Re Fourteenth Amendment & colorblindness

[Volokh, Eugene]

	That may well be right -- and it accounts both for (1) the
apparent lack of any successful attempts (or any attempts at all?) to
enforce the Act as to private contracting until the 1960s, and (2) the
likelihood that nearly everybody in 1866 would have been shocked at the
prospect of *all contracts* being subject to an antidiscrimination norm.
It's also consistent with the Freedmen's Bureau Act of 1866, which
provided "That in every State or district where the ordinary course of
judicial proceedings has been interrupted by the rebellion . . . the
right 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 have full and equal benefit of all laws and
proceedings concerning personal liberty, personal security, and the
acquisition, enjoyment, and disposition of estate, real and personal,
including the constitutional right to bear arms, shall be secured to and
enjoyed by all the citizens of such State or district without respect to
race or color, or previous condition of slavery."  The reference to the
right to bear arms, I take it, sought to offer the freedmen private
protection, while the rest of the provisions sought to offer them
governmental protection.

	Even today, I doubt that a total ban on race discrimination in
all contracting would pass muster, even with many on the Left.  It
would, after all, ban purely private decisions to shop at this store and
not at that; decisions to hire babysitters and enter into two-person
partnerships; boycotts of white-owned stores that don't hire enough
blacks (recall that the law says that "all persons" "shall have the
*same* right" as "white citizens," which does textually mandate the
*same* treatment, not just protection for blacks; and see the Freedmen's
Bureau Bill "without respect to race or color" language).  But in 1866?
Really?  What evidence is there that any material number of people
understood the law as applying to such private decisions?

	Nor can one just point to the text.  The text, "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," speaks of many matters that relate to
governmental law enforcement -- being parties, giving evidence, having
the benefit of laws and proceedings for the security of proceedings,
being punished, and the like.  

	The matters that are potentially ambiguous seem unambiguously
governmental when looking at the neighboring terms, at the historical
context, and to the social relationships involved:  Can we, for
instance, imagine that the law was understood as barring testators from
race discrimination in the selection of their devisees?  I doubt it --
but that just means that the "right to inherit" means the right to have
nondiscriminatory governmental protection in enforcing privately created
wills, not the right to be free from private discrimination in the
drafting of such wills.  What evidence is there that "to make and
enforce contracts" was seen as radically different from these other
provisions?

