courts of
justice within the proper
-AlO-
to be paid from
the treasury of
the U n i t e d
States, and to
be recoverable
from defendant
when convicted.
district or county, as near as
may be practicable, and paid
out of the Treasury of the
United States on the
certificate of the judge of the
district within which the
arrest is made, and to be
recoverable from the defendant
as part of the judgment in case
of conviction.
President may
d i r e c t the
judge, &c., to
attend, &c., for
the more speedy
trial of persons
charged with
violating this
act;
SEC. 8. And b e i t f u r t h e r
e n a c t e d , That whatever the
President of the United States
shall have reason to believe
that offences have been or are
likely to be committed against
the provisions of this act
within any judicial district,
it shall be lawful for him, in
his discretion, direct the
judge, marshal, and district
attorney of such district to
attend at such place within the
district, and for such time as
he may designate, for the
purpose of the more speedy
arrest and trial of persons
charged with a violation of
this act; and it shall be the
duty of every judge or other
officer, when any such
requisition shall be received
by him, to attend at the place
and for the time therein
designated.
-All
may enforce the
act with the
military and
naval power.
SEC. 9. And be it further enacted,
That it shall be lawful for the
President of the United States,
or such person as he may
empower for that purpose, to
employ such part of the land or
naval forces of the United
States, or of the militia, as
shall be necessary to prevent
the violation and enforce the
due execution of this act.
Appeal to the
supreme court of
the U n i t e d
States.
SEC. 10. And be it further enacted,
That upon all questions of law
arising in any cause under the
provisions of this act a final
appeal may be taken to the
Supreme Court of the United
States.
-A12-
ENFORCEMENT ACT OF 1870,
CH. 114, 15 STAT. 140-46
An Act to enforce the Right of Citizens
of the United States to vote in the
several States of this Union, and for
other Purposes.
* * *
SECTION 16. And be it further enacted, That all
persons within the jurisdiction of the United
States shall have the same right in every
State and Territory in the United States to
make and enforce contracts, to sue, be
parties, give evidence, and to the full and
equal benefit of all laws and proceedings for
the security of person and property as is
enjoyed by white citizens, and shall be
subject to like punishment, pains, penalties,
taxes, licenses, and exactions of every kind,
and none other, any law, statute, ordinance,
regulation, or custom to the contrary
notwithstanding. No tax or charge shall be
imposed or enforced by any State upon any
person immigrating thereto from a foreign
country which is not equally imposed and
enforced upon every person immigrating to such
State from any other foreign country; and any
law of any State in conflict with this
provision is hereby declared null and void.
SECTION 17. And be it further enacted, That
any person who, under color of any law,
statute, ordinance, regulation, or custom,
shall subject or cause to be subjected, any
inhabitant of any State or Territory to the
deprivation of any right secured or protected
by the last preceding section of this act, or
to different punishment, pains, or penalties
on account of such person being an alien, or
by reason of his color or race, than is
prescribed for the punishment of citizens,
- A 1 3 -
shall be deemed guilty of a misdemeanor, and,
on conviction, shall be punished by fine not
exceeding one thousand dollars, or
imprisonment not exceeding one year, or both,
in the discretion of the court.
SECTION 13. And be it further enacted, That
the act to protect all persons in the United
States in their civil rights, and furnish the
means of their vindication, passed April nine,
eighteen hundred and sixty-six, is hereby re
enacted; and sections sixteen and seventeen
hereof shall be enforced according to the
provisions of said act.
(3) TITLE XXIV
CIVIL RIGHTS
REVISED STATUTES OF THE UNITED STATES
PASSED AT THE FIRST SESSION OF THE FOURTY-
THIRD CONGRESS, 1873-'74
E q u a l r i g h t s
under the law.
31 May, 1870, c.
114, s. 16, v.
16, p. 144.
SEC. 1977. All persons within
the jurisdiction of the United
States shall have the same
right in every State and
Territory to make and enforce
contracts, to sue, be parties,
give evidence, and to the full
and equal benefit of all laws
and proceeding for the security
of persons and property as is
enjoyed by white citizens, and
shall be subject to like
punishment, pains, penalties,
taxes, licenses, and exactions
of every kind, and to no other.
[See (858]
-A14-
R i g h t s of
citizens in
respect to real
and personal
p r o p e r t y .
9 April, 1866,
c . 31, s. 1, v.
14, p .27.
SEC. 1978. All citizens of the
United States shall have the
same right, in every State and
Territory, as is enjoyed by
white citizens thereof to
inherit, purchase, lease, sell,
hold, and convey real and
personal property.
Civil action for
deprivation of
rights.
20 April, 1871,
c . 22, s. 1, v.
17, p. 13.
SEC. 1979. Every person who,
under color of any statute,
ordinance, regulation, custom,
or usage, of any State or
Territory, subjects, or causes
to be subjected, any citizen of
the United States or other
person within the jurisdiction
thereof to the deprivation of
any rights, privileges, or
immunities secured by the
Constitution and laws, shall be
liable to the party injured in
an action at law, suit in
equity, or other proper
proceeding for redress. [See
{{563-629. ]
-A15-
§1981. Equal rights under the law.
All persons within the jurisdiction of
the United States shall have the same right in
every State and territory to make and enforce
contracts, to sue, be praties, give evidence,
and to the full and equal benefit of all laws
and proceedings for the security of person and
property as is enjoyed by white citizens, and
shall be subject to like punishment, pains,
penalties, taxes, licenses, and exaction of
every kind and to no other.
(5) §1982. Property rights of citizens
All citizens of the United States shall
have the same right, in every State and
Territority, as is enjoyed by white citizens
thereof to inherit, purchase, lease, sell,
hold, and convey real and personal property.
R.S.§ 1978.
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