U.S. Supreme Court Jones v. Alfred H. Mayer Co., 392
U.S. 409 (1968) Jones v. Alfred H. Mayer
Co. No. 645 Argued April 1-2,
1968 Decided June 17, 1968 392
U.S. 409 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE EIGHTH
CIRCUIT Syllabus Petitioners, alleging that respondents had refused to sell them
a home for the sole reason that petitioner Joseph Lee Jones is a
Negro, filed a complaint in the District Court, seeking injunctive
and other relief. Petitioners relied in part upon 42 U.S.C. § 1982,
which provides that all citizens

															"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."

															The District Court dismissed the complaint, and the Court of
Appeals affirmed, concluding that § 1982 applies only to state
action, and does not reach private refusals to sell. Held: 1. Congress' enactment of the Civil Rights Act of 1968,
containing in Title VIII detailed housing provisions applicable to
a broad range of discriminatory practices and enforceable by a
complete arsenal of federal authority, had no effect upon this
litigation or upon § 1982, a general statute limited to racial
discrimination in the sale and rental of property and enforceable
only by private parties acting on their own initiative. Pp. 392 U. S.
413 -417.

															2. Section 1982 applies to all racial discrimination in the sale
or rental of property. Pp. 392 U. S. 417 -437.

															(a) Section 1982 has previously been construed to do more than
grant Negro citizens the general legal capacity to buy and rent
property free of prohibitions that wholly disable them because of
their race. Hurd v. Hodge, 334 U. S.
24 . Pp. 392 U. S.
417 -419.

															(b) The question whether purely private discrimination, unaided
by any governmental action, violates § 1982 remains one of first
impression in this Court. Hurd v. Hodge, supra; Corrigan v.
Buckley, 271 U. S. 323 ; the Civil Rights Cases, 109 U. S. 3 , and Virginia v. Rives, 100 U. S. 313 ,
distinguished. Pp. 392 U. S.
419 -420.

															(c) On its face, the language of § 1982 appears to prohibit all
discrimination against Negroes in the sale or rental of property.
Pp. 392 U. S.
420 -422.

															(d) The legislative history of § 1982, which was part of § 1 of
the Civil Rights Act of 1866, likewise shows that both Houses of
Congress believed that they were enacting a comprehensive
statute Page 392 U. S. 410 forbidding every form of racial discrimination affecting the
basic civil rights enumerated therein -- including the right to
purchase or lease property -- and thereby securing all such rights
against interference from any source whatever, whether governmental
or private. Pp. 392 U. S.
422 -436.

															(e) The scope of the 1866 Act was not altered when it was
reenacted in 1870, two years after ratification of the Fourteenth
Amendment. Pp. 392 U. S.
436 -437.

															(f) That § 1982 lay partially dormant for many years does not
diminish its force today. P. 392 U. S.
437 .

															3. Congress has power under the Thirteenth Amendment to do what
42 U.S.C. § 1982 purports to do. Pp. 392 U. S.
437 -444.

															(a) Because 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 , 109 U. S. 20 , it
has never been doubted "that the power vested in Congress to
enforce the article by appropriate legislation," ibid., includes the power to enact laws "operating upon the acts of
individuals, whether sanctioned by State legislation or not." Id. at 109 U. S. 23 . See Clyatt v. United States, 197 U.
S. 207 . P. 392 U. S.
438 .

															(b) The Thirteenth Amendment authorized Congress to do more than
merely dissolve the legal bond by which the Negro slave was held to
his master; it gave Congress the power rationally to determine what
are the badges and the incidents of slavery and the authority to
translate that determination into effective legislation. Pp. 392 U. S.
439 -440.

															(c) Whatever else they may have encompassed, the badges and
incidents of slavery that the Thirteenth Amendment empowered
Congress to eliminate included restraints 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 , 109 U. S. 22 .
Insofar as Hodges v. United States, 203 U. S.
1 , suggests a contrary holding, it is overruled. Pp. 392 U. S.
441 -443.

															379 F.2d 33, reversed. Page 392 U. S. 412 MR JUSTICE STEWART delivered the opinion of the Court.

															In this case, we are called upon to determine the scope and the
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. [ Footnote 1 ] The District Court
sustained the respondents' motion to dismiss the complaint,
[ Footnote 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. [ Footnote 3 ] We
granted certiorari to consider the Page 392 U. S. 413 questions thus presented. [ Footnote 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. [ Footnote 5 ] I 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. 9284, 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. [ Footnote 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.
[ Footnote 7 ] It does not
prohibit advertising or other representations that indicate
discriminatory preferences. [ Footnote 8 ] It does not refer explicitly to discrimination
in financing arrangements, [ Footnote 9 ] or in the provision of brokerage services.
[ Footnote 10 ] It does not
empower Page 392 U. S. 414 a federal administrative agency to assist aggrieved parties.
[ Footnote 11 ] It makes no
provision for intervention by the Attorney General. [ Footnote 12 ] And, although it can be
enforced by injunction, [ Footnote 13 ] it contains no provision expressly
authorizing a federal court to order the payment of damages.
[ Footnote 14 ] Page 392 U. S. 415 Thus, although § 1982 contains none of the exemptions that
Congress included in the Civil Rights Act of 1968, [ Footnote 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." [ Footnote
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." [ Footnote 17 ] The point was made that, in light of the
many difficulties Page 392 U. S. 416 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. [ Footnote 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:

															"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.
[ Footnote 19 ]"

															Later the same day, the House passed the Civil Rights Act of
1968. Its enactment had no effect upon § 1982 [ Footnote 20 ] Page 392 U. S. 417 and no effect upon this litigation, [ Footnote 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 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 . 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 Page 392 U. S. 418 Court of Appeals for the District of Columbia Circuit affirmed,
[ Footnote 22 ] and this Court
granted certiorari [ Footnote
23 ] to decide whether § 1982, then § 1978 of the Revised
Statutes of 1874, barred enforcement of the racially restrictive
agreements in that case.

