20 L.Ed.

2d 1189
88 S.Ct. 2186
392 U.S. 409

Joseph Lee JONES et ux., Petitioners,

v.
ALFRED H. MAYER CO. et al.
No. 645.
Argued April 1 and 2, 1968.
Decided June 17, 1968.

[Syllabus from pages 409-410 intentionally omitted]

Samuel H. Liberman, St. Louis, Mo., for petitioners.
Israel Treiman, St. Louis, Mo., for respondents.
Atty. Gen. Ramsey Clark for the United States, as amicus curiae, by
special leave of Court.
Mr. Justice STEWART delivered the opinion of the Court.

In this case we are called upon to determine the scope and constitutionality of
an Act of Congress, 42 U.S.C. 1982, which provides that:

'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.'

On September 2, 1965, the petitioners filed a complaint in the District Court for
the Eastern District of Missouri, alleging that the respondents had refused to
sell them a home in the Paddock Woods community of St. Louis County for the
sole reason that petitioner Joseph Lee Jones is a Negro. Relying in part upon
1982, the petitioners sought injunctive and other relief.1 The District Court
sustained the respondents' motion to dismiss the complaint,2 and the Court of
Appeals for the Eighth Circuit affirmed, concluding that 1982 applies only to
state action and does not reach private refusals to sell. 3 We granted certiorari to

consider the questions thus presented.4 For the reasons that follow, we reverse
the judgment of the Court of Appeals. We hold that 1982 bars all racial
discrimination, private as well as public, in the sale or rental of property, and
that the statute, thus construed, is a valid exercise of the power of Congress to
enforce the Thirteenth Amendment.5
I.
4

At the outset, it is important to make clear precisely what this case does not
involve. Whatever else it may be, 42 U.S.C. 1982 is not a comprehensive
open housing law. In sharp contrast to the Fair Housing Title (Title VIII) of the
Civil Rights Act of 1968, Pub.L. 90284, 82 Stat. 81, the statute in this case
deals only with racial discrimination and does not address itself to
discrimination on grounds of religion or national origin.6 It does not deal
specifically with discrimination in the provision of services or facilities in
connection with the sale or rental of a dwelling.7 It does not prohibit advertising
or other representations that indicate discriminatory preferences.8 It does not
refer explicitly to discrimination in financing arrangements9 or in the provision
of brokerage services.10 It does not empower a federal administrative agency to
assist aggrieved parties.11 It makes no provision for intervention by the
Attorney General.12 And, although it can be enforced by injunction, 13 it
contains no provision expressly authorizing a federal court to order the payment
of damages.14

Thus, although 1982 contains none of the exemptions that Congress included
in the Civil Rights Act of 1968,15 it would be a serious mistake to suppose that
1982 in any way diminishes the significance of the law recently enacted by
Congress. Indeed, the Senate Subcommittee on Housing and Urban Affairs was
informed in hearings held after the Court of Appeals had rendered its decision
in this case that 1982 might well be 'a presently valid federal statutory ban
against discrimination by private persons in the sale or lease of real property.'16
The Subcommittee was told, however, that even if this Court should so construe
1982, the existence of that statute would not 'eliminate the need for
congressional action' to spell out 'responsibility on the part of the federal
government to enforce the rights it protects.'17 The point was made that, in light
of the many difficulties confronted by private litigants seeking to enforce such
rights on their own, 'legislation is needed to establish federal machinery for
enforcement of the rights guaranteed under Section 1982 of Title 42 even if the
plaintiffs in Jones v. Alfred H. Mayer Company should prevail in the United
States Supreme Court.'18

On April 10, 1968, Representative Kelly of New York focused the attention of

the House upon the present case and its possible significance. She described the
background of this litigation, recited the text of 1982, and then added:
7

'When the Attorney General was asked in court about the effect of the old law
( 1982) as compared with the pending legislation which is being considered on
the House floor today, he said that the scope was somewhat different, the
remedies and procedures were different, and that the new law was still quite
necessary.'19

Later the same day, the House passed the Civil Rights Act of 1968. Its
enactment had no effect upon 198220 and no effect upon this litigation,21 but it
underscored the vast differences between, on the one hand, a general statute
applicable only to racial discrimination in the rental and sale of property and
enforceable only by private parties acting on their own initiative, and, on the
other hand, a detailed housing law, applicable to a broad range of
discriminatory practices and enforceable by a complete arsenal of federal
authority. Having noted these differences, we turn to a consideration of 1982
itself.

II.
9

This Court last had occasion to consider the scope of 42 U.S.C. 1982 in 1948,
in Hurd v. Hodge, 334 U.S. 24, 68 S.Ct. 847, 92 L.Ed. 1187. That case arose
when property owners in the District of Columbia sought to enforce racially
restrictive covenants against the Negro purchasers of several homes on their
block. A federal district court enforced the restrictive agreements by declaring
void the deeds of the Negro purchasers. It enjoined further attempts to sell or
lease them the properties in question and directed them to 'remove themselves
and all of their personal belongings' from the premises within 60 days. The
Court of Appeals for the District of Columbia Circuit affirmed.22 and this Court
granted certiorari 23 to decide whether 1982, then 1978 of the Revised
Statutes of 1874, barred enforcement of the racially restrictive agreements in
that case.

10

The agreements in Hurd covered only two-thirds of the lots of a single city
block, and preventing Negroes from buying or renting homes in that specific
area would not have rendered them ineligible to do so elsewhere in the city.
Thus, if 1982 had been thought to do no more than grant Negro citizens the
legal capacity to buy and rent property free of prohibitions that wholly disabled
them because of their race, judicial enforcement of the restrictive covenants at
issue would not have violated 1982. But this Court took a broader view of the
statute. Although the covenants could have been enforced without denying the

general right of Negroes to purchase or lease real estate, the enforcement of

those covenants would nonetheless have denied the Negro purchasers 'the same
right 'as is enjoyed by white citizens * * * to inherit, purchase, lease, sell, hold,
and convey real and personal property." 334 U.S., at 34, 68 S.Ct., at 852. That
result, this Court concluded, was prohibited by s 1982. To suggest otherwise,
the Court said, 'is to reject the plain meaning of language.' Ibid.
11

Hurd v. Hodge, supra, squarely held, therefore, that a Negro citizen who is
denied the opportunity to purchase the home he wants '(s)olely because of (his)
race and color,' 334 U.S., at 34, 68 S.Ct., at 852, has suffered the kind of injury
that 1982 was designed to prevent. Accord, Buchanan v. Warley, 245 U.S. 60,
79, 38 S.Ct. 16, 19, 62 L.Ed. 149; Harmon v. Tyler, 273 U.S. 668, 47 S.Ct. 471,
71 L.Ed. 831; City of Richmond v. Deans, 281 U.S. 704, 50 S.Ct. 407, 74 L.Ed.
1128. The basic source of the injury in Hurd was, of course, the action of
private individualswhite citizens who had agreed to exclude Negroes from a
residential area. But an arm of the Governmentin that case, a federal court
had assisted in the enforcement of that agreement.24 Thus Hurd v. Hodge,
supra, did not present the question whether purely private discrimination,
unaided by any action on the part of government, would violate 1982 if its
effect were to deny a citizen the right to rent or buy property solely because of
his race or color.

12

The only federal court (other than the Court of Appeals in this case) that has
ever squarely confronted that question held that a wholly private conspiracy
among white citizens to prevent a Negro from leasing a farm violated 1982.
United States v. Morris, D.C., 125 F. 322. It is true that a dictum in Hurd said
that 1982 was directed only toward 'governmental action,' 334 U.S., at 31, 68
S.Ct., at 851, but neither Hurd nor any other case before or since has presented
that precise issue for adjudication in this Court.25 Today we face that issue for
the first time.

13

It is true that a dictum in Hurd v. Hodge, 334 U.S. 24, 31, 68 S.Ct. 847, 851,
charracterized Corrigan v. Buckley, 271 U.S. 323, 46 S.Ct. 521, 70 L.Ed. 969,
as having 'held' that '(t)he action toaward which the provisions of the statute * *
* (are) directed is governmental action.' 334 U.S., at 31, 68 S.Ct., at 851. But
no such statement appears in the Corrigan opinion, and a careful examination of
Corrigan reveals that it cannot be read as authority for the proposition
attributed to it in Hurd. In Corrigan, suits had been brought to enjoin a
threatened violation of certain restrictive covenants in the District of Columbia.
The courts of the District had granted relief, see 55 App.D.C. 30, 299 F. 899,
and the case reached this Court on appeal. As the opinion in Corrigan
specifically recognized, no claim that the covenants could not validly be

enforced against the appellants had been raised in the lower courts, and no such
claim was properly before this Court. 271 U.S., at 330331, 46 S.Ct., at 523
524. The only question presented for decision was whether the restrictive
covenants themselves violated the Fifth, Thirteenth, and Fourteenth
Amendments, and 1977, 1978, and 1979 of the Revised Statutes (now 42
U.S.C. 1981, 1982, and 1983). Ibid. Addressing itself to that narrow
question, the Court said that none of the provisions relied upon by the
appellants prohibited private individuals from 'enter(ing) into * * * (contracts)
in respect to the control and disposition of their own property.' Id., at 331, 46
S.Ct., at 524. Nor, added the Court, had the appellants even claimed that the
provisions in question 'had, in and of themselves, * * * (the) effect' of
prohibiting such contracts. Ibid.
14

Even if Corrigan should be regarded as an adjudication that 42 U.S.C. 1982

(then 1978 of the Revised Statutes) does not prohibit private individuals from
agreeing not to sell their property to Negroes, Corrigan would not settle the
question whether 1982 prohibits an actual refusal to sell to a Negro.
Moreover, since the appellants in Corrigan had not even argued in this Court
that the statute prohibited private agreements of the sort there involved, it
would be a mistake to treat the Corrigan decision as a considered judgment
even on that narrow issue.

III.
15

We begin with the language of the statute itself. In plain and unambiguous
terms, 1982 grants to all citizens, without regard to race or color, 'the same
right' to purchase and lease property 'as is enjoyed by white citizens.' As the
Court of Appeals in this case evidently recognized, that right can be impaired as
effectively by 'those who place property on the market'26 as by the State itself.
For, even if the State and its agents lend no support to those who wish to
exclude persons from their communities on racial grounds, the fact remains
that, whenever property 'is placed on the market for whites only, whites have a
right denied to Negroes.'27 So long as a Negro citizen who wants to buy or rent
a home can be turned away simply because he is not white, he cannot be said to
enjoy 'the same right * * * as is enjoyed by white citizens * * * to * * *
purchase (and) lease * * * real and personal property.' 42 U.S.C. 1982.
(Emphasis added.)

16

On its face, therefore, 1982 appears to prohibit all discrimination against

Negroes in the sale or rental of property discrimination by private owners as
well as discrimination by public authorities. Indeed, even the respondents seem
to concede that, if 1982 'means what it says'to use the words of the

respondents' briefthen it must encompass every racially motivated refusal to

sell or rent and cannot be confined to officially sanctioned segregationin
housing. Stressing what they consider to be the revolutionary implications of so
literal a reading of 1982, the respondents argue that Congress cannot possibly
have intended any such result. Our examination of the relevant history,
however, persuades us that Congress meant exactly what it said.
IV.
17

In its original form, 42 U.S.C. 1982 was part of 1 of the Civil Rights Act of
1866.28 That section was cast in sweeping terms:

18

'Be it enacted by the Senate and House of Representatives of the United States
of America in Congress assembled, That all persons born in the United States
and not subject to any foreign power, * * * 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, * * * 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.'29

19

The crucial language for our purposes was that which guaranteed all citizens
'the same right, in every State and Territory in the United States, * * * to
inherit, purchase, lease, sell, hold, and convey real and personal property * * *
as is enjoyed by white citizens * * *.' To the Congress that passed the Civil
Rights Act of 1866, it was clear that the right to do these things might be
infringed not only by 'State or local law' but also by 'custom, or prejudice.'30
Thus, when Congress provided in 1 of the Civil Rights Act that the right to
purchase and lease property was to be enjoyed equally throughout the United
States by Negro and white citizens alike, it plainly meant to secure that right
against interference from any source whatever, whether governmental or
private.31

20

Indeed, if 1 had been intended to grant nothing more than an immunity from
governmental interference, then much of 2 would have made no sense at all.32
For that section, which provided fines and prison terms for certain individuals
who deprived others of rights 'secured or protcted' by 1, was carefully drafted
to exempt private violations of 1 from the criminal sanctions it imposed.33

There would, of course, have been no private violations to exempt if the only
'right' granted by 1 had been a right to be free of discrimination by public
officials. Hence the structure of the 1866 Act, as well as its language, points to
the conclusion urged by the petitioners in this case that 1 was meant to
prohibit all racially motivated deprivations of the rights enumerated in the
statute, although only those deprivations perpetrated 'under color of law' were
to be criminally punishable under 2.
21

In attempting to demonstrate the contrary, the respondents rely heavily upon the
fact that the Congress which approved the 1866 statute wished to eradicate the
recently enacted Black Codes laws which had saddled Negroes with 'onerous
disabilities and burdens, and curtailed their rights * * * to such an extent that
their freedom was of little value * * *.' Slaughter-House Cases, 16 Wall. 36, 70,
21 L.Ed. 394. 34 The respondents suggest that the only evil Congress sought to
eliminate was that of racially discriminatory laws in the former Confederate
States. But the Civil Rights Act was drafted to apply throughout the country,35
and its language was far broader than would have been necessary to strike
down discriminatory statutes.

