Potter Stewart

“ Thus, when Congress provided in § 1 of the Civil Rights Act that the right to purchase and lease property was to be enjoyed equally throughout the United States by Negro and white citizens alike, it plainly meant to secure that right against interference from any source whatever, whether governmental or private. ”

“ And when racial discrimination herds men into ghettos and makes their ability to buy property turn on the color of their skin, then it too is a relic of slavery.
Negro citizens, North and South, who saw in the Thirteenth Amendment a promise of freedom-freedom to 'go and come at pleasure' [79] and to 'buy and sell when they please' [80] -would be left with 'a more paper guarantee' [81] if Congress were powerless to assure that a dollar in the hands of a Negro will purchase the same thing as a dollar in the hands of a white man. ”

“ For, even if the State and its agents lend no support to those who wish to exclude persons from their communities on racial grounds, the fact remains that, whenever property 'is placed on the market for whites only, whites have a right denied to Negroes.' [27] So long as a Negro citizen who wants to buy or rent a home can be turned away simply because he is not white, he cannot be said to enjoy 'the same right * * * as is enjoyed by white citizens * * * to * * * purchase (and) lease * * * real and personal property.' 42 U.S.C. § 1982. ”

“ It is idle to say that a man is free who cannot go and come at pleasure, who cannot buy and sell, who cannot enforce his rights. * * * (So) when the constitutional amendment is adopted I trust we may pass a bill, if the action of the people in the southern States should make it necessary, that will be much more sweeping and efficient than the bill under consideration.' [48]
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. ”

“ 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.'
The remaining question is whether Congress has power under the Constitution to do what § 1982 purports to do: to prohibit all racial discrimination, private and public, in the sale and rental of property. Our starting point is the Thirteenth Amendment, for it was pursuant to that constitutional provision that Congress originally enacted what is now § 1982. ”

“ 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. ”

“ 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 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. ”

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

“ It is true, as the dissent emphasizes, post, at 460, that Senator Trumbull remarked at one point that the Act 'could have no operation in Massachusetts, New York, Illinois, or most of the States of the Union,' whose laws did not themselves discriminate against Negroes. Cong. Globe, 39th Cong., 1st Sess., 1761. But the Senator was simply observing that the Act would 'in no manner (interfere) with the * * * regulations of any State which protects all alike in their rights of person and property.' Ibid. ”

“ Yet the majority said that 'no mere personal assault or trespass or appropriation operates to reduce the individual to a condition of slavery,' id., at 18, 27 S.Ct., at 9, and asserted that only conduct which actually enslaves someone can be subjected to punishment under legislation enacted to enforce the Thirteenth Amendment. ”

“ 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. ”

“ The majority recognized that 'one of the disabilities of slavery, one of the indicia of its existence, was a lack of power to make or perform contracts.' 203 U.S., at 17, 27 S.Ct. at 9. And there was no doubt that the defendants had deprived their Negro victims, on racial grounds, of the opportunity to dispose of their labor by contract. ”

“ Of course an 'abrogation of civil rights made 'in consequence of * * * custom, or prejudice' might as easily be perpetrated by private individuals or by unofficial community activity as by state officers armed with statute or ordinance.' J. tenBroek, Equal Under Law 179 (1965 ed.) .
31 When Congressman Bingham of Ohio spoke of the Civil Rights Act, he charged that it would duplicate the substantive scope of the bill recently vetoed by the President, see n. 30, supra, and that it would extend the territorial reach of that bill throughout the United States. Cong. ”

“ For that section, which provided fines and prison terms for certain individuals who deprived others of rights 'secured or protcted' by § 1, was carefully drafted to exempt private violations of § 1 from the criminal sanctions it imposed. ”