White cartels, the civil rights act of 1866, and the history of Jones v. Alfred H. Mayer Co.

Fordham Law Review

Volumn 77, Issue 3, 2008, Pages 999-1050

  Miller, Darrell A H ^a  

^a UNIVERSITY OF CINCINNATI   (United States)

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EID: 58849109110     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (537)

1. 392 U.S. 409 (1968).
2. Id. at 443-44.
3. That year, Congress enacted the Civil Rights Act of 1968, including Title VIII, the Fair Housing Act. See Pub. L. No. 90-284, 82 Stat. 73 (codified at 42 U.S.C. § 3601 (2000)).
4. See infra notes 43-44 and accompanying text.
5. Civil Rights Act of 1866, ch. 31, 14 Stat. 27 (1866) (codified as amended at 18 U.S.C. § 242 (2006) and 42 U.S.C. §§ 1981-1982 (2000)).
6. U.S. CONST, amend. XIII.
7. Jones, 392 U.S. at 420-21
8. (quoting Jones v. Alfred H. Mayer Co., 379 F.2d 33, 43 (8th Cir. 1967)).
9. See, e.g., GARY S. BECKER, THE ECONOMICS OF DISCRIMINATION (2d ed. 1971);
10. Ian Ayres, Market Power and Inequality: A Competitive Conduct Standard for Assessing When Disparate Impacts Are Unjustified, 95 CAL. L. REV. 669 (2007);
11. John J. Donohue III, Is Title VII Efficient?, 134 U. PA. L. REV. 1411 (1986);
12. Richard A. Epstein, The Status-Production Sideshow: Why the Antidiscrimination Laws Are Still a Mistake, 108 HARV. L. REV. 1085 (1995);
13. Richard H. McAdams, Cooperation and Conflict: The Economics of Group Status Production and Race Discrimination, 108 HARV. L. REV. 1003 (1995);
14. Richard A. Posner, The Efficiency and the Efficacy of Title VII, 136 U. PA. L. REV. 513 (1987);
15. Daria Roithmayr, Barriers to Entry: A Market Lock-In Model of Discrimination, 86 VA. L. REV. 727, 730-31 (2000);
16. Robert E. Thomas & Bruce Louis Rich, Under the Radar: The Resistance of Promotion Biases to Market Economic Forces, 55 SYRACUSE L. REV. 301 (2005).
17. Among the exceptions is Professor Daria Roithmayr, who has written about housing segregation from the 1920s through the 1950s. See Daria Roithmayr, Locked in Segregation, 12 VA. J. SOC. POL'Y & L. 197, 214-39 (2004). Before that, one has to go back over half a century to find work on antitrust as antidiscrimination.
18. See Philip Marcus, Civil Rights and the Antitrust Laws, 18 U. CHI. L. REV. 171 (1951);
19. Note, Application of the Sherman Act to Housing Segregation, 63 YALE L.J. 1124 (1954).
20. Certainly, the Court's decision in Shelley v. Kraemer, 334 U.S. 1 (1948), seemed to foreshadow this reality. But Shelley, unlike Jones v. Alfred H. Mayer Co., still was tied to its state action formulae. Jones was the first case to directly state that it was private action alone that could have these nefarious effects.
21. See infra text accompanying notes 181-84.
22. See infra Part III.B.
23. 347 U.S. 483 (1954).
24. See infra Part II.B.
25. See Ayres, supra note 8, at 684.
26. See, e.g., Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 365, 374 (2001) (holding that the Americans with Disabilities Act as it applies to private suits for money damages against states is unconstitutional in part because it attempts to redefine the level of protection the Fourteenth Amendment affords to disabled persons); Kimel v. Bd. of Regents, 528 U.S. 62, 83-84 (2000) (holding that Congress cannot pass the Age Discrimination in Employment Act as it applies to private suits for money damages against states under its Fourteenth Amendment, Section 5 power);
27. City of Boerne v. Flores, 521 U.S. 507, 535-36 (1997) (holding that Congress does not have authority to pass the Religious Freedom Restoration Act under its Fourteenth Amendment, Section 5 power);
28. cf. United States v. Morrison, 529 U.S. 598, 619-20 (2000) (holding that Congress lacks the authority under both the Commerce Clause and the Fourteenth Amendment to pass the Violence Against Women Act). But see Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 735-37 (2003) (holding that Congress's Fourteenth Amendment, Section 5 power permits money damages against states under the Family and Medical Leave Act of 1993).