22

That broad language, we are asked to believe, was a mere slip of the legislative
pen. We disagree. For the same Congress that wanted to do away with the
Black Codes also had before it an imposing body of evidence pointing to the
mistreatment of Negroes by private individuals and unofficial groups,
mistreatment unrelated to any hostile state legislation. 'Accounts in newspapers
North and South, Freedmen's Bureau and other official documents, private
reports and correspondence were all adduced' to show that 'private outrage and
atrocity' were 'daily inflicted on freedmen * * *.'36 The congressional debates
are replete with references to private injustices against Negroesreferences to
white employers who refused t pay their Negro workers,37 white planters who
agreed among themselves not to hire freed slaves without the permission of
their former masters,38 white citizens who assaulted Negroes 39 or who
combined to drive them out of their communities.40

23

Indeed, one of the most comprehensive studies then before Congress stressed
the prevalence of private hostility toward negroes and the need to protect them
from the resulting persecution and discrimination.41 The report noted the
existence of laws virtually prohibiting Negroes from owning or renting property
in certain towns,42 but described such laws as 'mere isolated cases,' representing
'the local outcroppings of a spirit * * * found to prevail everywhere'43a spirit
expressed, for example, by lawless acts of brutality directed against Negroes
who traveled to areas where they were not wanted.44 The report concluded that,
even if anti-Negro legislation were 'repealed in all the States lately in rebellion,'

equal treatment for the Negro would not yet be secured.45

24

In this setting, it would have been strange indeed if Congress had viewed its
task as encompassing merely the nullification of racist laws in the former rebel
States. That the Congress which assembled in the Nation's capital in December
1865 in fact had a broader vision of the task before it became clear early in the
session, when three proposals to invalidate discriminatory state statutes were
rejected as 'to narrowly conceived.'46 From the outset it seemed clear, at least to
Senator Trumbull of Illinois, Chairman of the Judiciary Committee, that
stronger legislation might prove necessary. After Senator Wilson of
Massachusetts had introduced his bill to strike down all racially discriminatory
laws in the South,47 Senator Trumbull said this:

25

'I reported from the Judiciary Committee the second section of the (Thirteenth
Amendment) for the very purpose of conferring upon Congress authority to see
that the first section was carried out in good faith * * * and I hold that under
that second section Congress will have the authority, when the constitutional
amendment is adopted, not only to pass the bill of the Senator from
Massachusetts, but a bill that will be much more efficient to protect the
freedman in his rights. * * * And, sir, when the constitutional amendment shall
have been adopted, if the information from the South be that the men whose
liberties are secured by it are deprived of the privilege to go and come when
they please, to buy and sell when they please, to make contracts and enforce
contracts, I give notice that, if no one else does, I shall introduce a bill and urge
its passage through Congress that will secure to those men every one of these
rights: they would not be freemen without them. It is idle to say that a man is
free who cannot go and come at pleasure, who cannot buy and sell, who cannot
enforce his rights. * * * (So) when the constitutional amendment is adopted I
trust we may pass a bill, if the action of the people in the southern States should
make it necessary, that will be much more sweeping and efficient than the bill
under consideration.'48

26

Five days later, on December 18, 1865, the Secretary of State officially certified
the ratification of the Thirteenth Amendment. The next day Senator Trumbull
again rose to speak. He had decided, he said, that the 'more sweeping and
efficient' bill of which he had spoken previously ought to be enacted

27

'at an early day for the purpose of quieting apprehensions in the minds of many
friends of freedom lest by local legislation or a prevailing public sentiment in
some of the States persons of the African race should continue to be oppressed
and in fact deprived of their freedom * * *.'49

28

On January 5, 1866, Senator Trumbull introduced the bill he had in mindthe

bill which later became the Civil Rights Act of 1866.50 He described its
objectives in terms that belie any attempt to read it narrowly:

29

'Mr. President, I regard the bill to which the attention of the Senate is now
called as the most important measure that has been under its consideration since
the adoption of the constitutional amendment abolishing slavery. That
amendment declared that all persons in the United States should be free. This
measure is intended to give effect to that declaration and secure to all persons
within the United States practical freedom. There is very little importance in the
general declaration of abstract truths and principles unless they can be carried
into effect, unless the persons who are to be affected by them have some means
of availing themselves of their benefits.'51

30

Of course, Senator Trumbull's bill would, as he pointed out, 'destroy all (the)
discriminations' embodied in the Black Codes,52 but it would do more: It would
affirmatively secure for all men, whatever their race or color, what the Senator
called the 'great fundamental rights':

31

'the right to acquire property, the right to go and come at pleasure, the right to
enforce rights in the courts, to make contracts, and to inherit and dispose of
property.'53

32

As to those basic civil rights, the Senator said, the bill would 'break down all
discrimination between black men and white men.'54

33

That the bill would indeed have so sweeping an effect was seen as its great
virtue by its friends55 and as its great danger by its enemies56 but was disputed
by none. Opponents of the bill charged that it would not only regulate state laws
but would directly 'determine the persons who (would) enjoy * * * property
within the States.'57 threatening the ability of white citizens 'to determine who
(would) be members of (their) communit(ies) * * *.'58 The bill's advocates did
not deny the accuracy of those characterizations. Instead, they defended the
propriety of employing federal authority to deal with 'the white man * * *
(who) would invoke the power of local prejudice' against the Negro.59 Thus,
when the Senate passed the Civil Rights Act on February 2, 1866, 60 it did so
fully aware of the breadth of the measure it had approved.

34

In the House, as in the Senate, much was said about eliminating the infamous
Black Codes.61 But, like the Senate, the House was moved by a larger objective
that of giving real content to the freedom guaranteed by the Thirteenth

Amendment. Representative Thayer of Pennsylvania put it this way:

35

'(W)hen I voted for the amendment to abolish slavery * * * I did not suppose
that I was offering * * * a mere paper guarantee. And when I voted for the
second section of the amendment, I felt * * * certain that I had * * * given to
Congress ability to protect * * * the rights which the first section gave * * *.'

36

'The bill which now engages the attention of the House has for its object to
carry out and guaranty the reality of that great measure. It is to give to it
practical effect and force. It is to prevent that great measure from remaining a
dead letter upon the constitutional page of this country. * * * The events of the
last four years * * * have changed (a) large class of people * * * from a
condition of slavery to that of freedom. The practical question now to be
decided is whether they shall be in fact freemen. It is whether they shall have
the benefit of this great charter of liberty given to them by the American
people.' 62

37

Representative Cook of Illinois thought that, without appropriate federal

legislation, any 'combination of men in (a) neighborhood (could) prevent (a
Negro) from having any chance' to enjoy those benefits.63 To Congressman
Cook and others like him, it seemed evident that, with respect to basic civil
rights including the 'right to * * * purchase, lease, sell, hold, and convey * * *
property,' Congress must provide that 'there * * * be no discrimination' on
grounds of race or color.64

38

It thus appears that, when the House passed the Civil Rights Act on March 13,
1866,65 it did so on the same assumption that had prevailed in the Senate: It too
believed that it was approving a comprehensive statute forbidding all racial
discrimination affecting the basic civil rights enumerated in the Act.

39

President Andrew Johnson vetoed the Act on March 27, 66 and in the brief
congressional debate that followed, his supporters characterized its reach in
allembracing terms. One stressed the fact that 1 would confer 'the right * * *
to purchase * * * real estate * * * without any qualification and without any
restriction whatever * * *.'67 Another predicted, as a corollary, that the Act
would preclude preferential treatment for white persons in the rental of hotel
rooms and in the sale of church pews.68 Those observations elicited no reply.
On April 6 the Senate, and on April 9 the House, overrode the President's veto
by the requisite majorities, 69 and the Civil Rights Act of 1866 became law.70

40

In light of the concerns that led Congress to adopt it and the contents of the

debates that proceded its passage, it is clear that the Act was designed to do just
what its terms suggest: to prohibit all racial discrimination, whether or not
under color of law, with respect to the rights enumerated thereinincluding the
right to purchase or lease property.
41

Nor was the scope of the 1866 Act altered when it was re-enacted in 1870,
some two years after the ratification of the Fourteenth Amendment.71 It is quite
true that some members of Congress supported the Fourteenth Amendment 'in
order to eliminate doubt as to the constitutional validity of the Civil Rights Act
as applied to the States.' Hurd v. Hodge, 334 U.S. 24, 3233, 68 S.Ct. 847,
852. But it certainly does not follow that the adoption of the Fourteenth
Amendment or the subsequent readoption of the Civil Rights Act were meant
somehow to limit its application to state action. The legislative history furnishes
not the slightest factual basis for any such speculation, and the conditions
prevailing in 1870 make it highly implausible. For by that time most, if not all,
of the former Confederate States, then under the control of 'reconstructed'
legislatures, had formally repudiated racial discrimination, and the focus of
congressional concern had clearly shifted from hostile statutes to the activities
of groups like the Ku Klux Klan, operating wholly outside the law.72

42

Against this background, it would obviously make no sense to assume, without

any historical support whatever, that Congress made a silent decision in 1870 to
exempt private discrimination from the operation of the Civil Rights Act of
1866.73 'The cardinal rule is that repeals by implication are not favored.'
Posadas v. National City Bank, 296 U.S. 497, 503, 56 S.Ct. 349, 352, 80 L.Ed.
351. All Congress said in 1870 was that the 1866 law 'is hereby re-enacted.'
That is all Congress meant.

43

As we said in a somewhat different setting two Terms ago, 'We think that
history leaves no doubt that, if we are to give (the law) the scope that its origins
dictate, we must accord it a sweep as broad as its language.' United States v.
Price, 383 U.S. 787, 801, 86 S.Ct. 1152, 1160. 'We are not at liberty to seek
ingenious analytical instruments,' ibid., to carve from 1982 an exception for
private conducteven though its application to such conduct in the present
context is without established precedent. And, as the Attorney General of the
United States said at the oral argument of this case, 'The fact that the statute lay
partially dormant for many years cannot be held to diminish its force today.'

V.
44

The remaining question is whether Congress has power under the Constitution
to do what 1982 purports to do: to prohibit all racial discrimination, private

and public, in the sale and rental of property. Our starting point is the
Thirteenth Amendment, for it was pursuant to that constitutional provision that
Congress originally enacted what is now 1982. The Amendment consists of
two parts. Section 1 states:
45

'Neither slavery nor involuntary servitude, except as a punishment for crime

whereby the party shall have been duly convicted, shall exist within the United
States, or any place subject to their jurisdiction.'
Section 2 provides:

46

'Congress shall have power to enforce this article by appropriate legislation.'

47

As its text reveals, the Thirteenth Amendment 'is not a mere prohibition of state
laws establishing or upholding slavery, but an absolute declaration that slavery
or involuntary servitude shall not exist in any part of the United States.' Civil
Rights Cases, 109 U.S. 3, 20, 3 S.Ct. 18, 28, 27 L.Ed. 835. It has never been
doubted, therefore, 'that the power vested in Congress to enforce the article by
appropriate legislation,' ibid., includes the power to enact laws 'direct and
primary, operating upon the acts of individuals, whether sanctioned by state
legislation or not.' Id., at 23, 3 S.Ct., at 30.74

48

Thus, the fact that 1982 operates upon the unofficial acts of private
individuals, whether or not sanctioned by state law, presents no constitutional
problem. If Congress has power under the Thirteenth Amendment to eradicate
conditions that prevent Negroes from buying and renting property because of
their race or color, then no federal statute calculated to achieve that objective
can be thought to exceed the constitutional power of Congress simply because
it reaches beyond state action to regulate the conduct of private individuals. The
constitutional question in this case, therefore, comes to this: Does the authority
of Congress to enforce the Thirteenth Amendment 'by appropriate legislation'
include the power to eliminate all racial barriers to the acquisition of real and
personal property? We think the answer to that question is plainly yes.

49

'By its own unaided force and effect,' the Thirteenth Amendment 'abolished
slavery, and established universal freedom.' Civil Rights Cases, 109 U.S. 3, 20,
3 S.Ct. 18, 28. Whether or not the Amendment itself did any more than thata
question not involved in this caseit is at least clear that the Enabling Clause
of that Amendment empowered Congress to do much more. For that clause
clothed 'Congress with power to pass all laws necessary and proper for
abolishing all badges and incidents of slavery in the United States.' Ibid.

(Emphasis added.)
50

Those who opposed passage of the Civil Rights Act of 1866 argued in effect
that the Thirteenth Amendment merely authorized Congress to dissolve the
legal bond by which the Negro slave was held to his master.75 Yet many had
earlier opposed the Thirteenth Amendment on the very ground that it would
give Congress virtually unlimited power to enact laws for the protection of
Negroes in every State.76 And the majority leaders in Congresswho were,
after all, the authors of the Thirteenth Amendmenthad no doubt that its
Enabling Clause contemplated the sort of positive legislation that was
embodied in the 1866 Civil Rights Act. Their chief spokesman, Senator
Trumbull of Illinois, the Chairman of the Judiciary Committee, had brought the
Thirteenth Amendment to the floor of the Senate in 1864. In defending the
constitutionality of the 1866 Act, he argued that, if the narrower construction of
the Enabling Clause were correct, then

51

'the trumpet of freedom that we have been blowing throughout the land has
given an (uncertain sound,' and the promised freedom is a delusion. Such was
not the intention of Congress, which proposed the constitutional amendment,
nor is such the fair meaning of the amendment itself. * * * I have no doubt that
under this provision * * * we may destroy all these discriminations in civil
rights against the black man; and if we cannot, our constitutional amendment
amounts to nothing. It was for that purpose that the second clause of that
amendment was adopted, which says that Congress shall have authority, by
appropriate legislation, to carry into effect the article prohibiting slavery. Who
is to decide what that appropriate legislation is to be? The Congress of the
United States; and it is for Congress to adopt such appropriate legislation as it
may think proper, so that it be a means to accomplish the end.'77

52

Surely Senator Trumbull was right. Surely Congress has the power under the
Thirteenth Amendment rationally to determine what are the badges and the
incidents of slavery, and the authority to translate that determination into
effective legislation. Nor can we say that the determination Congress has made
is an irrational one. For this Court recognized long ago that, whatever else they
may have encompassed, the badges and incidents of slaveryits 'burdens and
disabilities'included restrations upon 'those fundamental rights which are the
essence of civil freedom, namely, the same right * * * to inherit, purchase,
lease, sell and convey property, as is enjoyed by white citizens.' Civil Rights
Cases, 109 U.S. 3, 22, 3 S.Ct. 18, 29.78 Just as the Black Codes, enacted after
the Civil War to restrict the free exercise of those rights, were substitutes for
the salve system, so the exclusion of Negroes from white communities became
a substitute for the Black Codes. And when racial discrimination herds men

into ghettos and makes their ability to buy property turn on the color of their
skin, then it too is a relic of slavery.
53

Negro citizens, North and South, who saw in the Thirteenth Amendment a
promise of freedomfreedom to 'go and come at pleasure'79 and to 'buy and
sell when they please'80would be left with 'a more paper guarantee'81 if
Congress were powerless to assure that a dollar in the hands of a Negro will
purchase the same thing as a dollar in the hands of a white man. At the very
least, the freedom that Congress is empowered to secure under the Thirteenth
Amendment includes the freedom to buy whatever a white man can buy, the
right to live wherever a white man can live. If Congress cannot say that being a
free man means at least this much, then the Thirteenth Amendment made a
promise the Nation cannot keep.

54

Representative Wilson of Iowa was the floor manager in the House for the
Civil Rights Act of 1866. In urging that Congress had ample authority to pass
the pending bill, he recalled the celebrated words of Chief Justice Marshall in
McCulloch v. State of Maryland, 4 Wheat. 316, 421, 4 L.Ed. 579:

55

'Let the end by legitimate, let it be within the scope of the constitution, and all
means which are appropriate, which are plainly adapted to that end, which are
not prohibited, but consist with the letter and spirit of the constitution, are
constitutional.'82

56

'The end is legitimate,' the Congressman said, 'because it is defined by the

Constitution itself. The end is the maintenance of freedom * * *. A man who
enjoys the civil rights mentioned in this bill cannot be reduced to slavery. * * *
This settles the appropriateness of this measure, and that settles its
constitutionality.'83

57

We agree. The judgment is reversed.