															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 334 U. S. 34 .
That result, this Court concluded, was prohibited by Page 392 U. S.
419 § 1982. To suggest otherwise, the Court said, "is to reject
the plain meaning of language." Ibid. 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 334 U. S. 34 ,
has suffered the kind of injury that § 1982 was designed to
prevent. Accord, Buchanan v. Warley, 245 U. S.
60 , 245 U. S. 79 ; Harmon v. Tyler, 273 U.S. 668; Richmond v. Deans, 281 U. S. 704 . The
basic source of the injury in Hurd was, of course, the
action of private individuals -- white citizens who had agreed to
exclude Negroes from a residential area. But an arm of the
Government -- in that case, a federal court -- had assisted in the
enforcement of that agreement. [ Footnote 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.

															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, 125 F. 322. It is true that a dictum in Hurd said that § 1982 was directed only toward "governmental action,"
334 U.S. at 334 U. S. 31 ,
but neither Hurd nor any other case Page 392 U. S. 420 before or since has presented that precise issue for
adjudication in this Court. [ Footnote 25 ] Today we face that issue for the first
time. III 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 Page 392 U. S. 421 by "those who place property on the market" [ Footnote 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." [ Footnote 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.)

															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' brief -- then it must encompass every racially
motivated refusal Page 392 U. S. 422 to sell or rent, and cannot be confined to officially sanctioned
segregation in 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 In its original form, 42 U.S.C. § 1982 was part of § 1 of the
Civil Rights Act of 1866. [ Footnote 28 ] That section was cast in sweeping terms:

															" 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. [ Footnote
29 ] " Page 392 U. S. 423 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."
[ Footnote 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 Page 392 U. S. 424 alike, it plainly meant to secure that right against
interference from any source whatever, whether governmental or
private. [ Footnote 31 ]

															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. [ Footnote 32 ] For that section, which provided fines and
prison terms for certain Page 392 U. S. 425 individuals who deprived others of rights "secured or protected"
by § 1, was carefully drafted to exempt private violations of § 1
from the criminal sanctions it imposed. [ Footnote 33 ] There would, of course, have been no
private violations to exempt if the only "right" granted by § 1 Page 392 U. S. 426 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.

															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, 83 U. S. 70 .
[ Footnote 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, [ Footnote 35 ]
and its language was far Page 392 U. S. 427 broader than would have been necessary to strike down
discriminatory statutes.

															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. . . . [ Footnote 36 ] The congressional debates are
replete with references to private injustices against Negroes --
references to white employers who refused to pay their Negro
workers, [ Footnote 37 ] white
planters who agreed among themselves not to hire freed slaves
without the permission of their former masters, [ Footnote 38 ] white Page 392 U. S. 428 citizens who assaulted Negroes [ Footnote 39 ] or who combined to drive them out of their
communities. [ Footnote
40 ]

															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. [ Footnote
41 ] The report noted the existence of laws virtually
prohibiting Negroes from owning or renting property in certain
towns, [ Footnote 42 ] but
described such laws as "mere isolated cases," representing "the
local outcroppings of a spirit . . . found to prevail everywhere"
[ Footnote 43 ] -- a spirit
expressed, for example, Page 392 U. S. 429 by lawless acts of brutality directed against Negroes who
traveled to areas where they were not wanted. [ Footnote 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.
[ Footnote 45 ]

															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 "too narrowly conceived." [ Footnote 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,
[ Footnote 47 ] Senator
Trumbull said this:

															"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 Page 392 U. S. 430 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. [ Footnote 48 ] " Page 392 U. S. 431 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

															"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. . . . [ Footnote 49 ]"

															On January 5, 1866, Senator Trumbull introduced the bill he had
in mind -- the bill which later became the Civil Rights Act of
1866. [ Footnote 50 ] He
described its objectives in terms that belie any attempt to read it
narrowly:

															"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 Page 392 U. S. 432 affected by them have some means of availing themselves of their
benefits. [ Footnote 51 ]"

															Of course, Senator Trumbull's bill would, as he pointed out,
"destroy all [the] discriminations" embodied in the Black Codes,
[ Footnote 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":

															"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. [ Footnote 53 ]"

															As to those basic civil rights, the Senator said, the bill would
"break down all discrimination between black men and white
men." [ Footnote 54 ] Page 392 U. S. 433 That the bill would indeed have so sweeping an effect was seen
as its great virtue by its friends [ Footnote 55 ] and as its great danger by its enemies,
[ Footnote 56 ] 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," [ Footnote 57 ] threatening the ability
of white citizens "to determine who [would] be members of [their]
communit[ies]." [ Footnote
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.
[ Footnote 59 ] Thus, when the
Senate passed the Civil Rights Act on February 2, 1866, [ Footnote 60 ] it did so fully aware
of the breadth of the measure it had approved.

															In the House, as in the Senate, much was said about eliminating
the infamous Black Codes. [ Footnote 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:

															"[W]hen I voted for the amendment to abolish slavery . . . , I
did not suppose that I was offering Page 392 U. S. 434 . . . 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. . . ."

															"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.
[ Footnote 62 ]"

															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. [ Footnote
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. [ Footnote 64 ] Page 392 U. S. 435 It thus appears that, when the House passed the Civil Rights Act
on March 13, 1866, [ Footnote
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.

															President Andrew Johnson vetoed the Act on March 27, [ Footnote 66 ] and, in the brief
congressional debate that followed, his supporters characterized
its reach in all-embracing terms. One stressed the fact that § 1
would confer "the right . . . to purchase . . . real estate . . .
without any qualification and without any restriction whatever. . .
." [ Footnote 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. [ Footnote
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, [ Footnote 69 ] and the Civil Rights Act of 1866 became law.
[ Footnote 70 ] Page 392 U. S. 436 In light of the concerns that led Congress to adopt it and the
contents of the debates that preceded 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 therein -- including the right to
purchase or lease property.

															Nor was the scope of the 1866 Act altered when it was reenacted
in 1870, some two years after the ratification of the Fourteenth
Amendment. [ Footnote 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 , 334 U. S. 333 .
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. [ Footnote 72 ] Page 392 U. S. 437 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. [ Footnote 73 ] "The cardinal rule is that repeals
by implication are not favored." Posadas v. National City
Bank, 296 U. S. 497 , 296 U. S. 503 .
All Congress said in 1870 was that the 1866 law "is hereby
reenacted." That is all Congress meant.

															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 , 383 U. S. 801 .
"We are not at liberty to seek ingenious analytical instruments," ibid., to carve from § 1982 an exception for private
conduct -- even 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 .