	Eugene

> -----Original Message-----
> From: Stephen Siegel [mailto:ssiegel at condor.depaul.edu] 
> Sent: Wednesday, June 06, 2007 9:42 AM
> To: Zietlow, Rebecca E.
> Cc: Volokh, Eugene; CONLAWPROF at lists.ucla.edu
> Subject: RE: Re Fourteenth Amendment & colorblindness
> 
> I'd like to try out a thought related to the 1866 Civil 
> Rights Act and private action; forgive me if it is obviously 
> wrong; but I'd appreciate some feed back on whether it might 
> be historically accurate.
> 
> Suppose A wants to employ B but B refuses the offer of 
> employment because A of A's race.  Under the 1866 Civil 
> Rights Act that is not denying A's "right" to make a 
> contract.  Suppose A wants to employ B and B wants to accept 
> the offer but KKK, because of A's race, threatens to maim B 
> if he does.  I suggest that under the 1866 Civil Rights Act 
> that does deny B's (and A's) right to contract.
> 
> This understanding would respect individual freedom to 
> contract or not, yet present some remedy for private violence.
> 
> Stephen Siegel
> 
> 
> 
> 
> On Wed, 6 Jun 2007, Zietlow, Rebecca E. wrote:
> 
> > Eugene and Earl,
> >
> >
> >
> > It is clear that the supporters of the 1866 Bill wanted to 
> eliminate 
> > discriminatory state action in the form of the Black Codes, 
> but that 
> > is not all they wanted to do.  Senator Wilson introduced an early 
> > version of the Civil Rights Act in December 1865 after the 13th 
> > Amendment was ratified but before it had been certified by 
> the Secretary of State.
> > That bill would have annulled the Black Codes and little more.  
> > However, even Wilson pointed out the existence of discriminatory 
> > private action as a reason for the bill.  Wilson remarked that the 
> > bill was needed in part because "in Mississippi rebel 
> States forces, 
> > men who were in rebel armies, are traversing the State, 
> visiting the freedmen, disarming them,
> > perpetrating murder and outrages upon them."   Cong. Globe, 
> 39th Cong.,
> > 1st Sess. 40 (Dec. 13, 1865).  However, other members of Congress 
> > argued that Wilson's bill would not do enough to protect 
> freed slaves 
> > it was limited to because it seemed to be limited to 
> undoing the Black 
> > Codes enacted by rebel states such as Mississippi.  Sen. Sherman 
> > remarked that it would be wiser to wait until the 13th 
> Amendment was 
> > certified because "When that is done, there will then be, in my 
> > judgment, no doubt of the power of Congress to pass this 
> bill, and to 
> > make it definite and general (throughout the United States) 
> in its terms."
> >
> >
> >
> > First, one of the most important provisions of the 1866 Act was the 
> > citizenship clause, which purported to make freed slaves 
> United States 
> > citizens.  The concept of federal citizenship was very important to 
> > the Framers - the government had a duty to protect citizens 
> and those 
> > under its jurisdiction.  The duty to protect was an 
> affirmative duty, 
> > part of the social contract between the federal government 
> and those 
> > who paid it allegiance.  Cong. Globe, 39th Cong., 1st Sess. 
> at 572.  Thus, when
> > introducing the bill to the Senate Lyman Trumbull stated 
> that   "This
> > measure is intended to give effect to that declaration and 
> secure to 
> > all persons within the United States practical freedom. 
> There is very 
> > little importance in the general declaration of abstract truths and 
> > principles unless they can be carried into effect, unless 
> the persons 
> > who are to be affected by them have some means of availing 
> themselves 
> > of those benefits."  Cong. Globe, 39th Cong., 1st Sess. 
> 474.  The bill 
> > would secure these freedoms by declaring freed slaves to be 
> citizens 
> > and establishing fundamental rights, including the right to 
> contract.  Id.
> > at 475.  Trumbull went on to explain that the Bill would 
> protect those 
> > whose fundamental rights were not adequately protected by 
> state law, 
> > asserting that the 13th Amendment empowered Congress to 
> punish those 
> > who "undertake to deny them their freedom."  Id. at 475.
> >
> >
> >
> > Opponents of the Bill argued that it would create a federal police 
> > power and that it violated the principles of federalism.  
> For example, 
> > in his veto message, President Johnson accused Congress of 
> creating a 
> > general federal criminal law, indicating that he believed that the 
> > bill addressed private action.  Id. at 1659.  Responding to this 
> > critique, Senator Howard responded, "The absurd construction forced 
> > upon (the 13th
> > Amendment) leaves him without family, without property, without the 
> > implements of husbandry" etc.  The narrow construction would allow 
> > states to effectively reduce former slaves to the same status of 
> > slavery.  "Such was not the intention of the advocates of this 
> > amendment.  Its intention was to make him the opposite of 
> the slave, 
> > to make him a free man."  What does it mean to be a free 
> man?  To be 
> > able to acquire property, have a family, wife, children, 
> home.  This 
> > bill would "secure to these men whom we have made free the ordinary 
> > rights of a freeman and nothing else."  Id. at 504.  
> Senator Lane of 
> > Indiana added that the remedy was needed because second 
> section of the 
> > legislation is necessary because we fear the state courts 
> in the slave 
> > states will not enforce the law.  Id. at 602.  He 
> explained, "But what 
> > harm is to result from it?  Who is to be oppressed?  . . . 
> It takes no 
> > right away from any white man.  It simply places others on the same 
> > platform upon which he stands."  Id. at 603.
> >
> >
> >
> > In the House, Rep. Donnelly also articulated the social contract 
> > theory of protection for freed slaves.  "Shall the old 
> reign of terror 
> > revive in the south, when no northern man's life was worth 
> an hour's purchase?
> > Or shall that great Constitution be what its Founder meant 
> it to be, a 
> > shield and protection over the head of the lowliest and poorest 
> > citizens in the remotest region of the nation?"  Id. at 586.  This 
> > theory was perhaps articulated most clearly by Rep. 
> Hubbard, who said 
> > that the bill was "intended to cast the shield of 
> protection over four 
> > million American citizens, including old men, young men, 
> and women and children.
> > They are loyal and faithful, every one."  They helped on the 
> > battlefield and "prayed to God for the success of the nation's 
> > banner."  "We owe them protection in return for their faithful 
> > allegiance."  I have written extensively about the 