58

Reversed.

59

Mr. Justice DOUGLAS, concurring.

60

The Act of April 9, 1866, 14 Stat. 27, 42 U.S.C. 1982, provides: '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.'

61

This Act was passed to enforce the Thirteenth Amendment which in 1

abolished 'slavery' and 'involuntary servitude, except as a punishment for crime
whereof the party shall have been duly convicted' and in 2 gave Congress
power 'to enforce this article by appropriate legislation.'

62

Enabling a Negro to buy and sell real and personal property is a removal of one
of many badges of slavery.

63

'Slaves were not considered men. * * * They could own nothing; they could
make no contracts; they could hold no property, nor traffic in property; they
could not hire out; they could not legally marry nor constitute families; they
could not control their children; they could not appeal from their master; they
could be punished at will.' W. Dubois, Black Reconstruction in America 10
(1964).1

64

The true curse of slavery is not what it did to the black man, but what it has
done to the white man. For the existence of the institution produced the notion
that the white man was of superior character, intelligence, and morality. The
blacks were little more than livestockto be fed and fattened for the economic
benefits they could bestow through their labors, and to be subjected to
authority, often with cruelty, to make clear who was master and who slave.

65

Some badges of slavery remain today. While the institution has been outlawed,
it has remained in the minds and hearts of many white men. Cases which have
come to this Court depict a spectacle of slavery unwilling to die. We have seen
contrivances by States designed to thwart Negro voting, e.g., Lane v. Wilson,
307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281. Negroes have been excluded over
and again from juries solely on account of their race, e.g., Strauder v. West
Virginia, 100 U.S. 303, 25 L.Ed. 664, or have been forced to sit in segregated
seats in courtrooms, Johnson v. State of Virginia, 373 U.S. 61, 83 S.Ct. 1053,
10 L.Ed.2d 195. They have been made to attend segregated and inferior
schools, e.g., Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98
L.Ed. 873, or been denied entrance to colleges or graduate schools because of
their color, e.g., Commonwealth of Pennsylvania v. Board of Directors of City
of Trusts, 353 U.S. 230, 77 S.Ct. 806, 1 L.Ed.2d 792; Sweatt v. Painter, 339
U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114. Negroes have been prosecuted for
marrying whites, e.g., Loving v. Commonwealth Virginia, 388 U.S. 1, 87 S.Ct.
1817, 18 L.Ed.2d 1010. They have been forced to live in segregated residential
districts, Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149 and
residents of white neighborhoods have denied them entrance, e.g., Shelley v.
Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161. Negroes have been forced to

use segregated facilities in going about their daily lives, having been excluded
from railway coaches, Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41
L.Ed. 256; public parks, New Orleans City Park Improvement Assn. v. Detiege,
358 U.S. 54, 79 S.Ct. 99, 3 L.Ed.2d 46; restaurants, Lombard v. State of
Louisiana, 373 U.S. 267, 83 S.Ct. 1122, 10 L.Ed.2d 338; public beaches,
Mayor and City Council of Baltimore v. Dawson, 350 U.S. 877, 76 S.Ct. 133,
100 L.Ed. 774; municipal golf courses, Holmes v. City of Atlanta, 350 U.S.
879, 76 S.Ct. 141, 100 L.Ed. 776; amusement parks, Griffin v. State of
Maryland, 378 U.S. 130, 84 S.Ct. 1770, 12 L.Ed.2d 754; buses, Gayle v.
Browder, 352 U.S. 903, 77 S.Ct. 145, 1 L.Ed.2d 114; public libraries, Brown v.
State of Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637. A state court
judge in Alabama convicted a Negro woman of contempt of court because she
refused to answer him when he addressed her as 'Mary,' although she had made
the simple request to be called 'Miss Hamilton.' Hamilton v. State of Alabama,
376 U.S. 650, 84 S.Ct. 982, 11 L.Ed.2d 979.
66

That brief sampling of discriminatory practices, many of which continue today,

stands almost as an annotation to what Frederick Douglass (18171895) wrote
nearly a century earlier:

67

'Of all the races and varieties of men which have suffered from this feeling, the
colored people of this country have endured most. They can resort to no
disguises which will enable them to escape its deadly aim. They carry in front
the evidence which marks them for persecution. They stand at the extreme
point of difference from the Caucasian race, and their African origin can be
instantly recognized, though they may be several removes from the typical
African race. They may remonstrate like Shylock'Hath not a Jew eyes? hath
not a Jew hands, organs, dimensions, senses, affections, passions? fed with the
same food, hurt with the same weapons, subject to the same diseases, healed by
the same means, warmed and cooled by the same summer and winter, as a
Christian is?"but such eloquence is unavailing. They are Negroesand that
is enough, in the eye of this unreasoning prejudice, to justify indignity and
violence. In nearly every department of American life they are confronted by
this insidious influence. It fills the air. It meets them at the workshop and
factory, when they apply for work. It meets them at the church, at the hotel, at
the ballot-box, and worst of all, it meets them in the jurybox. Without crime or
offense against law or gospel, the colored man is the Jean Valjean of American
society. He has escaped from the galleys, and hence all presumptions are
against him. The workshop denies him work, and the inn denies him shelter;
the ballot-box a fair vote, and the jury-box a fair trial. He has ceased to be the
slave of an individual, but has in some sense become the slave of society. He
may not now be bought and sold like a beast in the market, but he is the

trammeled victim of a prejudice, well calculated to repress his manly ambition,

paralyze his energies, and make him a dejected and spiritless man, if not a
sullen enemy to society, fit to prey upon life and property and to make trouble
generally.'2
68

Today the black is protected by a host of civil rights laws. But the forces of
discrimination are still strong.

69

A member of his race, duly elected by the people to a state legislature, is barred
from that assembly because of his views on the Vietnam war. Bond v. Floyd,
385 U.S. 116, 87 S.Ct. 339, 17 L.Ed.2d 235.

70

Real estate agents use artifice to avoid selling 'white property' to the blacks.3
The blacks who travel the country, though entitled by law to the facilities for
sleeping and dining that are offered all tourists, Heart of Atlanta Motel v.
United States, 379 U.S. 241, 85 S.Ct. 348, 13 L.Ed.2d 258, may well learn that
the 'vacancy' sign does not mean what it says, especially if the motel has a
swimming pool.

71

On entering a half-empty restaurant they may find 'reserved' signs on all

unoccupied tables.

72

The black is often barred from a labor union because of his race. 4

73

He learns that the order directing admission of his children into white schools
has not been obeyed 'with all deliberate speed,' Brown v. Board of Education,
349 U.S. 294, 301, 75 S.Ct. 753, 756, 99 L.Ed. 1083 but has been delayed by
numerous stratagems and devices.5 State laws, at times, have been encouraged
discrimination in housing. Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18
L.Ed.2d 830.

74

This recital is enough to show how prejudices, once part and parcel of slavery,
still persist. The men who sat in Congress in 1866 were trying to remove some
of the badges or 'customs'6 of slavery when they enacted 1982. And, as my
Brother STEWART shows, the Congress that passed the so-called Open
Housing Act in 1968 did not undercut any of the grounds on which 1982
rests.

75

Mr. Justice HARLAN, whom Mr. Justice WHITE joins, dissenting.

76

The decision in this case appears to me to be most ill-considered and illadvised.

76

The decision in this case appears to me to be most ill-considered and illadvised.

77

The petitioners argue that the respondents' racially motivated refusal to sell
them a house entitles them to judicial relief on two separate grounds. First, they
claim that the respondents acted in violation of 42 U.S.C. 1982; second, they
assert that the respondents' conduct amounted in the circumstances to 'state
action'1 and was therefore forbidden by the Fourteenth Amendment even in the
absence of any statute. The Court, without reaching the second ground alleged,
holds that the petitioners are entitled to relief under 42 U.S.C. 1982, and that
1982 is constitutional as legislation appropriate to enforce the Thirteenth
Amendment.

78

For reasons which follow, I believe that the Court's construction of 1982 as
applying to purely private action is almost surely wrong, and at the least is open
to serious doubt. The issues of the constitutionality of 1982, as construed by
the Court, and of liability under the Fourteenth Amendment alone, also present
formidable difficulties. Moreover, the political processes of our own era have,
since the date of oral argument in this case, given birth to a civil rights statute2
embodying 'fair housing' provisions3 which would at the end of this year make
available to others, though apparently not to the petitioners themselves,4 the
type of relief which the petitioners now seek. It seems to me that this latter
factor so diminishes the public importance of this case that by far the wisest
course would be for this Court to refrain from decision and to dismiss the writ
as improvidently granted.

I.
79

I shall deal first with the Court's construction of 1982, which lies at the heart
of its opinion. That construction is that the statute applies to purely private as
well as to state-authorized discrimination.

A.
80

The Court's opinion focuses upon the statute's legislative history, but it is
worthy of note that the precedents in this Court are distinctly opposed to the
Court's view of the statute.

81

In the Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835, decided less
than two decades after the enactment of the Civil Rights Act of 1866, from
which 1982 is derived, the Court said in dictum of the 1866 Act:

82

'This law is clearly corrective in its 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. * * * The civil rights bill here
referred to is analogous in its character to what a law would have been under
the original constitution, declaring that the validity of contracts should not be
impaired, and that if any person bound by a contract should refuse to comply
with it, under color or pretence that it had been rendered void or invalid by a
state law, he should be liable to an action upon it in the courts of the United
States, with the addition of a penalty for setting up such an unjust and
unconstitutional defence.' Id., at 1617, 3 S.Ct., at 25. 5
83

In Corrigan v. Buckley, 271 U.S. 323, 46 S.Ct. 521, 70 L.Ed. 969, the question
was whether the courts of the District of Columbia might enjoin prospective
breaches of racially restrictive covenants. The Court held that it was without
jurisdiction to consider the petitioners' argument that the covenant was void
because it contravened the Fifth, Thirteenth, and Fourteenth Amendments and
their implementing statutes. The Court reasoned, inter alia, that the statutes,
including the immediate predecessor of 1982,6 were inapplicable because

84

'they, like the Constitutional Amendment under whose sanction they were
enacted, do not in any manner prohibit or invalidate contracts entered into by
private individuals in respect to the control and disposition of their own
property.' 271 U.S., at 331, 46 S.Ct. at 524 7

85

In Hurd v. Hodge, 334 U.S. 24, 68 S.Ct. 847, 92 L.Ed. 1187, the issue was
again whether the courts of the District might enforce racially restrictive
covenants. At the outset of the process of reasoning by which it held that
judicial enforcement of such a covenant would violate the predecessor of
1982, the Court said:

86

'We may start with the proposition that the statute does not invalidate private
restrictive agreements so long as the purposes of those agreements are achieved
by the parties through voluntary adherence to the terms. The action toward
which the provisions of the statute under consideration is (sic) directed is
governmental action. Such was the holding of Corrigan v. Buckley * * * 334
U.S., at 31, 68 S.Ct., at 851.8

B.
87

Like the Court, I began analysis of 1982 by examining its language. In its
present form, the section provides:

88

'All citizens of the United States shall have the same right, in every State and

88

'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.'

89

The Court finds it 'plain and unambiguous, ante, at 420, that this language
forbids purely private as well as stateauthorized discrimination. With all
respect, I do not find it so. For me, there is an inherent ambiguity in the term
'right,' as used in 1982. The 'right' referred to may eithe be a right to equal
status under the law, in which case the statute operates only against statesanctioned discrimination, or it may be an 'absolute' right enforceable against
private individuals. To me, the words of the statute, taken alone, suggest the
former interpretation, not the latter.9

90

Further, since intervening revisions have not been meant to alter substance, the
intended meaning of 1982 must be drawn from the words in which it was
originally enacted. Section 1982 originally was a part of 1 of the Civil Rights
Act of 1866, 14 Stat. 27. Sections 1 and 2 of that Act provided in relevant part:

91

'That all persons born in the United States and not subject to any foreign power
* * * are hereby declared to be citizens of the United States; and such citizens,
of every race and color * * *, shall have the same right, in every State and
Territory in the United States * * * to inherit, purchase, lease, sell, hold, and
convey real and personal 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.

92

'Sec. 2. 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 * * * shall be deemed guilty of a misdemeanor * * *.'

93

It seems to me that this original wording indicates even more strongly than the
present language that 1 of the Act (as well as 2, which is explicitly so
limited) was intended to apply only to action taken pursuant to state or
community authority, in the form of a 'law, statute, ordinance, regulation, or
custom.'10 And with deference I suggest that the language of 2, taken alone,
no more implies that 2 'was carefully drafted to exempt private violations of
1 from the criminal sanctions it imposed,' see ante, at 425, than its does that 2
was carefully drafted to enforce all of the rights secured by 1.

C.

94

The Court rests its opinion chiefly upon the legislative history of the Civil
Rights Act of 1866. I shall endeavor to show that those debates do not, as the
Court would have it, overwhelmingly support the result reached by the Court,
and in fact that a contrary conclusion may equally well be drawn. I shall
consider the legislative history largely in chronological sequence, dealing
separately with the Senate and House debates.

95

The First Session of the Thirty-ninth Congress met on December 4, 1865, some
six months after the preceding Congress had sent to the States the Thirteenth
Amendment, and a few days before word was received of that Amendment's
ratification. On December 13, Senator Wilson introduced a bill which would
have invalidated all laws in the former rebel States which discriminated among
persons as to civil rights on the basis of color, and which would have made it a
misdemeanor to enact or enforce such a statute.11 On the same day, Senator
Trumbull said with regard to Senator Wilson's proposal:

96

'The bill does not go far enough, if what we have been told to-day in regard to
the treatment of freedmen in the southern States is true. * * * (U)ntil (the
Thirteenth Amendment) is adopted there may be some question * * * as to the
authority of Congress to pass such a bill as this, but after the adoption of the
constitutional amendment there can be none.

97

'The second clause of that amendment was inserted for some purpose, and I
would like to know * * * 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 should be free.'12

98

Senator Trumbull then indicated that he would introduce separate bills to

enlarge the powers of the recently founded Freedmen's Bureau and to secure the
freedmen in their civil rights, both bills in his view being authorized by the
second clause of the Thirteenth Amendment.13 Since he had just stated that the
purpose of that clause was to enable Congress to nullify acts of the state
legislatures, it seems inferable that this also also was to be the aim of the
promised bills.