															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 Page 392 U. S. 438 to that constitutional provision that Congress originally
enacted what is now § 1982. The Amendment consists of two parts.
Section 1 states:

															"Neither slavery nor involuntary servitude, except as a
punishment for crime whereof the party shall have been duly
convicted, shall exist within the United States, or any place
subject to their jurisdiction."

															Section 2 provides:

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

															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 , 109 U. S. 20 . 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 109 U. S. 23 .
[ Footnote 74 ]

															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 Page 392 U. S. 439 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.

															"By its own unaided force and effect," the Thirteenth Amendment
"abolished slavery, and established universal freedom." Civil
Rights Cases, 109 U. S. 3 , 109 U. S. 20 .
Whether or not the Amendment itself did any more than that -- a
question not involved in this case -- it 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.)

															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. [ Footnote
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.
[ Footnote 76 ] And the
majority leaders in Congress -- who were, after all, the authors of
the Thirteenth Amendment -- had no doubt that its Enabling Clause
contemplated the sort of positive legislation that Page 392 U. S. 440 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

															"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. [ Footnote
77 ]"

															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 Page 392 U. S. 441 one. For this Court recognized long ago that, whatever else they
may have encompassed, the badges and incidents of slavery -- its
"burdens and disabilities" -- included restraints 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 , 109 U. S. 22 .
[ Footnote 78 ] Just as the
Black Codes, enacted after the Civil Page 392 U. S. 442 War to restrict the free exercise of those rights, were
substitutes for the slave system, so the exclusion of Negroes from
white communities became a substitute for the Black Codes. And when
racial discrimination herds men Page 392 U. S. 443 into ghettos and makes their ability to buy property turn on the
color of their skin, then it too is a relic of slavery.

															Negro citizens, North and South, who saw in the Thirteenth
Amendment a promise of freedom -- freedom to "go and come at
pleasure" [ Footnote 79 ] and
to "buy and sell when they please" [ Footnote 80 ] -- would be left with "a mere paper
guarantee" [ Footnote 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.

															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. Maryland , 4 Wheat. 316, 17 U. S.
421 :

															"Let the end be 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.
[ Footnote 82 ]"

															"The end is legitimate," the Congressman said,

															"because it is defined by the Constitution itself. The end is
the Page 392 U. S. 444 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. [ Footnote
83 ]"

															We agree. The judgment is Reversed. [ Footnote 1 ]

															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 , 319 U. S. 161 ; Hague v. C.I.O., 307 U. S. 496 , 307 U. S.
507 -514, 307 U. S.
527 -532.

															[ Footnote 2 ] 255 F.
Supp. 115 .

															[ Footnote 3 ]

															379 F.2d 33.

															[ Footnote 4 ] 389 U. S. 968 .

															[ Footnote 5 ]

															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.

															[ Footnote 6 ] Contrast the Civil Rights Act of 1968, § 804(a).

															[ Footnote 7 ] Contrast § 804(b).

															[ Footnote 8 ] Contrast §§ 804(c), (d), (e).

															[ Footnote 9 ] Contrast § 805.

															[ Footnote 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 | 7
and S. 409fn9|>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 7 and S. 409fn78|>n. 78, infra. [ Footnote 11 ] Contrast the Civil Rights Act of 1968, §§ 808-811.

															[ Footnote 12 ] Contrast § 813(a).

															[ Footnote 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. Ry. Clerks, 281 U.
S. 548 , 281 U. S.
568 -570; Deckert v. Independence Corp., 311 U. S. 282 , 311 U. S. 288 ; United States v. Republic Steel Corp., 362 U.
S. 482 , 362 U. S.
491 -492; J. I. Case Co. v. Borak, 377 U.
S. 426 , 377 U. S.
432 -435. Cf. Ex parte Young, 209 U.
S. 123 ; Griffin v. School Board, 377 U.
S. 218 .

															[ Footnote 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 1965 -- substantially 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 , 241 U. S. 39 -40; Steele v. Louisville & N. R. Co., 323 U.
S. 192 , 323 U. S. 207 ; Wyandotte Transportation Co. v. United States, 389 U. S. 191 , 389 U. S. 202 , 389 U. S. 204 . See generally Bell v. Hood, 327 U.
S. 678 , 327 U. S. 684 . 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, 62 U. S.
213 -214. Cf. Barry v. Edmunds, 116 U.
S. 550 , 116 U. S.
562 -565; Wills v. Trans World Airlines,
Inc., 200 F.
Supp. 360 , 367-368. 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.

															[ Footnote 15 ] See §§ 803(b), 807.

															[ Footnote 16 ]

															Hearings on S. 1358, S. 2114, and S. 2280 before the
Subcommittee on Housing and Urban Affairs of the Senate Committee
on Banking and Currency, 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.
S1387 (Feb. 16, 1968), S1453 (Feb. 20, 1968), S1641 (Feb. 26,
1968), S1788 (Feb. 27, 1968).

															[ Footnote 17 ]

															Hearings, supra, n 16, at 229.

															[ Footnote 18 ] Id. at 230. See also id. at 129, 162-163, 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.

															[ Footnote 19 ]

															114 Cong.Rec. H2807 (April 10, 1968). See also id. at
H2808. 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."

															[ Footnote 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 , 308 U. S.
198 -199 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. . . ."

															[ Footnote 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 Cemetery, 349 U. S. 70 ,
relied upon in dissent, post at 392 U. S. 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.

															[ Footnote 22 ]

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

															[ Footnote 23 ]

															332 U.S. 789

															[ Footnote 24 ] Compare Harmon v. Tyler, 273 U.S. 668, 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 , 334 U. S. 12 .

															[ Footnote 25 ]

															Two of this Court's early opinions contain dicta to the general
effect that § 1982 is limited to state action. Virginia v.
Rives, 100 U. S. 313 , 100 U. S.
317 -318; Civil Rights Cases, 109 U. S.
3 , 109 U. S. 16 -17.
But all that 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 100 U. S.
319 -322. See Georgia v. Rachel, 384 U.
S. 780 , 384 U. S.
797 -804. 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.