29. See Boy Scouts of Am. v. Dale, 530 U.S. 640, 660 (2000) (striking down application of New Jersey's antidiscrimination legislation as it applies to the Boy Scouts because it interferes with freedom of association);
30. cf. George Rutherglen, The Improbable History of Section 1981: Clio Still Bemused and Confused, 2003 SUP. CT. REV. 303, 342 (noting that "the very breadth of section 1981 assures that, at some point, it will come into collision with the right to freedom of association").
31. For arguments that Boy Scouts of America v. Dale questions the legitimacy of antidiscrimination legislation, see David E. Bernstein, Antidiscrimination Laws and the First Amendment, 66 MO. L. REV. 83, 139 (2001),
32. and Richard A. Epstein, The Constitutional Perils of Moderation: The Case of the Boy Scouts, 74 S. CAL. L. REV. 119 (2000). For a contrary view,
33. see Jed Rubenfeld, The AntiAntidiscrimination Agenda, 111 YALE L.J. 1141 (2002).
34. Cf. Kelo v. City of New London, 545 U.S. 469, 489-90 (2005) (holding that a city may condemn private property through eminent domain and transfer the property to private developers to further an urban redevelopment program). Citing the public outcry over Kelo v. City of New London, Jack Balkin and Sanford Levinson recognize that the core philosophy of Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1857) - "that governments may not destroy vested property rights of A's and give them to B - retains strong support in American culture."
35. Jack M. Balkin & Sanford Levinson, Thirteen Ways of Looking at Dred Scott, 82 CHI.-KENTL. REV. 49, 75-76 (2007).
36. The author is acutely aware that efforts to determine legislative intent with finality can be a mug's game. As Robert Kaczorowski has admonished, ''[t]he attempt to determine legislative intent is... a dubious project at best." Robert J. Kaczorowski, Revolutionary Constitutionalism in the Era of the Civil War and Reconstruction, 61 N.Y.U. L. REV. 863, 865 (1986). The most we can hope for are conclusions with "relative degrees of certainty."
37. Id. at 866.
38. The Court has said that the 1866 Act "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 Cases, 109 U.S. 3, 16 (1883). However, as this Article argues, members of the Reconstruction Congress had more than simply law-like custom on their minds.
39. The City of St. Louis and St. Louis County are different municipal entities. Unlike most cities, St. Louis is not contained within any county. See St. Louis City Government, http://stlouis.missouri.org/about/ government.html (last visited Nov. 19, 2008).
40. See Gerhard Casper, Jones v. Mayer: Clio, Bemused and Confused Muse, 1968 SUP. CT. REV. 89, 90-91.
41. Gerhard Casper notes that the state of de facto segregation in St. Louis at the time was approximately 90.5%, meaning that 90.5% of nonwhites who lived in St. Louis in 1960 would have to move from nonwhite areas to white areas in order to completely integrate the city. Id. at 90 n.5
42. (citing KARL E. TAEUBER & ALMA F. TAEUBER, NEGROES IN CITIES: RESIDENTIAL SEGREGATION AND NEIGHBORHOOD CHANGE 28-31 ( 1965)).
43. See 3 DAVID D. MARCH, THE HISTORY OF MISSOURI: FAMILY AND PERSONAL HISTORY 118 (1967).
44. A contemporary photograph of Alfred H. Mayer shows a slightly balding man with a high forehead, bright eyes, and thick, strong features. See id. at 116-17 (photo appears on unnumbered page between pages 116 and 117).