99

On January 5, Senator Trumbull introduced both the Freedmen's bill and the
civil rights bill.14 The Freedmen's bill would have strengthened greatly the
existing system by which agents of the Freedmen's Bureau exercised protective
supervision over freedmen wherever they were present in large numbers. Inter
alia, the Freedmen's bill would have permitted the President, acting through the
Bureau, to extend 'military protection and jurisdiction' over all cases in which

persons in the former rebel States were

100 'in consequence of any State or local law, ordinance, police or other regulation,
custom, or prejudice, (denied or refused) any of the civil rights or immunities
belonging to white persons, including the right * * * to inherit, purchase, lease,
sell, hold and convey real and personal property, * * * on account of race * *
*.'15
101 The next section of the Freedmen's bill provided that the agents of the
Freedmen's Bureau might try and convict of a misdemeanor any person who
deprived another of such rights on account of race and 'under color of any State
or local law, ordinance, police, or other regulation or custom * * *.' Thus, the
Freedmen's bill, which was generally limited in its application to the Southern
States and which was correspondingly more sweeping in its protection of the
freedmen than the civil rights bill,16 defined both the right secured and the
denials of those rights which were criminally punishable in terms of acts done
under the aegis of a State or locality. The only significant distinction was that
denials which occurred 'in consequence of a State or local * * * prejudice'
would have entitled the victim to military protection but would not have been
criminal. In the corresponding section of the companion and generally parallel
civil rights bill, which was to be effective throughout the Nation, the reference
to 'prejudice' was omitted from the rights-defining section. This would seem to
imply that the more widely applicable civil rights bill was meant to provide
protection only against those discriminations which were legitimated by a state
or community sanction sufficiently powerful to deserve the name 'custom.'
102 The form of the Freedmen's bill also undercuts the Court's argument, ante, at
424, that if 1 of the Civil Rights Act were construed as extending only to
'state action,' then 'much of 2 (which) clearly was so limited) would have
made no sense at all.' For the similar structure of the companion Freedmen's
bill, drafted by the same hand and largely parallel in structure, would seem to
confirm that the limitation to 'state action' was deliberate.
103 The civil rights bill was debated intermittently in the Senate from January 12,
1866, until its eventual passage over the President's veto on April 6. In the
course of the debates, Senator Trumbull, who was by far the leading
spokesman for the bill, made a number of statements which can only be taken
to mean that the bill was aimed at 'state action' alone. For example, on January
29, 1866, Senator Trumbull began by citing a number of recently enacted
Southern laws depriving men of rights named in the bill. He stated that '(t)he
purpose of the bill under consideration is to destroy all these discriminations,
and carry into effect the constitutional amendment.'17 Later the same day,

Senator Trumbull quoted 2 of the bill in full, and said:

104 'This is the valuable section of the bill so far as protecting the rights of
freedmen is concerned. * * * When it comes to be understood in all parts of the
United States that any person who shall deprive another of any right * * * in
consequence of his color or race will expose himself to fine and imprisonment,
I think such acts will soon cease.'18
105 These words contain no hint that the 'rights' protected by 2 were intended to
be any less broad than those secured by 1. Of course, 2 plainly extended
only to 'state action.' That Senator Trumbull viewed 1 and 2 as co-extensive
appears even more clearly from his answer the following day when asked by
Senator Cowan whether there was 'not a provision (in the bill) by which State
officers are to be punished?' Senator Trumbull replied: 'Not State officers
especially, but everybody who violates the law. It is the intention to punish
everybody who violates the law.'19
106 On January 29, Senator Trumbull also uttered that first of several remarkably
similar and wholly unambiguous statements which indicated that the bill was
aimed only at 'state action.' He said:
107 '(This bill) may be assailed as drawing to the Federal Government powers that
properly belong to '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.'20
108 Senator Trumbull several times reiterated this view. On February 2, replying to
Senator Davis of Kentucky, he said:
109 'Why, sir, if the State of Kentucky makes no discrimination in civil rights
between its citizens, this bill has no operation whatever in the State of
Kentucky. Are all the rights of the people of Kentucky gone because they
cannot discriminate and punish one man for doing a thing that they do not
punish another for doing? The bill draws to the Federal Government no power
whatever if the States will perform their constitutional obligation.'21
110 On April 4, after the President's veto of the bill, Senator Trumbull stated that 'If
an offense is committed against a colored person simply because he is colored,

in a State where the law affords him the same protection as if he were white,
this act neither has nor was intended to have anything to do with his case,
because he has adequate remedies in the State courts * * *.'22 Later the same
day, he said:
'This bill in no manner interferes with the municipal regulations of any State
111 which protects all alike in their rights of person and property. It could have no
operation in Massachusetts, New York, Illinois, or most of the States of the
Union.'23
112 The remarks just quoted constitute the plainest possible statement that the civil
rights bill was intended to apply only to state-sanctioned conduct and not to
purely activate action. The Court has attempted to negate the force of these
statements by citing other declarations by Senator Trumbull and others that the
bill would operate everywhere in the country. See ante, at 426, n. 35. However,
the obvious and natural way to reconcile these two sets of statements is to read
the ones about the bill's nationwide application as declarations that the
enactment of a racially discriminatory law in any State would bring the bill into
effect there.24 It seems to me that very great weight must be given these
statements of Senator Trumbull, for they were clearly made to reassure
Northern and Border State Senators about the extent of the bill's operation in
their States.
113 On April 4, Senator Trumbull gave two additional indications that the bill was
intended to reach only state-sanction action. The first occurred during Senator
Trumbull's defense of the part of 3 of the bill which gave federal courts
jurisdiction 'of all causes, civil and criminal, affecting persons who are denied
or cannot enforce in the courts * * * of the State or locality where they may be
any of the rights secured to them by the first section of this act * * *.' Senator
Trumbull said:
114 'If it be necessary in order to protect the freedman in his rights that he should
have authority to go into the Federal courts in all cases where a custom prevails
in a State, or where there is a statute-law of the State discriminating against
him, I think we have the authority to confer that jurisdiction under the second
clause of the (Thirteenth Amendment).'25
115 If the bill had been intended to reach purely private discrimination it seems very
strange that Senator Trumbull did not think it necessary to defend the surely
more dubious federal jurisdiction over cases involving no state action
whatsoever. A few minutes later, Senator Trumbull reiterated that his reason

for introducing the civil rights bill was to bring about 'the passage of a law by
Congress, securing equality in civil rights when denied by State authorities to
freedmen and all other inhabitants of the United States * * *.'26
116 Thus, the Senate debates contain many explicit statements by the bill's own
author, to whom the Senate naturally looked for an explanation of its terms,
indicating that the bill would prohibit only state-sanctioned discrimination.
117 The Court puts forward in support of its construction an impressive number of
quotations from and citations to the Senate debates. However, upon more
circumspect analysis than the Court has chosen to give, virtually all of these
appear to be either irrelevant or equally consistent with a 'state action'
interpretation. The Court's mention, ante, at 427, of a reference in the Senate
debates to 'white employers who refused to pay their Negro workers' surely
does not militate against a 'state action' construction, since 'state action' would
include conduct pursuant to 'custom,' and there was a very strong 'custom' of
refusing to pay slaves for work done. The Court's citation, ante, at 427-428, of
Senate references to 'white citizens who assaulted Negroes' is not in point, for
the debate cited by the Court concerned the Freedmen's bill, not the civil rights
bill.27 The former by its terms forbade discrimination pursuant to 'prejudice,' as
well as 'custom,' and in any event neither bill provided a remedy for the victim
of a racially motivated assault.28
118 The Court's quotation, ante, at 429-430, of Senator Trumbull's December 13
reference to the then-embryonic civil rights bill is also compatible with a 'state
action' interpretation, at least when it is recalled that the unedited quotation, see
supra, at 455, includes a statement that the second clause of the Thirteenth
Amendment, the authority for the proposed bill, was intended solely as a check
on state legislatures. Senator Trumbull's declaration the following day that the
forthcoming bill would be aimed at discrimination pursuant to 'a prevailing
public sentiment' as well as to legislation, see ante, at 431, is also consistent
with a 'state action' reading of the bill, for the bill explicitly prohibited actions
done under color of 'custom' as well as of formal laws.
119 The three additional statements of Senator Trumbull and the remarks of
senatorial opponents of the bill, quoted by the Court, ante, at 431433, to
show the bill's sweeping scope, are entirely ambiguous as to whether the
speakers thought the bill prohibited only state-sanctioned conduct or reached
wholly private action as well. Indeed, if the bill's opponents thought that it
would have the latter effect, it seems a little surprising that they did not object
more strenuously and explicitly.29 The remark of Senator Lane which is quoted
by the Court, ante, at 433, to prove that he viewed the bill as reaching "the

white man * * * (who) would invoke the power of local prejudice' against the
Negro,' seems to have been quoted out of context. The quotation is taken from a
part of Senator Lane's speech in which he defended the section of the bill
permitting the President to invoke military authority when necessary to enforce
the bill. After noting that there might be occasions '(w)here organized
resistance to the legal authority assumes that shape that the officers cannot
execute a writ,'30 Senator Lane concluded that 'if (the white man) would invoke
the power of local prejudice to override the laws of the country, this is no
Government unless the military may be called in to enforce the order of the
civil courts and obedience to the laws of the country.'31 It seems to me manifest
that, taken in context, this remark is beside the point in this case.
120 The post-veto remarks of opponents of the bill, cited by the Court, ante, at 435,
also are inconclusive. Once it is recognized that the word 'right' as used in the
bill is ambiguous, then Senator Cowan's statement, ante, at 435, that the bill
would confer 'the right * * * to purchase * * * real estate * * *without any
qualification'32 must inevitably share that ambiguity. The remarks of Senator
Davis, ibid., with respect to rental of hotel rooms and sale of church pews are,
when viewed in context, even less helpful to the Court's thesis. For these
comments were made immediately following Senator Davis' plaintive
acknowledgment that 'this measure proscribes all discriminations * * * that
may be made * * * by any 'ordinance, regulation, or custom,' as well as by 'law
or statute."33 Senator Davis then observed that ordinances, regulations, and
customs presently conferred upon white persons the most comfortable
accommodations in ships and steamboats, hotels, churches, and railroad cars,
and stated that '(t)his bill * * * declares all persons who enforce these
distinctions to be criminals against the United States * * *.'34 Thus, Senator
Davis not only tied these obnoxious efects of the bill to its 'customs' provision
but alleged that they were brought about by 2 as well as 1. There is little
wonder that his remarks 'elicited no reply,' see ibid., from the bill's supporters.
121 The House debates are even fuller of statements indicating that the civil rights
bill was intended to reach only state-endorsed discrimination. Representative
Wilson was the bill's sponsor in the House. On the very first day of House
debate, March 1, Representative Wilson said in explaining the bill:
122 '(I)f the States, seeing that we have citizens of different races and colors, would
but shut their eyes to these differences and legislate, so far at least as regards
civil rights and immunities, as though all citizens were of one race or color, our
troubles as a nation would be well-nigh over. * * * 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."35
123 A few minutes later, Representative Wilson said:
124 'Before our Constitution was formed, the great fundamental rights (which are
embodied in this bill) belonged to every person who became a member of our
great national family. * * * The entire machinery of government * * * was
designed, among other things, to secure a more perfect enjoyment of these
rights. * * * I assert that we possess the power to do those things which
Governments are organized to do; that we may protect a citizen of the United
States against a violation of his rights by the law of a single State; * * * that this
power permeates our whole system, is a part of it, without which the States can
run riot over every fundamental right belonging to citizens of the United States
* * *.'36
125 These statements surely imply that Representative Wilson believed the bill to be
aimed at state-sanctioned discrimination and not at purely private
discrimination, which of course existed unhindered '(b)efore our Constitution
was formed.'
126 Other congressmen expressed similar views. On March 2, Representative
Thayer, one of the bill's supporters, said:
127 'The events of the last four years * * * have changed (the freedmen) from a
condition of slavery to that of freedom. The practical question now to be
decided is whether they shall be in fact freemen. It is whether they shall have
the benefit of this great charter of liberty given to them by the American
people.
128 'Sir, if it is competent for the new-formed Legislatures of the rebel States to
enact laws * * * which declare, for example, that they shall not have the
privilege of purchasing a home for themselves and their families; * * * then I
demand to know, of what practical value is the amendment abolishing slavery *
* *?'37
A few minutes later, he said:
129 'Do you give freedom to a man when you allow him to be deprived of those
great natural rights to which every man is entitled by nature? * * * (W)hat kind
of freedom is that by which the man placed in a state of freedom is subject to

the tyranny of laws which deprive him of (those) rights * * *?' 38

130 A little later, Representative Thayer added:
131 '(The freedmen) are entitled to the benefit of that guarantee of the
Constitutional which secures to every citizen the enjoyment of life, liberty, and
property, and no just reason exists why they should not enjoy the protection of
thatguarantee * * *.
132 'What is the necessity which gives occasion for that protection? Sir, in at least
six of the lately rebellious States the reconstructed Legislatures of those States
have enacted laws which, if permitted to be enforced, would strike a fatal blow
at the liberty of the freedmen * * *.'39
133 An opponent of the bill, Representative Bingham, said on March 9:
134 '(W)hat, then, is proposed by the provision of the first section? Simply to strike
down by congressional enactment every State constitution which makes a
discrimination on account of race or color in any of the civil rights of the
citizen.'40
135 Representative Shellabarger, a supporter of the bill, discussed it on the same
day. He began by stating that he had no doubt of the constitutionality of 2 of
the bill, provided Congress might enact 1. With respect to 1, he said:
136 'Its whole effect is not to confer or regulate rights, but to require that whatever
of these enumerated rights and obligations are imposed by State laws shall be
for and upon all citizens alike * * *. Self-evidently this is the whole effect of
this first section. It secures * * * equality of protection in those enumerated
civil rights which the States may deem proper to confer upon any races. * * * It
must * * * be noted that the violations of citizens' rights, which are reached and
punished by this bill, are those which are inflicted under 'color of law,' &c. The
bill does not reach mere private wrongs, but only those done under color of state
authority * * *. (I)ts whole force is expended in defeating an attempt, 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.'41
137 Thus, Representative Shellabarger said in so many words that the bill had no
impact on 'mere private wrongs.'
138 After the President's veto of the bill, Representative Lawrence, a supporter,