															It is true that a dictum in Hurd v. Hodge, 334 U. S.
24 , 334 U. S. 31 ,
characterized Corrigan v. Buckley, 271 U.
S. 323 , as having "held" that "[t]he action toward which
the provisions of the statute . . . [are] directed is governmental
action." 334 U.S. at 334 U. S. 31 .
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 271 U. S.
330 -331. 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 271 U. S. 331 . 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. 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.

															[ Footnote 26 ]

															379 F.2d 33, 43

															[ Footnote 27 ] Ibid. [ Footnote 28 ]

															Act of April 9, 1866, c. 31, § 1, 14 Stat. 27, reenacted 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. [ Footnote 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.

															[ Footnote 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. t 915-916, 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 | 49
and S. 409fn59|>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.).

															[ Footnote 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 the dissent notes, post at 392 U. S. 457 , 392 U. S. 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.)

															[ Footnote 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 , 325 U. S. 98 -99; United States v. Price, 383 U. S. 787 , 383 U. S.
804 .

															[ Footnote 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 remedies -- or perhaps only
preventive relief -- against 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 , 109 U. S. 19 , 109 U. S.
24 -25.

															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 392 U. S. 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.

															[ Footnote 34 ] See, e.g., Cong.Globe, 39th Cong., 1st Sess., at 39,
474, 516-517, 602-603, 1123-1125, 1151-1153, 1160. For the
substance of the codes and their operation, see H.R.Exec.Doc. No. 118, 39th Cong., 1st Sess.; S.Exec.Doc. No. 6,
39th Cong., 2d Sess.; 1 W. Fleming, Documentary History of
Reconstruction 273-312 (1906); E. McPherson, The Political History
of the United States of America During the Period of Reconstruction
294 (1871); 2 S. Morison and H. Commager, The Growth of the
American Republic 17-18 (1950 ed.); K. Stampp, The Era of
Reconstruction 79-81 (1965).

															[ Footnote 35 ] See n. 31 supra. It is true, as the dissent emphasizes, post at 392 U. S. 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 392 U. S. 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.)

															[ Footnote 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, 131-132.

															[ Footnote 37 ]

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

															[ Footnote 38 ] Id. at 1160.

															[ Footnote 39 ] Id. at 339-340, 1160, 1835. It is true, as the dissent
notes, post at 392 U. S. 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. [ Footnote 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.

															[ Footnote 41 ]

															Report of C. Schurz, S.Exec.Doc. No. 2, 39th Cong., 1st Sess.,
2, 17-25. See W. Brock, supra, n 36, at 40-42; K. Stampp, supra, n 34, at 73-75.

															[ Footnote 42 ]

															Report of C. Schurz, supra, at 23-24.

															[ Footnote 43 ] Id. at 25.

															[ Footnote 44 ] Id. at 18.

															[ Footnote 45 ] Id. at 35.

															[ Footnote 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
States "all laws . . . establishing any oligarchical privileges and
any distinction 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.

															[ Footnote 47 ] See n 46, supra. [ Footnote 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 392 U. S. 455 , 392 U. S.
462 -463. 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. 392 U.
S. infra. [ Footnote 49 ] Id. at 77. (Emphasis added.)

															[ Footnote 50 ] Id. at 129.

															[ Footnote 51 ] Id. at 474.

															[ Footnote 52 ] Ibid. See the dissenting opinion, post at 392 U. S.
458 .

															[ Footnote 53 ] Id. at 475

															[ Footnote 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 602-603, and the remarks of Congressman Wilson of
Iowa, id. at 1117-1118. But it would be a serious mistake
to infer from such statements any notion ( see the
dissenting opinion, post at 392 U. S. 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.

															[ Footnote 55 ] See, e.g., the remarks of Senator Howard of Michigan. Id. at 504.

															[ Footnote 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.

															[ Footnote 57 ]

															Senator Saulsbury of Delaware. Id. at 478.

															[ Footnote 58 ]

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

															[ Footnote 59 ]

															Senator Lane of Indiana. Id. at 603.

															[ Footnote 60 ] Id. at 606-607

															[ Footnote 61 ] See, e.g., id. at 1118-1119, 1123-1125, 1151-1153,
1160. See generally the discussion in the dissenting
opinion, post at 392 U. S.
464 -467.

															[ Footnote 62 ] Id. at 1151. (Emphasis added.)

															[ Footnote 63 ] Id. at 1124.

															[ Footnote 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 392 U. S.
467 -468, 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.

															[ Footnote 65 ] Id. at 1367. On March 15, the Senate concurred in the
several technical amendments that had been made by the House. Id. at 1413-1416.

															[ Footnote 66 ] Id. at 1679-1681.

															[ Footnote 67 ]

															Senator Cowan of Pennsylvania. Id. at 1781.

															[ Footnote 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.

															[ Footnote 69 ]

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

															[ Footnote 70 ]

															"Never before had Congress overridden 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.

															[ Footnote 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 reenacted. . . ."

															[ Footnote 72 ] See United States v. Mosley, 238 U.
S. 383 , 238 U. S.
387 -388; United States v. Price, 383 U.
S. 787 , 383 U. S.
804 -805; 2 W. Fleming, Documentary History of
Reconstruction 285-288 (1907); K. Stampp, supra, n 34, at 145, 171, 185, 198-204; G.
Stephenson, Race Distinctions in American Law 116 (1910).

															[ Footnote 73 ]

															The Court of Appeals in this case seems to have derived such an
assumption from language in Virginia v. Rives, 100 U. S. 313 , 100 U. S.
317 -318, and Hurd v. Hodge, 334 U. S.
24 , 334 U. S. 31 . See 379 F.2d 33, 39-40, 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. [ Footnote 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 .

															[ Footnote 75 ] See, e.g., Cong.Globe, 39th Cong., 1st Sess., 113, 318,
476, 499, 507, 576, 600-601.

															[ Footnote 76 ] See, e.g., Cong.Globe, 38th Cong., 1st Sess., 1366,
2616, 2940-2941, 2962, 2986; Cong.Globe, 38th Cong., 2d Sess.,
178-180, 182, 192, 195, 239, 241-242, 480-481, 529.

															[ Footnote 77 ]

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

															[ Footnote 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 109 U. S. 24 . "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 109 U. S. 24 -25.
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.