45. Id. at 118.
46. Id. According to David March, Mayer priced his homes in the $15,000 to $30,000 bracket. This corresponds to the median price of houses in the Midwest region around that time.
47. See U.S. Housing Market Conditions, Historical Data, Table 8A: New and Single Family Home Prices: 1963-Present, http://www.huduser.org/ periodicals/ushmc/fall97/histdat2.html (last visited Nov. 19, 2008).
48. See MARCH, supra note 24, at 118.
49. See Timothy Bleck, Pair "Just Wanted a House"; Issue Has Gone to High Court, ST. LOUIS POST- DISPATCH, Oct. 29, 1967, at 6A.
50. See Jones v. Alfred H. Mayer Co., 255 F. Supp. 115, 118 (E.D. Mo. 1966);
51. Bleck, supra note 29.
52. See Editorial, ST. LOUIS POST- DISPATCH, Dec. 10, 1967, at 1B.
53. See Bleck, supra note 29. Missouri was one of the states that still outlawed interracial marriages between blacks and whites, even after the Court struck down all antimiscegenation laws in Loving v. Virginia, 388 U.S. 1 (1967).
54. Compare Loving, 388 U.S. 1, with Mo. ANN. STAT. § 451.020 (West 1959) (amended by 1969 Mo. Laws 545 to strike down antimiscegenation language).
55. See Jones, 255 F. Supp. at 118;
56. see also Bleck, supra note 29.
57. Jones, 255 F. Supp. at 118;
58. see also Casper, supra note 22, at 91.
59. Jones, 255 F. Supp. at 118. The Joneses later told the newspaper that they had been followed through the model homes, "[l]ike [they] were going to take something."
60. Bleck, supra note 29 (internal quotation marks omitted). When the Joneses finally asked a salesman about a possible purchase, he answered, "We aren't selling houses to Negroes until the market opens up."
61. Id. (internal quotation marks omitted).
62. See Casper, supra note 22, at 91.
63. 42 U.S.C. § 2000a (2000).
64. Jones, 255 F. Supp. at 118. The Joneses also claimed violation of both Article VI of the Constitution and the Necessary and Proper Clause.
65. Id.
66. 42 U.S.C. § 1982.
67. See Jones, 255 F. Supp. at 119.
68. See Judges of the United States Courts, http://www.fjc.gov/ servlet/tGetInfo?jid=1986 (last visited Nov. 19, 2008).
69. The docket reveals that Mayer moved to dismiss the initial complaint on October 18, 1965. On November 5, the Joneses filed an amended complaint by leave of court, and Mayer moved to dismiss that amended complaint on December 6.
70. 109 U.S. 3 (1883). In the Civil Rights Cases, the Court considered the constitutionality of the Civil Rights Act of 1875 (1875 Act). The 1875 Act required "full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement" regardless of color, and provided for civil and criminal penalties for its violation. Act of March 1, 1875, ch. 114, § 1, 18 Stat. 335, 336, invalidated by The Civil Rights Cases, 109 U.S. 3. The U.S. Supreme Court, in an 8-1 opinion, held that the 1875 Act could not be supported by Congress's Fourteenth Amendment enforcement power, as the Fourteenth Amendment applied only to state action. The Civil Rights Cases, 109 U.S. at 23-25. Neither did the Act fall within Congress's Thirteenth Amendment enforcement power, as to hold that private discrimination in theaters and other places of public accommodation was among the "badges [or] incidents" of slavery would "[run] the slavery argument into the ground."
71. Id. at 20, 24. The Civil Rights Cases have never been overturned, and their "state action" requirement has been reaffirmed as recently as 2000.
72. See United States v. Morrison, 529 U.S. 598 (2000).
73. The Civil Rights Cases, 109 U.S. at 17-18. In 1965,
74. Katzenbach v. McClung, 379 U.S. 294 (1964),
75. and Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964), two cases upholding the public accommodation provisions of the Civil Rights Act of 1964 (1964 Act), were not even a year old. Both of these cases had held that the Commerce Clause-not the Fourteenth Amendment-authorized Congress to enact the 1964 Act. Further, neither of these cases, nor the 1964 Act, addressed the sale of real estate.