138 After the President's veto of the bill, Representative Lawrence, a supporter,
stated his views. He said:
139 'The bill does not declare who shall 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 inalienable rights pertaining to every citizen, which cannot be abolished or
abridged by State constitutions or laws. * * *
140 'Now, there are two ways in which a State may undertake to deprive citizens of
these * * * rights: either by prohibitory laws, or by a failure to protect any one
of them.
141 '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
inheriting, buying, holding, or selling property, * * * 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 one of these
rights, and should deny them all protection by civil process or penal
enactments, that would be a denial of justice.'42
142 From this passage it would appear that Representative Lawrence conceived of
the word 'right' in 1 of the bill as referring to a right to equal legal status, and
that he believed that the sole effect of the bill was to prohibit state-imposed
discrimination.
143 The Court quotes and cites a number of passages from the House debates in aid
of its construction of the bill. As in the case of the Senate debates, most of these
appear upon close examination to provide little support. The first significant
citation, ante, at 425, n. 33, is a dialogue between Representative Wilson and
Representative Loan, another of the bill's supporters.
The full exchange went as follows:
144 'Mr. LOAN. Mr. Speaker, I * * * ask the chairman * * * why the committee
limit the provisions of the second section to those who act under the color of
law. Why not let them apply to the whole community where the acts are
committed?
145 'Mr. WILSON, of Iowa. 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 the color of these local laws should do
these things shall be liable to this punishment.
146 'Mr. LOAN. What penalty is imposed upon others than officers who inflict
these wrongs on the citizen?
147 'Mr. WILSON, of Iowa. We are not making a general criminal code for the
States.
148 'Mr. LOAN. Why not abrogate those laws instead of inflicting penalties upon
officers who execute writs under them?
149 'Mr. WILSON, of Iowa. A law without a sanction is of very little force.
150 'Mr. LOAN. Then why not put it in the bill directly? 'Mr. WILSON, of Iowa.
That is what we are trying to do.'43
151 The interpretation which the Court places on Representative Wilson's remarks,
see ante, at 425, n. 33, is a conceivable one.44 However, it is equally likely that,
since both participants in the dialogue professed concern solely with 2 of the
bill, their remarks carried no implication about the scope of 1. Moreover, it is
possible to read the entire exchange as concerned with discrimination in
communities having discriminatory laws, with Representative Loan urging that
the laws should be abrogated directly or that all persons, not merely officers,
who discriminated pursuant to them should be criminally punishable.
152 The next significant reliance upon the House debates is the Court's mention of
references in the debates 'to white employers who refused to pay their Negro
workers, white planters who agreed among themselves not to hire freed slaves
without the permission of their former masters, white citizens who assaulted
Negroes or who combined to drive them out of their communities.' Ante, at
427-428.45 (Footnotes omitted.) As was pointed out in the discussion of the
Senate debates, supra at 462, the references to white men's refusals to pay
freedmen and their agreements not to hire freedmen without their 'masters"
consent are by no means contrary to a 'state action' view of the civil rights bill,
since the bill expressly forbade action pursuant to 'custom' and both of these
practices reflected 'customs' from the time of slavery. The Court cites two
different House references to assaults on Negroes by whites. The first was by
Congressman Windom,46 and close examination reveals that his only mention
of assaults was with regard to a Texas 'pass system,' under which freedmen
were whipped if found abroad without passes, and a South Carolina law

permitting freedmen to be whipped for insolence.47 Since these assaults were

sanctioned by law, or at least by 'custom,' they would be reached by the bill
even under a 'state action' interpretation. The other allusion to assaults, as well
as the mention of combinations of whites to drive freedmen from communities,
occurred in a speech by Representative Lawrence.48 These references were
shortly preceded by the remarks of Congressman Lawrence quoted, supra, at
468, and were immediately followed by his comment that 'If States should
undertake to authorize such offenses, or deny to a class of citizens all protection
against them, we may then inquire whether the nation itself may be destroyed *
* *.'49 These fore and aft remarks imply that Congressman Lawrence's concern
was that the activities referred to would receive state sanction.
153 The Court, ante, at 428, n. 40, quotes a statement of Representative Eldridge, an
opponent of the bill, in which he mentioned references by the bill's supporters
to 'individual cases of wrong perpetrated upon the freedmen of the South * *
*.'50 However, up to that time there had been no mention whatever in the House
debates of any purely private discrimination,51 so one can only conclude that by
'individual cases' Representative Eldridge meant isolated cases,' not 'cases of
purely private discrimination.'
154 The last significant reference52 by the Court to the House debates is its
statement, ante, at 434, that 'Representative Cook of Illinois thought that,
without appropriate federal legislation, any 'combination of men in (a)
neighborhood (could) prevent (a Negro) from having any chance' to enjoy' the
benefits of the Thirteenth Amendment. This quotation seems to be taken out of
context. What Representative Cook said was:
155 '(W)hen 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. If a man can be sold, the man is a slave. If he is nominally
freed by the amendment to the Constitution, * * * he has simply the labor of his
hands on which he can depend. Any 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.'53
156 These remarks clearly were addressed to discriminations effectuated by law, or
sanctioned by 'custom.' As such, they would have been reached by the bill even
under a 'state action' interpretation.

D.
157 The foregoing analysis of the language, structure, and legislative history of the
1866 Civil Rights Act shows, I believe, that the Court's thesis that the Act was
meant to extend to purely private action is open to the most serious doubt, if
indeed it does not render that thesis wholly untenable. Another, albeit less
tangible, consideration points in the same direction. Many of the legislators
who took part in the congressional debates inevitably must have shared the
individualistic ethic of their time, which emphasized personal freedom 54 and
embodied a distaste for governmental interference which was soon to culminate
in the era of laissez-faire.55 It seems to me that most of these men would have
regarded it as a great intrusion on individual liberty for the Government to take
from a man the power to refuse for personal reasons to enter into a purely
private transaction involving the disposition of property, albeit those personal
reasons might reflect racial bias. It should be remembered that racial prejudice
was not uncommon in 1866, even outside the South.56 Although Massachusetts
had recently enacted the Nation's first law prohibiting racial discrimination in
public accommodations,57 Negroes could not ride within Philadelphia
streetcars58 or attend public schools with white children in New York City.59
Only five States accorded equal voting rights to Negroes,60 and it appears that
Negroes were allowed to serve on juries only in Massachusetts.61 Residential
segregation was the prevailing pattern almost everywhere in the North.62 There
were no state 'fair housing' laws in 1866, and it appears that none had ever been
proposed.63 In this historical context, I cannot conceive that a bill thought to
prohibit purely private discrimination not only in the sale or rental of housing
but in all property transactions would not have received a great deal of criticism
explicitly directed to this feature. The fact that the 1866 Act received no
criticism of this kind64 is for me strong additional evidence that it was not
regarded as extending so far.
158 In sum, the most which can be said with assurance about the intended impact of
the 1866 Civil Rights Act upon purely private discrimination is that the Act
probably was envisioned by most members of Congress as prohibiting official,
community-sanctioned discrimination in the South, engaged in pursuant to local
'customs' which in the recent time of slavery probably were embodied in laws or
regulations.65 Acts done under the color of such 'customs' were, of course, said
by the Court in the Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, to constitute
'state action' prohibited by the Fourteenth Amendment. See id., at 16, 17, 21, 3
S.Ct. at 24, 25, 28. Adoption of a 'state action' construction of the Civil Rights
Act would therefore have the additional merit of bringing its interpretation into
line with that of the Fourteenth Amendment, which this Court has consistently
held to reach only 'state action.' This seems especially desirable in light of the

wide agreement that a major purpose of the Fourteenth Amendment, at least in

the minds of its congressional proponents, was to assure that the rights
conferred by the then recently enacted Civil Rights Act could not be taken
away by a subsequent Congress.66
II.
159 The foregoing, I think, amply demonstrates that the Court has chosen to resolve
this case by according to a loosely worded statute a meaning which is open to
the strongest challenge in light of the statute's legislative history. In holding that
the Thirteenth Amendment is sufficient constitutional authority for 1982 as
interpreted, the Court also decides a question of great importance. Even
contemporary supporters of the aims of the 1866 Civil Rights Act doubted that
those goals could constitutionally be achieved under the Thirteenth
Amendment,67 and this Court has twice expressed similar doubts. See Hodges
v. United States, 203 U.S. 1, 1618, 27 S.Ct. 6, 89, 51 L.Ed. 65; Corrigan v.
Buckley, 271 U.S. 323, 330, 46 S.Ct. 521. But cf. Civil Rights Cases, 109 U.S.
3, 22, 3 S.Ct. 18. Thus, it is plain that the course of decision followed by the
Court today entails the resolution of important and difficult issues.
160 The only apparent way of deciding this case without reaching those issues
would be to hold that the petitioners are entitled to relief on the alternative
ground advanced by them: that the respondents' conduct amounted to 'state
action' forbidden by the Fourteenth Amendment. However, that route is not
without formidable obstacles of its own, for the opinion of the Court of Appeals
makes it clear that this case differs substantially from any 'state action' case
previously decided by this Court. See 379 F.2d, at 4045.
161 The fact that a case is 'hard' does not, of course, relieve a judge of his duty to
decide it. Since, the Court did vote to hear this case, I normally would consider
myself obligated to decide whether the petitioners are entitled to relief on either
of the grounds on which they rely. After mature reflection, however, I have
concluded that this is one of those rare instances in which an event which
occurs after the hearing of argument so diminishes a case's public significance,
when viewed in light of the difficulty of the questions presented, as to justify
this Court in dismissing the writ as improvidently granted.
162 The occurrence to which I refer is the recent enactment of the Civil Rights Act
of 1968, Pub.L. 90284, 82 Stat. 73. Title VIII of that Act contains
comprehensive 'fair housing' provisions, which by the terms of 803 will
become applicable on January 1, 1969, to persons who, like the petitioners,
attempt to buy houses from developers. Under those provisions, such persons

will be entitled to injunctive relief and damages from developers who refuse to
sell to them on account of race or color, unless the parties are able to resolve
their dispute by other means. Thus, the type of relief which the petitioners seek
will be available within seven months' time under the terms of a presumptively
constitutional Act of Congress.68 In these circumstances, it seems obvious that
the case has lost most of its public importance, and I believe that it would be
much the wiser course for this Court to refrain from deciding it. I think it
particularly unfortunate for the Court to persist in deciding this case on the
basis of a highly questionable interpretation of a sweeping, century-old statute
which, as the Court acknowledges, see ante, at 415, contains none of the
exemptions which the Congress of our own time found it necessary to include
in a statute regulating relationships so personal in nature. In effect, this Court,
by its construction of 1982, has extended the coverage of federal 'fair housing'
laws far beyond that which Congress in its wisdom chose to provide in the Civil
Rights Act of 1968. The political process now having taken hold again in this
very field, I am at a loss to understand why the Court should have deemed it
appropriate or, in the circumstances of this case, necessary to proceed with such
precipitate and insecure strides.
163 I am not dissuaded from my view by the circumstance that the 1968 Act was
enacted after oral argument in this case, at a time when the parties and amici
curiae had invested time and money in anticipation of a decision on the merits,
or by the fact that the 1968 Act apparently will not entitle these petitioners to
the relief which they seek.69 For the certiorari jurisdiction was not conferred
upon this Court 'merely to give the defeated party in the * * * Court of Appeals
another hearing,' Magnum Import Co. v. Coty, 262 U.S. 159, 163, 43 S.Ct. 531,
532, 67 L.Ed. 922, or 'for the benefit of the particular litigants,' Rice v. Sioux
City Memorial Park Cemetery, 349 U.S. 70, 74, 75 S.Ct. 614, but to decide
issues, 'the settlement of which is of importance to the public as distinguished
from * * * the parties,' Layne & Bowler Corp. v. Western Well Works, Inc.,
261 U.S. 387, 393, 43 S.Ct. 422, 423, 67 L.Ed. 712. I deem it far more
important that this Court should avoid, if possible, the decision of constitutional
and unusually difficult statutory questions than that we fulfill the expectations
of every litigant who appears before us.
164 One prior decision of this Court especially suggests dismissal of the writ as the
proper course in these unusual circumstances. In Rice v. Sioux City Memorial
Park Cemetery, supra, the issue was whether a privately owned cemetery might
defend a suit for breach of a contract to bury on the ground that the decedent
was a Winnebago Indian and the contract restricted burial privileges to
Caucasians. In considering a petition for rehearing following an initial
affirmance by an equally divided Court, there came to the Court's attention for

the first time an Iowa statute which prohibited cemeteries from discriminating
on account of race, but which would not have benefited the Rice petitioner
because of an exception for 'pending litigation.' Mr. Justice Frankfurter,
speaking for a majority of the Court, held that the writ should be dismissed. He
pointed out that the case presented 'evident difficulties,' 349 U.S., at 77, 75
S.Ct., at 618, and noted that '(h)ad the statute been properly brought to our
attention * * *, the case would have assumed such an isolated significance that
it would hardly have been brought here in the first instance.' Id., at 7677, 75
S.Ct., at 618. This case certainly presents difficulties as substantial as those in
Rice. Compare what has been said in this opinion with 349 U.S., at 7273, 75
S.Ct., at 615616; see also Bell v. State of Maryland, 378 U.S. 226, 84 S.Ct.
1814, 12 L.Ed.2d 822. And if the petition for a writ of certiorari in this case
had been filed a few months after, rather than a few months before, the passage
of the 1968 Civil Rights Act, I venture to say that the case would have been
deemed to possess such 'isolated significance,' in comparison with its
difficulties, that the petition would not have been granted.
165 For these reasons, I would dismiss the writ of certiorari as improvidently
granted.

To vindicate their rights under 42 U.S.C. 1982, the petitioners invoked the
jurisdiction of the District Court to award 'damages or * * * equitable or other
relief under any Act of Congress providing for the protection of civil rights * *
*.' 28 U.S.C. 1343(4). In such cases, federal jurisdiction does not require that
the amount in controversy exceed $10,000. Cf. Douglas v. City of Jeannette,
319 U.S. 157, 161, 63 S.Ct. 877, 880, 87 L.Ed. 1324; Hague v. Committee for
Industrial Organization, 307 U.S. 496, 507514, 527532, 59 S.Ct. 954, 960
963, 969971, 83 L.Ed. 1423.

255 F.Supp. 115.

379 F.2d 33.

389 U.S. 968, 88 S.Ct. 479, 19 L.Ed.2d 459.

Because we have concluded that the discrimination alleged in the petitioners'

complaint violated a federal statute that Congress had the power to enact under
the Thirteenth Amendment, we find it unnecessary to decide whether that
discrimination also violated the Equal Protection Clause of the Fourteenth
Amendment.

Contrast the Civil Rights Act of 1968, 804(a).

Contrast 804(b).

Contrast 804(c), (d), (e).

Contrast 805.

10

Contrast 806. In noting that 42 U.S.C. 1982 differs from the Civil Rights
Act of 1968 in not dealing explicitly and exhaustively with such matters (see
also nn. 7 and 9, supra), we intimate no view upon the question whether
ancillary services or facilities of this sort might in some situations constitute
'property' as that term is employed in 1982. Nor do we intimate any view
upon the extent to which discrimination in the provision of such services might
be barred by 42 U.S.C. 1981, the text of which appears in n. 78, infra.

11

Contrast the Civil Rights Act of 1968, 808811.

12

Contrast 813(a).