															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 ; Katzenbach v. McClung, 379 U.
S. 294 ) -- 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 109 U. S. 22 . Cf. id. at 109 U. S. 35 (dissenting opinion).

															In Hodges v. United States, 203 U. S.
1 , 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 203 U. S. 17 . 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 203 U. S. 18 , 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. 707, 712 (No. 14,897) (dictum of Mr. Justice Bradley,
on circuit), aff'd, 92 U. S. 542 ; United States v. Morris, 125 F. 322, 324, 330-331. 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 203 U. S. 37 .
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
irreconcilable 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.

															[ Footnote 79 ] See text accompanying n 48, supra. [ Footnote 80 ] Ibid. [ Footnote 81 ] See text accompanying n 62, supra. [ Footnote 82 ]

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

															[ Footnote 83 ] Ibid. MR. JUSTICE DOUGLAS, concurring.

															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."

															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."

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

															"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). [ Footnote 2/1 ] Page 392 U. S. 445 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 livestock -- to 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.

															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 .
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 , or
have been forced to sit in segregated seats in courtrooms, Johnson v. Virginia, 373 U. S. 61 . They
have been made to attend segregated and inferior schools, e.g.,
Brown v. Board of Education, 347 U. S. 483 , or
been denied entrance to colleges or graduate schools because of
their color, e.g., Pennsylvania v. Board of Trusts, 353 U. S. 230 ; Sweatt v. Painter, 339 U. S. 629 .
Negroes have been prosecuted for marrying whites, e.g., Loving
v. Virginia, 388 U. S. 1 . They
have been forced to live in segregated residential districts, Buchanan v. Warley, 245 U. S. 60 , and
residents of white neighborhoods have denied them entrance, e.g., Shelley v. Kraemer, 334 U. S.
1 . 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 ; public parks, New Orleans Park Improvement
Assn. v. Detiege, 358 U. S. 54 ;
restaurants, Lombard v. Louisiana, 373 U.
S. 267 ; public beaches, Mayor of Baltimore v.
Dawson, 350 U.S. 877; municipal Page 392 U. S. 446 golf courses, Holmes v. City of Atlanta, 350 U.S. 879;
amusement parks, Griffin v. Maryland, 378 U.
S. 130 ; buses, Gayle v. Browder, 352 U.S. 903;
public libraries, Brown v. Louisiana, 383 U.
S. 131 . 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. Alabama, 376 U. S. 650 .

															That brief sampling of discriminatory practices, many of which
continue today, stands almost as an annotation to what Frederick
Douglass (1817-1895) wrote nearly a century earlier:

															"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 Negroes -- and
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 Page 392 U. S. 447 ballot box, and, worst of all, it meets them in the jury box.
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. [ Footnote 2/2 ]"

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

															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 .

															Real estate agents use artifice to avoid selling "white
property" to the blacks. [ Footnote
2/3 ] 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 , may
well learn that the "vacancy" sign does not mean what it says,
especially if the motel has a swimming pool.

															On entering a half-empty restaurant, they may find "reserved"
signs on all unoccupied tables. Page 392 U. S. 448 The black is often barred from a labor union because of his
race. [ Footnote 2/4 ]

															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 , 349 U. S. 301 ,
but has been delayed by numerous stratagems and devices. [ Footnote 2/5 ] State laws, at times, have
even encouraged Page 392 U. S. 449 discrimination in housing. Reitman v. Mulkey, 387 U. S. 369 .

															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"
[ Footnote 2/6 ] 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.

															[ Footnote 2/1 ]

															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 1606-1861, p. 252 (1960); G. Stroud, Sketch of the Laws
Relating to Slavery 45-50 (1827); J. Wheeler, Law of Slavery
190-191 (1837).

															[ Footnote 2/2 ]

															Excerpt from Frederick Douglass, The Color Line, The North
American Review, June 1881, 4 The Life and Writings of Frederick
Douglass 343-344 (1955).

															[ Footnote 2/3 ] See Kamper v. Department of State of New
York, 22
N.Y.2d 690 , 238 N.E.2d 914.

															[ Footnote 2/4 ] See, e.g., O'Hanlon, The Case Against the Unions,
Fortune, Jan.1968, at 170.

															[ Footnote 2/5 ]

															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 (Tennessee "free-transfer" plan); Green v. County School
Board, 391 U. S. 430 (Virginia school board "freedom of choice" plan); Raney v.
Board of Education, 391 U. S. 443 (Arkansas "freedom of choice" plan); Bradley v. School
Board, 382 U. S. 103 (allocation of faculty allegedly on a racial basis); Griffin v.
School Board, 377 U. S. 218 (closing of public schools in Prince 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 (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 (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 if 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 (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 ; Calhoun v. Latimer, 377 U.
S. 263 ; Cooper v. Aaron, 358 U. S.
1 .

															[ Footnote 2/6 ]

															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 392 U. S.
474 -475. Certainly, then, it was "customary." To
suggest, however, that there might be room for argument in this
case ( post at 392 U. S. 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.

															MR. JUSTICE HARLAN, whom MR. JUSTICE WHITE joins,
dissenting.

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

															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," [ Footnote 3/1 ] and was
therefore forbidden by the Fourteenth Amendment even in the absence
of any statute. The Court, without Page 392 U. S. 450 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.

															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 statute [ Footnote 3/2 ] embodying "fair housing" provisions
[ Footnote 3/3 ] which would, at the
end of this year, make available to others, though apparently not
to the petitioners themselves, [ Footnote 3/4 ] 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 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 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. Page 392 U. S. 451 In the Civil Rights Cases, 109 U. S.
3 , 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:

															"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 16-17. [ Footnote
3/5 ] In Corrigan v. Buckley, 271 U.
S. 323 , 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, [ Footnote 3/6 ] were inapplicable because

															"they, like the Constitutional Amendment under whose sanction
they were enacted, do not in any manner prohibit or invalidate
contracts entered into Page 392 U. S. 452 by private individuals in respect to the control and disposition
of their own property." Id. at 271 U. S. 331 .
[ Footnote 3/7 ] In Hurd v.
Hodge, 334 U. S. 24 , 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:

															"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. . . ." Id. at 334 U. S. 31 .
[ Footnote 3/8 ] B Like the Court, I begin analysis of § 1982 by examining its
language. In its present form, the section 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."

