John Marshall Harlan II

“ 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 ”

“ The Court, without reaching the second ground alleged, holds that the petitioners are entitled to relief under 42 U.S.C. § 1982, and that § 1982 is constitutional as legislation appropriate to enforce the Thirteenth Amendment.
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. ”

“ On January 29, Senator Trumbull also uttered that first of several remarkably similar and wholly unambiguous statements which indicated that the bill was aimed only at 'state action.' He said:
' (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. ”

“ An individual cannot deprive a man of his right * * * to hold property, to buy and sell * * *; he may, by force or fraud, interfere with the enjoyment of the right in a particular case; * * * but, unless protected in these wrongful acts by some shield of state law or state authority, he cannot destroy or injure the right * * *.' 109 U.S., at 17, 3 S.Ct., at 25.
10 The Court does not claim that the deletion from § 1 of the statute, in 1874, of the words 'any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding' was intended to have any substantive effect. ”

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

“ As was pointed out in the discussion of the Senate debates, supra at 462, the references to white men's refusals to pay freedmen and their agreements not to hire freedmen without their 'masters" consent are by no means contrary to a 'state action' view of the civil rights bill, since the bill expressly forbade action pursuant to 'custom' and both of these practices reflected 'customs' from the time of slavery. The Court cites two different House references to assaults on Negroes by whites. ”

“ Although Massachusetts had recently enacted the Nation's first law prohibiting racial discrimination in public accommodations, [57] Negroes could not ride within Philadelphia streetcars [58] or attend public schools with white children in New York City. [59] Only five States accorded equal voting rights to Negroes, [60] and it appears that Negroes were allowed to serve on juries only in Massachusetts. [61] Residential segregation was the prevailing pattern almost everywhere in the North. [62] There were no state 'fair housing' laws in 1866, and it appears that none had ever been proposed. ”

“ In the Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, the Court said of identical language in the predecessor statute to § 1982:
' (C) ivil rights, such as are guaranteed by the constitution against state aggression, cannot be impaired by the wrongful acts of individuals, unsupported by state authority * * *. The wrongful act of an individual, unsupported by any such authority, is simply a private wrong, or a crime of that individual ”

“ 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 who refuse to sell to them on account of race or color, unless the parties are able to resolve their dispute by other means. ”

“ 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. ”

“ 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. ”

“ It seems to me that most of these men would have regarded it as a great intrusion on individual liberty for the Government to take from a man the power to refuse for personal reasons to enter into a purely private transaction involving the disposition of property, albeit those personal reasons might reflect racial bias. ”

“ It secures * * * equality of protection in those enumerated civil rights which the States may deem proper to confer upon any races. * * * It must * * * be noted that the violations of citizens' rights, which are reached and punished by this bill, are those which are inflicted under 'color of law,' &c. The bill does not reach mere private wrongs, but only those done under color of state authority * * *. (I) ts whole force is expended in defeating an attempt, under State laws, to deprive races and the members thereof as such of the rights enumerated in this act. ”

“ As in the case of the Senate debates, most of these appear upon close examination to provide little support. The first significant citation, ante, at 425, n. 33, is a dialogue between Representative Wilson and Representative Loan, another of the bill's supporters.
'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? ”

“ I am not dissuaded from my view by the circumstance that the 1968 Act was enacted after oral argument in this case, at a time when the parties and amici curiae had invested time and money in anticipation of a decision on the merits, or by the fact that the 1968 Act apparently will not entitle these petitioners to the relief which they seek. [69] For the certiorari jurisdiction was not conferred upon this Court 'merely to give the defeated party in the * * * Court of Appeals another hearing,' Magnum Import Co. v. ”