13

The petitioners in this case sought an order requiring the respondents to sell
them a 'Hyde Park' type of home on Lot No. 7147, or on 'some other lot in (the)
subdivision sufficient to accommodate the home selected * * *.' They requested
that the respondents be enjoined from disposing of Lot No. 7147 while
litigation was pending, and they asked for a permanent injunction against future
discrimination by the respondents 'in the sale of homes in the Paddock Woods
subdivision.' The fact that 42 U.S.C. 1982 is couched in declaratory terms and
provides no explicit method of enforcement does not, of course, prevent a
federal court from fashioning an effective equitable remedy. See, e.g., Texas &
N.O.R. Co. v. Brotherhood of Ry., etc., Clerks, 281 U.S. 548, 568 570, 50 S.Ct.
427, 433, 74 L.Ed. 1034; Deckert v. Independence Corp., 311 U.S. 282, 288, 61
S.Ct. 29, 233, 85 L.Ed. 189; United States v. Republic Steel Corp., 362 U.S.
482, 491492, 80 S.Ct. 884, 889890, 4 L.Ed.2d 903; J. I. Case Co. v. Borak,
377 U.S. 426, 432435, 84 S.Ct. 1555, 15591561, 12 L.Ed.2d 423. Cf. Ex
parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714; Griffin v. School
Board, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256.

14

Contrast the Civil Rights Act of 1968, 812(c). The complaint in this case
alleged that the petitioners had 'suffered actual damages in the amount of
$50.00,' but no facts were stated to support or explain that allegation. Upon
receiving the injunctive relief to which they are entitled, see n. 13, supra, the
petitioners will presumably be able to purchase a home from the respondents at
the price prevailing at the time of the wrongful refusal in 1965substantially
less, the petitioners concede, than the current market value of the property in
question. Since it does not appear that the petitioners will then have suffered
any uncompensated injury, we need not decide here whether, in some

circumstances, a party aggrieved by a violation of 1982 might properly assert

an implied right to compensatory damages. Cf. Texas & Pacific R. Co. v.
Rigsby, 241 U.S. 33, 3940, 36 S.Ct. 482, 484, 60 L.Ed. 874; Steele v.
Louisville & N.R. Co., 323 U.S. 192, 207, 65 S.Ct. 226, 234, 89 L.Ed. 173;
Wyandotte Transportation Co. v. United States, 389 U.S. 191, 202, 204, 88
S.Ct. 379, 385387, 19 L.Ed.2d 407. See generally Bell v. Hood, 327 U.S.
678, 684, 66 S.Ct. 773, 777, 90 L.Ed. 939. See also 42 U.S.C. 1988. In no
event, on the facts alleged in the present complaint, would the petitioners be
entitled to punitive damages. See Philadelphia, Wilmington, & Baltimore R.
Co. v. Quigley, 21 How. 202, 213214, 16 L.Ed. 73. Cf. Barry v. Edmunds,
116 U.S. 550, 562565, 6 S.Ct. 501, 507509, 29 L.Ed. 729; Wills v. Trans
World Airlines, Inc., D.C., 200 F.Supp. 360, 367368. We intimate no view,
however, as to what damages might be awarded in a case of this sort arising in
the future under the Civil Rights Act of 1968.
15

See 803(b), 807.

16

Hearings on S. 1358, S. 2114, and S. 2280 before the Subcommittee on

Housing and Urban Affairs of the Senate Committee on Banking an dCurrency,
90th Cong., 1st Sess., 229. These hearings were a frequent point of reference in
the debates preceding passage of the 1968 Civil Rights Act. See, e.g., 114
Cong.Rec. 1387 (Feb. 16, 1968), 1453 (Feb. 20, 1968), 1641 (Feb. 26,
1968), 1788 (Feb. 27, 1968).

17

Hearings, supra, n. 16, at 229.

18

Id., at 230. See also id., at 129, 162163, 251. And see Hearings on S. 1026,
S. 1318, S. 1359, S. 1362, S. 1462, H.R. 2516, and H.R. 10805 before the
Subcommittee on Constitutional Rights of the Senate Committee on the
Judiciary, 90th Cong., 1st Sess., 416.

19

114 Cong.Rec. H 2807 (April 10, 1968). See also id., at H 2808. The Attorney
General of the United States stated during the oral argument in this case that
the Civil Rights Act then pending in Congress 'would provide open housing
rights on a complicated statutory scheme, including administrative, judicial, and
other sanctions for its effectuation * * *.' 'Its potential for effectiveness,' he
added, 'is probably much greater than ( 1982) because of the sanctions and the
remedies that it provides.'

20

At oral argument, the Attorney General expressed the view that, if Congress
should enact the pending bill, 1982 would not be affected in any way but
'would stand independently.' That is, of course, correct. The Civil Rights Act of
1968 does not mention 42 U.S.C. 1982, and we cannot assume that Congress
intended to effect any change, either substantive or procedural, in the prior

statute. See United States v. Borden Co., 308 U.S. 188, 198199, 60 S.Ct.
182, 188, 84 L.Ed. 181. See also 815 of the 1968 Act: 'Nothing in this title
shall be construed to invalidate or limit any law of * * * any * * * jurisdiction in
which this title shall be effective, that grants, guarantees, or protects the * * *
rights * * * granted by this title * * *.'
21

On April 22, 1968, we requested the views of the parties as to what effect, if
any, the enactment of the Civil Rights Act of 1968 had upon this litigation. The
parties and the Attorney General, representing the United States as amicus
curiae, have informed us that the respondents' housing development will not be
covered by the 1968 Act until January 1, 1969; that, even then, the Act will
have no application to cases where, as here, the alleged discrimination occurred
prior to April 11, 1968, the date on which the Act became law; and that, if the
Act were deemed applicable to such cases, the petitioners' claim under it would
nonetheless be barred by the 180-day limitation period of 810(b) and 812(a).
Nor did the passage of the 1968 Act after oral argument in this case furnish a
basis for dismissing the writ of certiorari as improvidently granted. Rice v.
Sioux City Memorial Park Cemetery, 349 U.S. 70, 75 S.Ct. 614, 99 L.Ed. 897,
relied upon in dissent, post, at 479, was quite unlike this case, for the statute
that belatedly came to the Court's attention in Rice reached precisely the same
situations that would have been covered by a decision in this Court sustaining
the petitioner's claim on the merits. The coverage of 1982, however, is
markedly different from that of the Civil Rights Act of 1968.

22

82 U.S.App.D.C. 180, 162 F.2d 233.

23

332 U.S. 789, 68 S.Ct. 100, 92 L.Ed. 371.

24

Compare Harmon v. Tyler, 273 U.S. 668, 47 S.Ct. 471, 71 L.Ed.2d 831,
invalidating a New Orleans ordinance which gave legal force to private
discrimination by forbidding any Negro to establish a home in a white
community, or any white person to establish a home in a Negro community,
"except on the written consent of a majority of the persons of the opposite race
inhabiting such community or portion of the City to be affected." See Shelley v.
Kraemer, 334 U.S. 1, 12, 68 S.Ct. 836, 841, 92 L.Ed. 1161.

25

Two of this Court's early opinions contain dicta to the general effect that 1982
is limited to state action. State of Virginia v. Rives,
100 U.S. 313, 317318, 25 L.Ed. 667; Civil Rights Cases, 109 U.S. 3, 1617,
3 S.Ct. 18, 2425, 27 L.Ed. 835. But all that State of Virginia v. Rives, supra,
actually held was that 641 of the Revised Statutes of 1874 (derived from 3
of the Civil Rights Act of 1866 and currently embodied in 28 U.S.C. 1443(1))

did not authorize the removal of a state prosecution where the defendants,
without pointing to any statute discriminating against Negroes, could only
assert that a denial of their rights might take place and might go uncorrected at
trial. 100 U.S., at 319322. See State of Georgia v. Rachel, 384 U.S. 780, 797
804, 86 S.Ct. 1783, 1792 1796, 16 L.Ed.2d 925. And of course the Civil
Rights Cases, supra, which invalidated 1 and 2 of the Civil Rights Act of
1875, 18 Stat. 335, did not involve the present statute at all.
26

379 F.2d 33, 43.

27

Ibid.

28

Act of April 9, 1866, c. 31, 1, 14 Stat. 27, re-enacted by 18 of the

Enforcement Act of 1870, Act of May 31, 1870, c. 114, 18, 16 Stat. 140, 144,
and codified in 1977 and 1978 of the Revised statutes of 1874, now 42
U.S.C. 1981 and 1982. For the text of 1981, see n. 78, infra.

29

It is, of course, immaterial that 1 ended with the words 'any law, statute,
ordinance, regulation, or custom, to the contrary notwithstanding.' The phrase
was obviously inserted to qualify the reference to 'like punishment, pains, and
penalties, and to none other,' thus emphasizing the supremacy of the 1866
statute over inconsistent state or local laws, if any. It was deleted, presumably
as surplusage, in 1978 of the Revised Statutes of 1874.

30

Several weeks before the House began its debate on the Civil Rights Act of
1866, Congress had passed a bill (S. 60) to enlarge the powers of the
Freedmen's Bureau (created by Act of March 3, 1865, c. 90, 13 Stat. 507) by
extending military jurisdiction over certain areas in the South where, 'in
consequence of any State or local law, * * * custom, or prejudice, any of the
civil rights * * * belonging to white persons (including the right * * * to inherit,
purchase, lease, sell, hold, and convey real and personal property * * are
refused or denied to negroes * * * on account of race, color, or any previous
condition of slavery or involuntary servitude * * *.' See Cong. Globe, 39th
Cong., 1st Sess., 129, 209. (Emphasis added.) Both Houses had passed S. 60
(see id., at 421, 688, 748, 775), and although the Senate had failed to override
the President's veto (see id., at 915916, 943) the bill was nonetheless
significant for its recognition that the 'right to purchase' was a right that could
be 'refused or denied' by 'custom or prejudice' as well as by 'State or local law.'
See also the text accompanying nn. 49 and 59, infra. Of course an 'abrogation
of civil rights made 'in consequence of * * * custom, or prejudice' might as
easily be perpetrated by private individuals or by unofficial community activity
as by state officers armed with statute or ordinance.' J. tenBroek, Equal Under
Law 179 (1965 ed.).

31

When Congressman Bingham of Ohio spoke of the Civil Rights Act, he

charged that it would duplicate the substantive scope of the bill recently vetoed
by the President, see n. 30, supra, and that it would extend the territorial reach
of that bill throughout the United States. Cong. Globe, 39th Cong., 1st Sess.,
1292. Although the Civil Rights Act, as th dissent notes, post, at 457, 462,
made no explicit reference to 'prejudice,' cf. n. 30, supra, the fact remains that
nobody who rose to answer the Congressman disputed his basic premise that
the Civil Rights Act of 1866 would prohibit every form of racial discrimination
encompassed by the earlier bill the President had vetoed. Even Senator
Trumbull of Illinois, author of the vetoed measure as well as of the Civil Rights
Act, had previously remarked that the latter was designed to 'extend to all parts
of the country,' on a permanent basis, the 'equal civil rights' which were to have
been secured in rebel territory by the former, id., at 322, to the end that 'all the
badges of servitude * * * be abolished.' Id., at 323. (Emphasis added.)

32

Section 2 provided:
'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.' (Emphasis added)
For the evolution of this provision into 18 U.S.C. 242, see Screws v. United
States, 325 U.S. 91, 9899, 65 S.Ct. 1031, 1033 1034, 89 L.Ed. 1495; United
States v. Price, 383 U.S. 787, 804, 86 S.Ct. 1152, 1162, 16 L.Ed.2d 267.

33

When Congressman Loan of Missouri asked the Chairman of the House

Judiciary Committee, Mr. Wilson of Iowa, 'why (does) the committee limit the
provisions of the second section to those who act under the color of law,' Cong.
Globe, 39th Cong. 1st Sess., 1120, he was obviously inquiring why the second
section did not also punish those who violated the first without acting 'under
the color of law.' Specifically, he asked:
'Why not let them (the penalties of 2) apply to the whole community where
the acts are committed?' Ibid.
Mr. Wilson's reply was particularly revealing. If, as floor manager of the bill,
he had viewed acts not under color of law as not violative of 1 at all, that

would of course have been the short answer to the Congressman's query.
Instead, mr. Wilson found it necessary to explain that the Judiciary Committee
did not want to make 'a general criminal code for the States.' Ibid. Hence only
those who discriminated 'in reference to civil rights * * * under the color of * *
* local laws' were made subject to the criminal sanctions of 2. Ibid.
Congress might have thought it appropriate to confine criminal punishment to
state officials, oath-bound to support the supreme federal law, while allowing
only civil remediesor perhaps only preventive reliefagainst private
violators. Or Congress might have thought that States which did not authorize
abridgment of the rights declared in 1 would themselves punish all who
interfered with those rights without official authority. See, e.g., Cong. Globe,
39th Cong. 1st Sess., 1758, 1785. Cf. Civil Rights Cases, 109 U.S. 3, 19, 24
25, 3 S.Ct. 18, 27, 3031, 27 L.Ed. 835.
Whatever the reason, it was repeatedly stressed that the only violations 'reached
and punished' by the bill, see Cong. Globe, 39th Cong., 1st Sess., at 1294
(emphasis added), would be those 'done under color of State authority.' Ibid. It
is observed in dissent, post, at 458, that Senator Trumbull told Senator Cowan
that 2 was directed not at 'State officers especially, but (at) everybody who
violates the law.' That remark, however, was nothing more than a reply to
Senator Cowan's charge that 2 was 'exceedingly objectionable' in singling out
state judicial officers for punishment for the first time 'in the history of civilized
legislation.' Id., at 500.
34

See, e.g., Cong. Globe, 39th Cong., 1st Sess., at 39, 474, 516517, 602603,
11231125, 11511153, 1160. For the substance of the codes and their
operation, see H.R.Exec.Dec. No. 118, 39th Cong., 1st Sess.; S.Exec.Dec. No.
6, 39th Cong., 2d Sess.; 1 W. Fleming, Documentary History of Reconstruction
273312 (1906); E. McPherson, The Political History of the United States of
America During the Period of Reconstruction 2944 (1871); 2 S. Morison and
H. Commager, The Growth of the American Republic 1718 (1950 ed.); K.
Stampp, The Era of Reconstruction 7981 (1965).