															The Court finds it "plain and unambiguous," ante at 392 U. S. 420 ,
that this language forbids purely private, as well as
state-authorized, discrimination. With all respect, I do not find
it so. For me, there is an inherent ambiguity in the Page 392 U. S. 453 term "right," as used in § 1982. The "right" referred to may
either be a right to equal status under the law, in which case the
statute operates only against state-sanctioned 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. [ Footnote 3/9 ]

															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:

															"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 Page 392 U. S. 454 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."

															"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. . . ."

															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." [ Footnote 3/10 ] 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 392 U. S. 425 ,
than it does that § 2 was carefully drafted to enforce all of the
rights secured by § 1. C 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 Page 392 U. S. 455 history largely in chronological sequence, dealing separately
with the Senate and House debates.

															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. [ Footnote 3/11 ] On the same day, Senator Trumbull
said with regard to Senator Wilson's proposal:

															"The bill does not go far enough, if what we have been told
today 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."

															"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. [ Footnote
3/12 ]"

															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. [ Footnote 3/13 ] Page 392 U. S. 456 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 was also to be the aim of the promised
bills.

															On January 5, Senator Trumbull introduced both the Freedmen's
bill and the civil rights bill. [ Footnote 3/14 ] 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,

															"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.
[ Footnote 3/15 ]"

															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 Page 392 U. S. 457 of the freedmen than the civil rights bill, [ Footnote 3/16 ] defined both the rights 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."

															The form of the Freedmen's bill also undercuts the Court's
argument, ante at 392 U. S. 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.

															The civil rights bill was debated intermittently in the Senate
from January 12, 1866, until its eventual Page 392 U. S. 458 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." [ Footnote 3/17 ] Later the same day, Senator
Trumbull quoted § 2 of the bill in full, and said:

															"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. [ Footnote 3/18 ]"

															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 coextensive 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. "
[ Footnote 3/19 ] Page 392 U. S. 459 On January 29, Senator Trumbull also uttered the first of
several remarkably similar and wholly unambiguous statements which
indicated that the bill was aimed only at "state action." He
said:

															"[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
discrimination between persons on account of race or color shall be
abolished. [ Footnote
3/20 ]"

															Senator Trumbull several times reiterated this view. On February
2, replying to Senator Davis of Kentucky, he said:

															"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 Page 392 U. S. 460 Government no power whatever if the States will perform their
constitutional obligations. [ Footnote
3/21 ]"

															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. . . . [ Footnote 3/22 ]"

															Later the same day, he said:

															"This bill in no manner interferes with the municipal
regulations of any State 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. [ Footnote 3/23 ]"

															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 private 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 392 U. S. 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. [ Footnote 3/24 ] It seems
to me that Page 392 U. S. 461 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.

															On April 4, Senator Trumbull gave two additional indications
that the bill was intended to reach only state-sanctioned 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:

															"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]. [ Footnote 3/25 ]"

															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. . . . [ Footnote 3/26 ]"

															Thus, the Senate debates contain many explicit statements by the
bill's own author, to whom the Senate naturally Page 392 U. S. 462 looked for an explanation of its terms, indicating that the bill
would prohibit only state-sanctioned discrimination.

															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 392 U. S. 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 392 U. S. 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. [ Footnote 3/27 ] 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.
[ Footnote 3/28 ]

															The Court's quotation, ante at 392 U. S.
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 392 U. S. 455 ,
includes a statement that Page 392 U. S. 463 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 392 U. S. 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.

															The three additional statements of Senator Trumbull and the
remarks of senatorial opponents of the bill, quoted by the Court, ante at 392 U. S.
431 -433, 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. [ Footnote 3/29 ] The remark of Senator Lane which is
quoted by the Court, ante at 392 U. S. 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," [ Footnote 3/30 ] 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 Page 392 U. S. 464 civil courts and obedience to the laws of the country."

															[ Footnote 3/31 ] It seems to me
manifest that, taken in context, this remark is beside the point in
this case.

															The post-veto remarks of opponents of the bill, cited by the
Court, ante at 392 U. S. 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 392 U. S. 435 ,
that the bill would confer "the right . . . to purchase . . . real
estate . . . without any qualification" [ Footnote 3/32 ] 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.' [ Footnote
3/33 ]"

															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 those distinctions to be criminals against the
United States. . . ." [ Footnote
3/34 ] Thus, Senator Davis not only tied these obnoxious effects
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.

															The House debates are even fuller of statements indicating that
the civil rights bill was intended to reach only state-endorsed
discrimination. Representative Wilson Page 392 U. S. 465 was the hill's sponsor in the House. On the very first day of
House debate, March 1, Representative Wilson said, in explaining
the bill: .

															"[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.' [ Footnote 3/35 ]"

															A few minutes later, Representative Wilson said:

															"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. . . .
[ Footnote 3/36 ]"

															These statements surely imply that Representative Wilson
believed the bill to be aimed at state-sanctioned discrimination,
and not at purely private discrimination, Page 392 U. S. 466 which, of course, existed unhindered "[b]efore our Constitution
was formed."

															Other congressmen expressed similar views. On March 2,
Representative Thayer, one of the bill's supporters, said:

															"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."

															" 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 . . . ?
[ Footnote 3/37 ]"

															A few minutes later, he said:

															"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 . . . ? [ Footnote 3/38 ]"

															A little later, Representative Thayer added:

															"[The freedmen] are entitled to the benefit of that guarantee of
the Constitution 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 that guarantee. . . . " Page 392 U. S. 467 "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. . . . [ Footnote 3/39 ]"

															An opponent of the bill, Representative Bingham, said on March
9:

															"[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. [ Footnote 3/40 ]"

															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:

															"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 Page 392 U. S. 468 members thereof as such of the rights enumerated in this act.
This is the whole of it. [ Footnote
3/41 ]"

															Thus, Representative Shellabarger said in so many words that the
bill had no impact on "mere private wrongs."

															After the President's veto of the bill, Representative Lawrence,
a supporter, stated his views. He said:

															"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. . . ."

															"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."

															"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. [ Footnote
3/42 ] " Page 392 U. S. 469 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.

															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 392 U. S. 425 ,
n. 33, is a dialogue between Representative Wilson and
Representative Loan, another of the bill's supporters.