> Reconstruction Era 
> > Congress' link between citizenship and the protection of individual 
> > rights, most recently in my book, Enforcing Equality: Congress, the 
> > Constitution and the Protection of Individual Rights.
> >
> >
> >
> > Another bit of evidence supporting the view that the 1866 
> Civil Rights 
> > Act was intended to address private discrimination is the 
> fact that it 
> > was modeled on the Fugitive Slave Act, which imposed penalties on 
> > private actors who harbored fugitive slaves.  Senator Trumbull 
> > explained, "The fugitive slave law was enacted for the purpose of 
> > punishing white men who aided to give the natural gift of 
> liberty to 
> > those who were enslaved.  Now, sir, we propose to give the 
> provisions 
> > of the fugitive slave law for the purpose of punishing 
> those who deny 
> > freedom, not those who seek to aid persons to escape to 
> freedom."  Id.
> > at 605.  The House sponsor of the bill Rep. James Wilson, 
> agreed: The 
> > remaining sections of the bill are based on the 1850 Fugitive Slave 
> > Act "And, sir, I am not willing that all of these precedents, 
> > legislative and judicial, which aided slavery so long, 
> should now be 
> > brushed into oblivion when freedom needs their assistance."  Id. at 
> > 1118.  Robert Kacorowski has explained the connection in 
> great detail 
> > in a recent article in Fordham Law Review.
> >
> >
> >
> > I think this is substantial evidence that the Framers of the 1866 
> > Civil rights Act intended to reach private action.  As everyone on 
> > this list knows, the Warren Court agreed, upholding the 
> application of the Act to
> > private parties in Jones v. Mayer.   Which brings us back to the
> > original dispute that started this line - whether the 
> Rehnquist, now 
> > Roberts, Court, in particular Justice Thomas, are really 
> "originalist"
> > when it comes to interpreting the 14th Amendment.  I have long been 
> > convinced that they are not, that ironically the "activist" Warren 
> > Court came considerably closer to the original intent of 
> the Framers 
> > in cases such as Jones and Katzenbach v. Morgan.  For a detailed 
> > explication of this argument, folks can see my piece, "The Judicial 
> > Restraint of the Warren Court" at http://ssrn.com/author=291341.
> >
> >
> >
> > And, to Eugene's point that he is sure that there was 
> rampant private 
> > race discrimination during the period of Reconstruction, in 
> the north 
> > as well as the south, I am also sure that he is correct.  As Supre 
> > Court cases such as Slaughterhouse and the Civil Rights Cases 
> > illustrate, the courts weren't on board with the Reconstruction 
> > Congress' vision, and that vision was never realized in the 19th 
> > century.  It took until the 1960s civil rights movement and the 
> > "Second Reconstruction" period for Congress to return to 
> the spirit of 
> > the Reconstruction Congress.  (I talk about this in 
> Enforcing Equality 
> > as well).  The difference in the 1960s was that unlike the Supreme 
> > Court in the mid 1800s, the Warren Court shared Congress's 
> vision and 
> > upheld Congress' efforts instead of narrowing them or 
> striking them down.
> >
> >
> >
> > Sorry this is so long (and sorry about the shameless plugs)!
> >
> >
> >
> > Rebecca E. Zietlow
> >
> > Charles W. Fornoff Professor of Law and Values
> >
> > University of Toledo College of Law
> >
> > (419) 530-2872
> >
> > 
> http://www.nyupress.org/books/Enforcing_Equality-products_id-4830.html
> >
> > http://ssrn.com/author=291341
> >
> >
> >
> >
> >
> > ________________________________
> >
> > From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
> > Sent: Tue 6/5/2007 4:24 PM
> > To: CONLAWPROF at lists.ucla.edu
> > Subject: Re Fourteenth Amendment & colorblindness
> >
> >
> >
> > 	The 1866 Civil Rights Act established the same right in 
> every State 
> > and Territory to make and enforce contracts . .  as is enjoyed by 
> > white citizens."
> >
> >
> >
> > 	I do not know whether there were any successul lawsuits 
> challenging 
> > this practice as violating equal protection in the 1800s.
> > What they did was to grant to "any person . . the same 
> right to make 
> > contracts regardless of their race."  In the debates over the Act, 
> > members of Congress made clear that they intended the Act 
> to wipe out 
> > the type of discrimination on the basis of race that was 
> going on in 
> > the southern states under the Black Codes, by both private 
> and public 
> > parties.  I would be happy to give you citations if you 
> like since I 
> > am spending the summer studying the 13th Amendment 
> enforcement power.
> >
> >
> >
> > 	     ***  I'd love to see that.  I always found it 
> highly improbable 
> > that the 1866 Act was understood as applying to a party's 
> > discrimination in choice of contracting party -- after all, 
> that would 
> > bar all race-based employment discrimination, all race 
> discrimination 
> > in choices of whether to buy goods, all race discrimination 
> in choice 
> > of domestic servants, nannies, and the like (and, for that 
> matter, the 
> > servant's discrimination in choice of whom to work for).
> >
> >
> >
> > 	    ***  How could that vision of antidiscrimination law have
> > been endorsed in 1866?   Am I missing something about the 
> context?  But
> > I'd be glad to see evidence to the contrary.
> >
> >
> >
> > 	Respectfully, I don't think the lack of victories in 
> court is at all 
> > dispositive of the intent of the framers of the 1866 Civil 
> Rights Act.  
> > What is dispositive is what the Framers did and said.
> >
> >
> >
> > 	    *** Fair enough, but if we think it was understood 
> in the legal 
> > language of the era as banning employment and contracting 
> > discrimination but no judges -- and maybe even not many 
> litigants -- 
> > at the time understand it that way, that might bear on the 
> question of 
> > how it was understood.
> >
> >
> >
> > 	   Moreover, the act was originally based not on the 
> 14th Amendment 
> > but on the 13th Amendment - members of the Reconstruction Congress 
> > thought that race discrimination in the making and enforcing of 
> > contracts was a legacy of slavery that they wanted to 
> abolish in order 
> > to ensure the liberty of freed slaves.
> >
> >
> >
> >
> >
> >
> >
> > 	I am sure that there was a lot of the type of 
> discrimination that 
> > Eugene mentions in the late 1800s.  Of course, by that time 
> > Reconstruction was long gone and Jim Crow was taking over the south.
> >
> >
> >
> > 	    ***  Yet I'd think that there would be lots of such 
> > discrimination even in the North, no?
> >
> >
> 
>