35

See n. 31, supra. It is true, as the dissent emphasizes, post, at 460, that Senator
Trumbull remarked at one point that the Act 'could have no operation in
Massachusetts, New York, Illinois, or most of the States of the Union,' whose
laws did not themselves discriminate against Negroes. Cong. Globe, 39th
Cong., 1st Sess., 1761. But the Senator was simply observing that the Act
would 'in no manner (interfere) with the * * * regulations of any State which
protects all alike in their rights of person and property.' Ibid. See also id., at
476, 505, 600. That is, the Act would have no effect upon nondiscriminatory
legislation. Senator Trumbull obviously could not have meant that the law

would apply to racial discrimination in some States but not in others, for the bill
on its face applied upon its enactment 'in every State and Territory in the
United States,' and no one disagreed when Congressman Bingham complained
that, unlike Congress' recently vetoed attempt to expand the Freedmen's
Bureau, see n. 30, supra, the Civil Rights Act would operate 'in every State of
the Union.' Id., at 1292. Nor, contrary to a suggestion made in dissent, post, at
p. 460, was the Congressman speaking only of the Act's potential operation in
any State that might enact a racially discriminatory law in the future. The Civil
Rights Act, Congressman Bingham insisted, would 'be enforced in every State
* * * (at) the present * * * time.' Ibid. (Emphasis added.)
36

J. tenBroek, supra, n. 30, at 181. See also W. Brock, An American Crisis 124
(1963); J. McPherson, The Struggle For Equality 332 (1964); K. Stampp, supra,
n. 34, at 75, 131132.

37

Cong. Globe, 39th Cong., 1st Sess., 95, 1833.

38

Id., at 1160.

39

Id., at 339340, 1160, 1835. It is true, as the dissent notes, post, at p. 462, that
some of the references to private assaults occurred during debate on the
Freedmen's Bureau bill, n. 30, supra, but the congressional discussion
proceeded upon the understanding that all discriminatory conduct reached by
the Freedmen's Bureau bill would be reached as well by the Civil Rights Act.
See, e.g., n. 31, supra.

40

Id., at 1835. It is clear that these instances of private mistreatment, see also text
accompanying n. 41, infra, were understood as illustrative of the evils that the
Civil Rights Act of 1866 would correct. Congressman Eldridge of Wisconsin,
for example, said this:
'Gentlemen refer us to individual cases of wrong perpetrated upon the freedmen
of the South as an argument why we should extend the Federal authority into
the different States to control the action of the citizens thereof. But, I ask, has
not the South submitted to the altered state of things there, to the late
amendment of the Constitution, to the loss of their slave property, with a
cheerfulness and grace that we did not expect? * * * I deprecate all these
measures because of the implication they carry upon their face that the people
who have heretofore owned slaves intend to do them wrong. I do not believe it.
* * * The cases of ill-treatment are exceptional cases.' Id., at 1156.
So it was that 'opponents denied or minimized the facts asserted' but 'did not
contend that the (Civil Rights Act) would not reach such facts if they did exist.'
J. tenBroek, supra, n. 30, at 181.

41

Report of C. Schurz, C. Schurz, S.Exec.Doc. No. 2, 39th Cong. 1st Sess., 2, 17

25. See W. Brock, supra, n. 36, at 4042; K. Stampp, supra, n. 34, at 73
75.

42

Report of C. Schurz, supra, at 2324.

43

Id., at 25.

44

Id., at 18.

45

Id., at 35.

46

J. tenBroek, supra, n. 30, at 177. One of the proposals, sponsored by Senator

Wilson of Massachusetts, would have declared void all 'laws, statutes, acts,
ordinances, rules, and regulations' establishing or maintaining in former rebel
States 'any inequality of civil rights and immunities' on account of 'color, race,
or * * * a previous condition * * * of slavery.' Cong. Globe, 39th Cong., 1st
Sess., 39. The other two proposals, sponsored by Senator Sumner of
Massachusetts, would have struck down in the former Confederate State 'all
laws * * * destablishing any oligarchical privileges and any disinction of rights
on account of color or race' and would have required that all persons there be
'recognized as equal before the law.' Id., at 91.

47

See n. 46, supra.

48

Cong. Globe, 39th Cong., 1st Sess., 43. (Emphasis added.) The dissent seeks to
neutralize the impact of this quotation by noting that, prior to making the above
statement the Senator had argued that the second clause of the Thirteenth
Amendment was inserted 'for the purpose, and none other, of preventing State
Legislatures from enslaving, under any pretense, those whom the first clause
declared should be free.' See post, at 455, 462463. In fact, Senator Trumbull
was simply replying at that point to the contention of Senator Saulsbury of
Delaware that the second clause of the Thirteenth Amendment was never
intended to authorize federal legislation interfering with subjects other than
slavery itself. See id., at 42. Senator Trumbull responded that the clause was
intended to authorize precisely such legislation. That, 'and none other,' he said
for emphasis, was its avowed purpose. But Senator Trumbull did not imply that
the force of 2 of the Thirteenth Amendment would be spent once Congress
had nullified discriminatory state laws. On the contrary, he emphasized the fact
that it was 'for Congress to determine, and nobody else,' what sort of legislation
might be 'appropriate' to make the Thirteenth Amendment effective. Id., at 43.
Cf. Part V of this opinion, infra.

49

Id., at 77. (Emphasis added.)

50

Id., at 129.

51

Id., at 474.

52

Ibid. See the dissenting opinion, post, at p. 458.

53

Id., at 475.

54

Id., at 599. (Emphasis added.) Senator Trumbull later observed that his bill
would add nothing to federal authority if the States would fully 'perform their
constitutional obligations.' Id., at 600. See also Senator Trumbull's remarks, id.,
at 1758; the remarks of Senator Lane of Indiana, id., at 602603; and the
remarks of Congressman Wilson of Iowa, id., at 11171118. But it would be a
serious mistake to infer from such statements any notion (see the dissenting
opinion, post, at p. 460) that, so long as the States refrained from actively
discriminating against Negroes, their 'obligations' in this area, as Senator
Trumbull and others understood them, would have been fulfilled. For the
Senator's concern, it will be recalled (see text accompanying n. 49, supra), was
that Negroes might be 'oppressed and in fact deprived of their freedom' not only
by hostile laws but also by 'prevailing public sentiment,' and he viewed his bill
as necessary 'unless by local legislation they (the States) provide for the real
freedom of their former slaves.' Id., at 77. See also id., at 43. And see the
remarks of Congressman Lawrence of Ohio:
'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.' Id., at 1833.

55

See, e.g., the remarks of Senator Howard of Michigan. Id., at 504.

56

See, e.g., the remarks of Senator Cowan of Pennsylvania, id., at 500, and the
remarks of Senator Hendricks of Indiana. Id., at 601.

57

Senator Saulsbury of Delaware. Id., at 478.

58

Senator Van Winkle of West Virginia. Id., at 498.

59

Senator Lane of Indiana. Id., at 603.

60

Id., at 606607.

61

See, e.g., id., at 11181119, 11231125, 11511153, 1160. See generally

the discussion in the dissenting opinion, post, at 464467.

62

Id., at 1151. (Emphasis added.)

63

Id., at 1124.

64

Ibid. (Emphasis added.) The clear import of these remarks is in no way

diminished by the heated debate, see id., at 1290 1294, portions of which are
quoted in the dissenting opinion, post, at 467468, between Representative
Bingham, opposing the bill, and Representative Shellabarger, supporting it,
over the question of what kinds of state laws might be invalidated by 1, a
question not involved in this case.

65

Id., at 1367. On March 15, the Senate concurred in the several technical
amendments that had been made by the House. Id., at 14131416.

66

Id., at 16791681.

67

Senator Cowan of Pennsylvania. Id., at 1781.

68

Senator Davis of Kentucky. Id., Appendix, at 183. Such expansive views of the
Act's reach found frequent and unchallenged expression in the Nation's press.
See, e.g., Daily National Intelligencer (Washington, D.C.), March 24, 1866, p.
2, col. 1; New York Herald, March 29, 1866, p. 4, col. 3; Cincinnati
Commercial, March 30, 1866, p. 4, col. 2; Evening Post (New York), April 7,
1866, p. 2, col. 1; Indianapolis Daily Herald, April 17, 1866, p. 2, col. 1.

69

Cong. Globe, 39th Cong., 1st Sess., 1809, 1861.

70

'Never before had Congress over-ridden a President on a major political issue,

and there was special gratification in feeling that this had not been done to carry
some matter of material interest, such as a tariff, but in the cause of
disinterested justice.' W. Brock, supra, n. 36, at 115.

71

Section 18 of the Enforcement Act of 1870, Act of May 31, 1870 c. 114, 18,
16 Stat. 144:
'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 * * *.'

72

See United States v. Mosley, 238 U.S. 383, 387388, 35 S.Ct. 904, 905906,
59 L.Ed. 1355; United States v. Price, 383 U.S. 787, 804805, 86 S.Ct. 1152,
1162, 16 L.Ed.2d 267, 2 W. Flemming, Documentary History of
Reconstruction 285288 (1907); K. Stampp, supra, n. 34, at 145, 171, 185,
198204; G. Stephenson, Race Distinctions in American Law 116 (1910).

73

The Court of Appeals in this case seems to have derived such an assumption

from language in State of Virginia v. Rives, 100 U.S. 313, 317318, 25 L.Ed.
667, and Hurd v. Hodge, 334 U.S. 24, 31, 68 S.Ct. 847, 851. See 379 F.2d 33,
3940, 43. Both of those opinions simply asserted that, at least after its reenactment in 1870, the Civil Rights Act of 1866 was directed only at
governmental action. Neither opinion explained why that was thought to be so,
and in each case the statement was merely dictum. See n. 25, supra.
74

So it was, for example, that this Court unanimously upheld the power of
Congress under the Thirteenth Amendment to make it a crime for one
individual to compel another to work in order to discharge a debt. Clyatt v.
United States, 197 U.S. 207, 25 S.Ct. 429, 49 L.Ed. 726.

75

See, e.g., Cong. Globe, 39th Cong., 1st Sess., 113, 318, 476, 499, 507, 576, 600
601.

76

See, e.g., Cong. Globe, 38th Cong., 1st Sess., 1366, 2616, 2940-2941, 2962,
2986; Cong., Globe, 38th Cong., 2d Sess., 178180, 180, 182, 192, 195, 239,
241242, 480481, 529.

77

Cong. Globe, 39th Cong., 1st Sess., 322. See also the remarks of Senator
Howard of Michigan. Id., at 503.

78

The Court did conclude in the Civil Rights Cases that 'the act of * * * the owner
of the inn, the public conveyance or place of amusement, refusing * * *
accommodation' cannot be 'justly regarded as imposing any badge of slavery or
servitude upon the applicant.' 109 U.S., at 24, 3 S.Ct., at 31. 'It would be
running the slavery argument into the ground,' the Court thought, 'to make it
apply to every act of discrimination which a person may see fit to make as to
the guests he will entertain, or as to the people he will take into his coach or cab
or car, or admit to his concert or theatre, or deal with in other matters of
intercourse or business.' Id., at 2425, 3 S.Ct., at 31. Mr. Justice Harlan,
dissented, expressing the view that 'such discrimination practised by
corporations and individuals in the exercise of their public or quasi-public
functions is a badge of servitude the imposition of which congress may prevent
under its power, by appropriate legislation, to enforce the thirteenth
amendment.' Id., at 43, 3 S.Ct., at 44.
Whatever the present validity of the position taken by the majority on that issue
a question rendered largely academic by Title II of the Civil Rights Act of
1964, 78 Stat. 243 (see Heart of Atlanta Motel v. United States, 379 U.S. 241,
85 S.Ct. 348, 13 L.Ed.2d 258; Katzenbach v. McClung, 379 U.S. 294, 85 S.Ct.
377, 13 L.Ed.2d 290)we note that the entire Court agreed upon at least one
proposition: The Thirteenth Amendment authorizes Congress not only to
outlaw all forms of slavery and involuntary servitude but also to eradicate the

last vestiges and incidents of a society half slave and half free, by securing to
all citizens, of every race and color, 'the same right to make and enforce
contracts, to sue, be parties, give evidence, and to inherit, purchase, lease, sell
and convey property, as is enjoyed by white citizens.' 109 U.S., at 22, 3 S.Ct.,
at 39. Cf. id., at 35, 3 S.Ct. at 39 (dissenting opinion).
In Hodges v. United States, 203 U.S. 1, 27 S.Ct. 6, 51 L.Ed. 65, a group of
white men had terrorized several Negroes to prevent them from working in a
sawmill. The terrorizers were convicted under 18 U.S.C. 241 (then Revised
Statutes 5508) of conspiring to prevent the Negroes from exercising the right
to contract for employment, a right secured by 42 U.S.C. 1981 (then Revised
Statutes 1977, derived from 1 of the Civil Rights Act of 1866, see n. 28,
supra). Section 1981 provides, in terms that closely parallel those of 1982
(then Revised Statutes 1978), that all persons in the United States 'shall have
the same right * * * 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 persons and property as is enjoyed by white citizens * * *.'
(Emphasis added.)
This Court reversed the conviction. The majority recognized that 'one of the
disabilities of slavery, one of the indicia of its existence, was a lack of power to
make or perform contracts.' 203 U.S., at 17, 27 S.Ct. at 9. And there was no
doubt that the defendants had deprived their Negro victims, on racial grounds,
of the opportunity to dispose of their labor by contract. Yet the majority said
that 'no mere personal assault or trespass or appropriation operates to reduce the
individual to a condition of slavery,' id., at 18, 27 S.Ct., at 9, and asserted that
only conduct which actually enslaves someone can be subjected to punishment
under legislation enacted to enforce the Thirteenth Amendment. Contra, United
States v. Cruikshank, 25 Fed.Cas. No. 14,897, pp. 707, 712 (dictum of Mr.
Justice Bradley, on circuit), aff'd, 92 U.S. 542, 23 L.Ed. 588; United States v.
Morris, D.C., 125 F. 322, 324, 330331. Mr. Justice Harlan, joined by Mr.
Justice Day, dissented. In their view, the interpretation the majority placed
upon the Thirteenth Amendment was 'entirely too narrow and * * * hostile to
the freedom established by the Supreme Law of the land.' 203 U.S. at 37, 27
S.Ct., at 17. That interpretation went far, they thought, 'towards neutralizing
many declarations made as to the object of the recent Amendments of the
Constitution, a common purpose of which, this court has said, was to secure to
a people theretofore in servitude, the free enjoyment, without discrimination
merely on account of their race, of the essential rights that appertain to
American citizenship and to freedom.' Ibid.
The conclusion of the majority in Hodges rested upon a concept of

congressional power under the Thirteenth Amendment irrecon

cilable with the position taken by every member of this Court in the Civil
Rights Cases and incompatible with the history and purpose of the Amendment
itself. Insofar as Hodges is inconsistent with our holding today, it is hereby
overruled.
79

See text accompanying n. 48, supra.

80

Ibid.

81

See text accompanying n. 62, supra.

82

Cong.Globe, 39th Cong., 1st Sess., 1118.

83

Ibid.