															The full exchange went as follows:

															"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?"

															"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."

															"Mr. LOAN. What penalty is imposed upon others than officers who
inflict these wrongs on the citizen?"

															"Mr. WILSON, of Iowa. We are not making a general criminal code
for the States."

															"Mr. LOAN. Why not abrogate those laws instead of inflicting
penalties upon officers who execute writs under them?"

															"Mr. WILSON, of Iowa. A law without a sanction is of very little
force."

															"Mr. LOAN. Then why not put it in the bill directly? " Page 392 U. S. 470 "Mr. WILSON, of Iowa. That is what we are trying to do.
[ Footnote 3/43 ]"

															The interpretation which the Court places on Representative
Wilson's remarks, see ante at 392 U. S. 425 ,
n. 33, is a conceivable one. [ Footnote 3/44 ] 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.

															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 392 U. S.
427 -428. [ Footnote
3/45 ] (Footnotes omitted.) As was pointed out in the discussion
of the Senate debates, supra, at 392 U. S. 462 ,
the references to white men's refusals to pay freedmen Page 392 U. S. 471 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, [ Footnote
3/46 ] 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.
[ Footnote 3/47 ] 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.
[ Footnote 3/48 ] These references
were shortly preceded by the remarks of Congressman Lawrence quoted supra at 392 U. S. 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. . . .
[ Footnote 3/49 ]"

															These fore and aft remarks imply that Congressman Lawrence's
concern was that the activities referred to would receive state
sanction.

															The Court, ante at 392 U. S. 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 Page 392 U. S. 472 the freedmen of the South. . . ." [ Footnote 3/50 ] However, up to that time, there had been
no mention whatever in the House debates of any purely private
discrimination, [ Footnote 3/51 ]
so one can only conclude that, by "individual cases,"
Representative Eldridge meant "isolated cases," not "cases of
purely private discrimination."

															The last significant reference [ Footnote 3/52 ] by the Court to the House debates is its
statement, ante at 392 U. S. 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:

															"[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
law that a man not supporting himself by labor shall Page 392 U. S. 473 be deemed a vagrant, and that a vagrant shall be sold. [ Footnote 3/53 ]"

															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 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 [ Footnote
3/54 ] and embodied a distaste for governmental interference
which was soon to culminate in the era of laissez-faire. [ Footnote 3/55 ] It seems to me
that most of these men would have regarded Page 392 U. S. 474 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. [ Footnote 3/56 ] Although Massachusetts had recently
enacted the Nation's first law prohibiting racial discrimination in
public accommodations, [ Footnote
3/57 ] Negroes could not ride within Philadelphia streetcars
[ Footnote 3/58 ] or attend public
schools with white children in New York City. [ Footnote 3/59 ] Only five States accorded equal
voting rights to Negroes, [ Footnote
3/60 ] and it appears that Negroes were allowed to serve on
juries only in Massachusetts. [ Footnote 3/61 ] Residential segregation was the
prevailing pattern almost everywhere Page 392 U. S. 475 in the North. [ Footnote 3/62 ]
There were no state "fair housing" laws in 1866, and it appears
that none had ever been proposed. [ Footnote 3/63 ] 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 kind [ Footnote 3/64 ] is, for me, strong additional evidence
that it was not regarded as extending so far.

															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. [ Footnote 3/65 ]
Acts done under the Page 392 U. S. 476 color of such "customs" were, of course, said by the Court in
the Civil Rights Cases, 109 U. S. 3 , to
constitute "state action" prohibited by the Fourteenth Amendment. See id. at 109 U. S. 16 , 109 U. S. 17 , 21.
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. [ Footnote 3/66 ] II 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, [ Footnote 3/67 ] and this Court has twice expressed
similar Page 392 U. S. 477 doubts. See Hodges v. United States, 203 U. S.
1 , 203 U. S. 16 -18; Corrigan v. Buckley, 271 U. S. 323 , 271 U. S. 330 . But cf. Civil Rights Cases, 109 U. S.
3 , 109 U. S. 22 .
Thus, it is plain that the course of decision followed by the Court
today entails the resolution of important and difficult issues.

															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 40-45.

															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.

															The occurrence to which I refer is the recent enactment of the
Civil Rights Act of 1968, Pub.L. 90-284, 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 Page 392 U. S. 478 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. [ Footnote 3/68 ] 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 392 U. S. 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.

															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. [ Footnote
3/69 ] For the certiorari jurisdiction was not Page 392 U. S. 479 conferred upon this Court "merely to give the defeated party in
the . . . Court of Appeals another hearing," Magnum Co. v.
Coty, 262 U. S. 159 , 262 U. S. 163 ,
or "for the benefit of the particular litigants," Rice v. Sioux
City Cemetery, 349 U. S. 70 , 349 U. S. 74 ,
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 , 261 U. S. 393 . 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.

															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 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 349 U. S. 77 ,
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 349 U. S. 76 -77.
This case certainly presents difficulties as substantial as those
in Rice. Compare what has been said in this
opinion with 349 U.S. Page 392 U. S. 480 at 349 U. S. 72 -73; see also Bell v. Maryland, 378 U.
S. 226 . 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.

															For these reasons, I would dismiss the writ of certiorari as
improvidently granted.

															[ Footnote 3/1 ]

															This "state action" argument emphasizes the respondents' role as
housing developers exercising continuing authority over a suburban
housing complex with about 1,000 inhabitants.

															[ Footnote 3/2 ]

															The Civil Rights Act of 1968, Pub.L. 90-284, 82 Stat. 73.

															[ Footnote 3/3 ] Id. §§ 801-819.

															[ Footnote 3/4 ] See ante at 392 U. S. 417 ,
n. 21.

															[ Footnote 3/5 ] See also Virginia v. Rives, 100 U.
S. 313 , 100 U. S.
317 -318.

															[ Footnote 3/6 ]

															Section 1978 of the Revised Statutes.

															[ Footnote 3/7 ] See also Buchanan v. Warley, 245 U. S.
60 , 245 U. S.
78 -79.

															[ Footnote 3/8 ]

															It seems to me that this passage is not dictum, as the Court
terms it, ante at 392 U. S. 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."

															[ Footnote 3/9 ]

															Despite the Court's view that this reading flies in the face of
the "plain and unambiguous terms" of the statute, see ante at 392 U. S. 420 ,
it is not without precedent. In the Civil Rights Cases, 109 U. S. 3 , 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 in some 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 109 U. S. 17 .

															[ Footnote 3/10 ]

															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 392 U. S. 422 ,
n. 29.

															[ Footnote 3/11 ] See Cong.Globe, 39th Cong., 1st Sess., 392.

															[ Footnote 3/12 ] Id. at 43.

															[ Footnote 3/13 ] See ibid. [ Footnote 3/14 ] See Cong.Globe, 39th Cong., 1st Sess., 129.

															[ Footnote 3/15 ]

															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.

															[ Footnote 3/16 ]

															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.

															[ Footnote 3/17 ]

															Cong.Globe, 39th Cong., 1st Sess., 474. (Emphasis added.)

															[ Footnote 3/18 ] Id. at 475. (Emphasis added.)

															[ Footnote 3/19 ] Id. at 500. (Emphasis added.) The Civil Rights
Cases, 109 U. S. 3 , 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 109 U. S. 17 .
(Emphasis added.)

															[ Footnote 3/20 ]

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

															[ Footnote 3/21 ] Id. at 600. (Emphasis added.)

															[ Footnote 3/22 ] Id. at 1758

															[ Footnote 3/23 ] Id. at 1761. (Emphasis added.)

															[ Footnote 3/24 ]

															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 36-39 (1910); L.
Litwack, North of Slavery: The Negro in the Free States, 1790-1860,
at 93-94 (1961).

															[ Footnote 3/25 ]

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

															[ Footnote 3/26 ] Id. at 1760. (Emphasis added.)

															[ Footnote 3/27 ] See Cong.Globe, 39th Cong., 1st Sess., 339-340.

															[ Footnote 3/28 ]

															The Court also gives prominence, see ante at 392 U. S.
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.

															[ Footnote 3/29 ] See infra at 392 U. S.
473 -475

															[ Footnote 3/30 ]

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

															[ Footnote 3/31 ] Ibid. [ Footnote 3/32 ] See Cong.Globe, 39th Cong., 1st Sess., 1781.

															[ Footnote 3/33 ]

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

															[ Footnote 3/34 ] Ibid. [ Footnote 3/35 ]

															Cong.Globe, 39th Cong., 1st Sess., 111. (Emphasis added.)

															[ Footnote 3/36 ] Id. at 1119. (Emphasis added.)

															[ Footnote 3/37 ] Id. at 1151. (Emphasis added.)

															[ Footnote 3/38 ] Id. at 1152. (Emphasis added.)

															[ Footnote 3/39 ] Id. at 1153. (Emphasis added.)

															[ Footnote 3/40 ] Id. at 1291. (Emphasis added.)

															[ Footnote 3/41 ] Id. at 1293-1294. 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
coextensive 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.

															[ Footnote 3/42 ]

															Cong.Globe, 39th Cong., 1st Sess., 1832-1833. (Emphasis
added.)

															[ Footnote 3/43 ] Id. at 1120.

															[ Footnote 3/44 ]

															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 392 U. S.
458 .

															[ Footnote 3/45 ]

															The Court's reliance, see ante at 392 U. S. 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 392 U. S.
467 -468.

															[ Footnote 3/46 ] See Cong.Globe, 39th Cong., 1st Sess., 1160.

															[ Footnote 3/47 ] See ibid. [ Footnote 3/48 ] See Cong.Globe, 39th Cong., 1st Sess., 1835.

															[ Footnote 3/49 ] Ibid. (Emphasis added.)

															[ Footnote 3/50 ]

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

															[ Footnote 3/51 ] See id. at 1115-1124, 1151-1155.

															[ Footnote 3/52 ]

															The emphasis given by the Court to the statement of
Representative Thayer which is quoted ante at 392 U. S.
433 -434 surely evaporates when the statement is viewed
in conjunction with Representative Thayer's immediately following
remarks, quoted supra at 392 U. S.
466 -467.

															[ Footnote 3/53 ] 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 1123-1124.

															[ Footnote 3/54 ]

															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 7-22 (1930).

															[ Footnote 3/55 ]

															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 126-131 (1965).

															[ Footnote 3/56 ] See generally M. Konvitz & T. Leskes, A Century of
Civil Rights (1961); L. Litwack, North of Slavery: The Negro in the
Free States, 1790-1860 (1961); K. Stampp, supra, at 12-17;
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).

															[ Footnote 3/57 ] See M. Konvitz & T. Leskes, supra, at
155-156; 1864-1865 Mass. Acts and Resolves 650.

															[ Footnote 3/58 ]

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

															[ Footnote 3/59 ]

															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, 133-134, 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.

															[ Footnote 3/60 ] See L. Litwack, supra, at 91-92. The States
were Massachusetts, Rhode Island, Maine, New Hampshire, and
Vermont. See id. at 91.

															[ Footnote 3/61 ] See L. Litwack, supra, at 94.

															[ Footnote 3/62 ] See id. at 168-170.

															[ Footnote 3/63 ]

															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.)

															[ Footnote 3/64 ]

															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.

															[ Footnote 3/65 ]

															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."

															[ Footnote 3/66 ] See, e.g., H. Flack, The Adoption of the Fourteenth
Amendment 94 (1908); J. James, The Framing of the Fourteenth
Amendment 126-128, 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).

															[ Footnote 3/67 ] See, e.g., Cong.Globe, 39th Cong., 1st Sess., 504-505
(Senator Johnson); id. at 1291-1293 (Representative
Bingham).

															[ Footnote 3/68 ]

															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.

															[ Footnote 3/69 ] See ante at 392 U. S. 417 ,
n. 21.

Summary: In *Jones v. Alfred H. Mayer Co.* (1968), the United States Supreme Court ruled that 42 U.S.C. § 1982, a federal law prohibiting racial discrimination in the sale or rental of property, applies to private actors and not just state action. The Court interpreted the language and legislative history of § 1982, part of the Civil Rights Act of 1866, as intending to prohibit all forms of racial discrimination in the sale or rental of property, regardless of whether that discrimination was aided by governmental action. This decision affirmed the right of citizens to be free from racial discrimination in housing, enforceable through private legal action.