The cases are collected in five volumes in H. Catterall, Judicial Cases

Concerning American Slavery and the Negro (1926 1937). And see 1 T. Cobb,
An Inquiry into the Law of Negro Slavery, c. XIV (1858); G. Ostrander, The
Rights of Man in America 16061861, p. 252 (1960); G. Stroud, Sketch of the
Laws Relating to Slavery 4550 (1827); J. Wheeler, Law of Slavery 190191
(1837).

Except from Frederick Douglass, The Color Line, The North American Review,
June 1881, 4 The Life and Writings of Frederick Douglass 343344 (1955).

See Kamper v. Department of State of New York, 22 N.Y.2d 690, 291

N.Y.S.2d 804, 238 N.E.2d 914.

See, e.g., O'Hanlon, The Case Against the Unions, Fortune, Jan. 1968, at 170.

The contrivances which some States have concocted to thwart the command of
our decision in Brown v. Board of Education are by now legendary. See, e.g.,
Monroe v. Board of Commissioners, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d
733 (Tennessee 'free-transfer' plan); Green v. County School Board, 391 U.S.
430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (Virginia school board 'freedom-of-choice'
plan); Raney v. Board of Education, 391 U.S. 443, 88 S.Ct. 1967, 20 L.Ed. 727
(Arkansas 'freedom-of-choice' plan); Bradley v. School Board, 382 U.S. 103,
86 S.Ct. 224, 15 L.Ed.2d 187 (allocation of faculty allegedly on a racial basis);
Griffin v. County School Board, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256
(closing of public schools in Price Edward County, Virginia, with tuition grants
and tax concessions used to assist white children attending private segregated
schools); Goss v. Board of Education, 373 U.S. 683, 83 S.Ct. 1405, 10 L.Ed.2d

632 (Tennessee rezoning of school districts, with a transfer plan permitting

transfer by students on the basis of race); United States v. Jefferson County
Board of Education, 372 F.2d 836, aff'd en banc, 380 F.2d 385 (C.A.5th Cir.
1967) ('freedom-of-choice' plans in States within the jurisdiction of the United
States Court of Appeals for the Fifth Circuit); Northcross v. Board of
Education, 302 F.2d 818 (C.A.6th Cir. 1962) (Tennessee pupil-assignment
law); Orleans Parish School Board v. Bush, 242 F.2d 156 (C.A.5th Cir. 1957)
(Louisiana pupil-assignment law); Hall v. St. Helena Parish School Board, 197
F.Supp. 649 (D.C.E.D.La.1961), aff'd, 368 U.S. 515, 82 S.Ct. 529, 7 L.Ed.2d
521 (Louisiana law permitting closing of public schools, with extensive state
aid going to private segregated schools); Holmes v. Danner, 191 F.Supp. 394
(D.C.M.D.Ga.1961) (Georgia statute cutting off state funds of Negroes
admitted to state university); Aaron v. McKinley, 173 F.Supp. 944
(D.C.E.D.Ark.1959), aff'd sub nom. Faubus v. Aaron, 361 U.S. 197, 80 S.Ct.
291, 4 L.Ed.2d 237 (Arkansas statute cutting off state funds to integrated
school districts); James v. Almond, 170 F.Supp. 331 (D.C.E.D.Va.1959),
(closing of all integrated public schools). See also Rogers v. Paul, 382 U.S. 198,
86 S.Ct. 358, 15 L.Ed.2d 265; Calhoun v. Latimer, 377 U.S. 263, 84 S.Ct.
1235, 12 L.Ed.2d 288; Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d
5.
6

My Brother HARLAN'S listing of some of the 'customs' prevailing in the North

at the time 1982 was first enacted shows the extent of organized white
discrimination against newly freed blacks. As he states, '(r)esidential
segregation was the prevailing pattern almost everywhere in the North.' Post, at
474-475. Certainly, then, it was 'customary.' To suggest, however, that there
might be room for argument in this case (post, at 475, n. 65) that the
discrimination against petitioners was not in some measure a part and product
of this longstanding and widespread customary pattern is to pervert the problem
by allowing the legal mind to draw lines and make distinctions that have no
place in the jurisprudence of a nation striving to rejoin the human race.

This 'state action' argument emphasizes the respondents' role as housing

developers exercising continuing authority over a suburban housing complex
with about 1,000 inhabitants.

The Civil Rights Act of 1968, Pub.L. 90284, 82 Stat. 73.

Id., 801819.

See ante, at 417, n. 21.

See also Virginia v. Rives, 100 U.S. 313, 317318, 25 L.Ed. 667.

Section 1978 of the Revised Statutes.

See also Buchanan v. Warley, 245 U.S. 60, 7879, 38 S.Ct. 16, 19, 62 L.Ed.2d
149.

It seems to me that this passage is not dictum, as the Court terms it, ante, at
419, and n. 25, but a holding. For if the Court had held the covenants in
question invalid as between the parties, then it would not have had to rely upon
a finding of 'state action.'

Despite the Court's view that this reading flies in the face of the 'plain and
unambiguous terms' of the statute, see ante, at 420, it is not without precedent.
In the Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, the Court said of identical
language in the predecessor statute to 1982:
'(C)ivil rights, such as are guaranteed by the constitution against state
aggression, cannot be impaired by the wrongful acts of individuals,
unsupported by state authority * * *. The wrongful act of an individual,
unsupported by any such authority, is simply a private wrong, or a crime of that
individual; an invasion of the rights of the injured party, it is true * * *; but if
not sanctioned insome way by the state, or not done under State authority, his
rights remain in full force, and may presumably be vindicated by resort to the
laws of the State for redress. An individual cannot deprive a man of his right *
* * to hold property, to buy and sell * * *; he may, by force or fraud, interfere
with the enjoyment of the right in a particular case; * * * but, unless protected
in these wrongful acts by some shield of state law or state authority, he cannot
destroy or injure the right * * *.' 109 U.S., at 17, 3 S.Ct., at 25.

10

The Court does not claim that the deletion from 1 of the statute, in 1874, of
the words 'any law, statute, ordinance, regulation, or custom, to the contrary
notwithstanding' was intended to have any substantive effect. See ante, at 422,
n. 29.

11

See Cong.Globe, 39th Cong., 1st Sess., 3942.

12

Id., at 43.

13

See ibid.

14

See Cong.Globe, 39th Cong., 1st Sess., 129.

15

Freedmen's bill, 7. The text of the bill may be found in E. McPherson, The
Political History of the United States of America During the Period of
Reconstruction 72 (1871). The Freedmen's bill was passed by both the Senate

and the House, but the Senate failed to override the President's veto. See
Cong.Globe, 39th Cong., 1st Sess., 421, 688, 742, 748, 775, 915 916, 943.
16

17
18
19

Section 7 of the Freedmen's bill would have permitted the President to extend
'military protection and jurisdiction' over all cases in which the specified rights
were denied, while 3 of the Civil Rights Act merely gave the federal courts
concurrent jurisdiction over such actions. Section 8 of the Freedmen's bill
would have allowed agents of the Freedmen's Bureau to try and convict those
who violated the bill's criminal provisions, while 3 of the Civil Rights Act
only gave the federal courts exclusive jurisdiction over such actions.
Cong.Globe, 39th Cong., 1st Sess., 474. (Emphasis added.)
Id., at 475. (Emphasis added.)
Id., at 500. (Emphasis added.) The Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18,
suggest how Senator Trumbull might have expected 2 to affect persons other
than 'officers' in spite of its 'under color' language, for it was there said in
dictum that:
'The civil rights bill * * * is analogous * * * to (a law) under the original
Constitution, declaring that the validity of contracts should not be impaired, and
that if any person bound by a contract should refuse to comply with it, under
color or pretence that it had been rendered void or invalid by a state law, he
should be liable to an action upon it in the courts of the United States, with the
addition of a penalty for setting up such an unjust and unconstitutional defence.'
109 U.S., at 17, 3 S.Ct., at 25. (Emphasis added.)

20

Cong.Globe, 39th Cong., 1st Sess., 476. (Emphasis added.)

21

Id., at 600. (Emphasis added.)

22

Id., at 1758.

23

Id., at 1761. (Emphasis added.)

24

Moreover, a few Northern States apparently did have laws which denied to
Negroes rights enumerated in the Act. See G. Stephenson, Race Distinctions in
American Law 3639 (1910); L.Litwack, North of Slavery: The Negro in the
Free States, 1790 1860, at 9394 (1961).

25

Cong.Globe, 39th Cong., 1st Sess., 1759.

26

Id., at 1760. (Emphasis added.)

27

See Cong.Globe, 39th Cong., 1st Sess., 339340.

28

The Court also gives prominence, see ante, at 428-429, to a report by General
Carl Schurz which described private as well as official discrimination against
freedmen 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.

29

See infra, at 473475.

30

Cong.Globe, 39th Cong., 1st Sess., 603.

31

Ibid.

32

See Cong.Globe, 39th Cong., 1st Sess., 1781.

33

Cong.Globe, 39th Cong., 1st Sess., Appendix, 183.

34

Ibid.

35

Cong.Globe, 39th Cong., 1st Sess., 1118. (Emphasis added.)

36

Id., at 1119. (Emphasis added.)

37

Id., at 1151. (Emphasis added.)

38

Id., at 1152. (Emphasis added.)

39

Id., at 1153. (Emphasis added.)

40

Id., at 1291. (Emphasis added.)

41

Id., at 12931294. It is quite clear that Representative Shellabarger was

speaking of the bill's first section, for he did not mention the second section
until later in his speech, and then only briefly and in terms which indicated that
he thought it co-extensive with the first ('I cannot remark on the second section
further than to say that it is the ordinary case of providing punishment for
violating a law of Congress.'). See id., at 1294.

42

Cong.Globe, 39th Cong., 1st Sess., 18321833. (Emphasis added.)

43

Id., at 1120.

44

It is worthy of note, however, that if Representative Wilson believed that 2 of

the bill would apply only to state officers, and not to other members of the
community, he apparently differed from the bill's author. See the remarks of
Senator Trumbull quoted, supra, at 458.
45

The Court's reliance, see ante, at 425, n. 33, on the statement of Representative
Shellabarger that 'the violations of citizens' rights, which are reached and
punished by this bill, are those which are * * * done under color of state
authority * * *,' Cong.Globe, 39th Cong., 1st Sess., 1294, seems very
misplaced when the statement is taken in context. A fuller version of
Representative Shellabarger's remarks will be found, supra, at 467 468.

46

See Cong.Globe, 39th Cong., 1st Sess., 1160.

47

See ibid.

48

See Cong.Globe, 39th Cong., 1st Sess., 1835.

49

Ibid. (Emphasis added.)

50

Cong.Globe, 39th Cong., 1st Sess., 1156.

51

See id., at 11151124, 11511155.

52

The emphasis given by the Court to the statement of Representative Thayer

which is quoted, ante, at 433-434, surely evaporates when the statement is
viewed in conjunction with Representative Thayer's immediately following
remarks, quoted, supra, at 466467.

53

Id., at 1124. (Emphasis added.) Earlier in the same speech, Representative

Cook had described actual vagrancy laws which had recently been passed by
reconstructed Southern legislatures. See id., at 11231124.

54

An eminent American historian has said that the events of the last third of the
19th century took place 'in a framework of pioneer individualistic mores * * *.'
S. Morison, The Oxford History of the American People 788 (1965). See also 3
V. Parrington, Main Currents in American Thought 722 (1930).

55

It has been suggested that the effort of the congressional radicals to enact a
program of land reform in favor of the freedmen during Reconstruction failed
in part because it smacked too much of 'paternalism' and interference with
property rights. See K. Stampp, The Era of Reconstruction 126131 (1965).

56

See generally M. Konvitz & T. Leskes, A Century of Civil Rights (1961); L.

Litwack, North of Slavery: The Negro in the Free States, 17901860 (1961);

K. Stampp, supra, at 1217; G. Stephenson, Race Distinctions in American

Law (1910); Maslow & Robison, Civil Rights Legislation and the Fight for
Equality, 1862 1952, 20 U.Chi.L.Rev. 363 (1953).
57

See M. Kronvitz & T. Leskes, supra, at 155156; 18641865 Mass.Acts and

Resolves 650.

58

Negroes were permitted to ride only on the front platforms of the cars. See L.
Litwack, supra, at 112.

59

Negro students in New York City were compelled to attend separate schools,
called African schools, under authority of an 1864 New York State statute
which empowered school officials to establish separate, equal schools for
Negro children. See L. Litwack, supra, at 121, 133134, 136, 151; G.
Stephenson, supra, at 185; 1864 N.Y.Laws 1281. In 1883, the New York Court
of Appeals held that students in Brooklyn might constitutionally be segregated
pursuant to the statute. See People ex rel. King v. Gallagher, 93 N.Y. 438. In
1900, the statute was finally repealed and segregation legally forbidden. See
1900 N.Y.Laws, Vol. II, at 1173.

60

See L. Litwack, supra, at 9192. The States were Massachusetts, Rhode

Island, Maine, New Hampshire, and Vermont. See id., at 91.

61

See L. Litwack, supra, at 94.

62

See id., at 168170.

63

It has been noted that:

'Residential housing, despite its importance * * *, appears to be the last of the
major areas of discrimination that the states have been willing to attack.' M.
Konvitz & T. Leskes, supra, at 236.
And as recently as 1953, it could be said:
'Bills have been introduced in state legislatures to forbid racial or religious
discrimination in 'multiple dwellings' (those housing three or more families), *
* * but these proposals have not been considered seriously by any legislative
body.' Maslow & Robison, supra, at 408. (Footnotes omitted.)

64

In contrast, the bill was repeatedly and vehemently attacked, in the face of
emphatic denials by its sponsors, on the ground that it allegedly would
invalidate two types of state laws: those denying Negroes equal voting rights
and those prohibiting intermarriage. See e.g., Cong.Globe, 39th Cong., 1st

Sess., 598, 600, 604, 606, 1121, 1157, 1263.

65

The petitioners do not argue, and the Court does not suggest that the
discrimination complained of in this case was the product of such a 'custom.'

66

See, e.g., H. Flack, The Adoption of the Fourteenth Amendment 94 (1908); J.

James, The Framing of the Fourteenth Amendment 126128, 179 (1956); 2 S.
Morison & H. Commager, The Growth of the American Republic 39 (4th ed.
1950); K. Stampp, supra, at 136; J. tenBroek, Equal Under Law 224 (1965); L.
Warsoff, Equality and the Law 126 (1938).

67

See, e.g., Cong.Globe, 39th Cong., 1st Sess., 504505 (Senator Johnson); id.,
at 12911293 (Representative Bingham).

68

Of course, the question of the constitutionality of the 'fair housing' provisions

of the 1968 Civil Rights Act is not before us, and I intend no implication about
how I would decide that issue.

69

See, ante, at 417, n. 21.