76. 326 U.S. 501 (1946).
77. Id. at 502.
78. Id. at 507-09.
79. Id. at 507.
80. 334 U.S. 1(1948).
81. Id. at 6.
82. J.D. Shelley's counsel, George Vaughn, was criticized by Thurgood Marshall, among others, for pursuing a Thirteenth Amendment strategy. See William B. Rubenstein, Divided We Litigate: Addressing Disputes Among Group Members and Lawyers in Civil Rights Campaigns, 106 YALE L.J. 1623, 1627, 1653 (1997). Recent scholarship, however, has rehabilitated Vaughn's maligned approach.
83. See Mark D. Rosen, Was Shelley v. Kraemer Incorrectly Decided? Some New Answers, 95 CAL. L. REV. 451 (2007) (arguing that Shelley is better understood as a Thirteenth Amendment rather than Fourteenth Amendment case).
84. Shelley, 334 U.S. at 23. Justices Stanley Forman Reed, Robert Jackson, and Wiley Rutledge took no part in Shelley v. Kraemer. They offered no reason, although some have assumed that it was because they owned property touched by racially restrictive covenants.
85. See Leland B. Ware, Invisible Walls: An Examination of the Legal Strategy of the Restrictive Covenant Cases, 67 WASH. U. L.Q. 737, 761 (1989).
86. 345 U.S. 461 (1953). Terry v. Adams and such cases as Nixcon v. Herndon, 273 U.S. 536 (1927),
87. and Smith v. Allwright, 321 U.S. 649 (1944), typically are referred to as the "white primary" cases.
88. See generally Michael J. Klarman, The White Primary Rulings: A Case Study in the Consequences of Supreme Court Decisionmaking, 29 FLA. ST. U. L. REV. 55 (2001).
89. Terry, 345 U.S. at 462-65.
90. Id. at 466-70.
91. Id. at 494 (Minton, J., dissenting).
92. 365 U.S. 715(1961).
93. Id. at 716.
94. Id. at 723-26.
95. Id. at 724.
96. Id. at 728 (Harlan, J., dissenting).
97. See Hamm v. Rock Hill, 379 U.S. 306, 307 (1964);
98. Bouie v. Columbia, 378 U.S. 347 (1964);
99. Bell v. Maryland, 378 U.S. 226 (1964);
100. Robinson v. Florida, 378 U.S. 153 (1964);
101. Barr v. Columbia, 378 U.S. 146 (1964);
102. Griffin v. Maryland, 378 U.S. 130 (1964);
103. Avent v. North Carolina, 373 U.S. 375 (1963);
104. Gober v. Birmingham, 373 U.S. 374 (1963);
105. Wright v. Georgia, 373 U.S. 284 (1963);
106. Lombard v. Louisiana, 373 U.S. 267 (1963);
107. Peterson v. Greenville, 373 U.S. 244, 247 (1963);
108. Garner v. Louisiana, 368 U.S. 157 (1961). For a general account of these cases,
109. see Brad Ervin, Note, Result or Reason: The Supreme Court and the Sit-in Cases, 93 VA. L. REV. 181 (2007). Brad Ervin notes that accounts of the Justices' conference reveal a Court majority prepared to extend state action doctrine incredibly far to avoid upholding the convictions.
110. See id. at 185 (citing Michael Klarman, An Interpretive History of Modern Equal Protection, 90 MICH. L. REV. 213, 272-73 (1991)).
111. See generally Ervin, supra note 62.
112. Peterson, 373 U.S. at 250 (Harlan, J., concurring in part and dissenting in part).
113. Charles L. Black, Jr., Foreword: "State Action, " Equal Protection, and California's Proposition 14, 81 HARV. L. REV. 69, 95 (1967);
114. see also ALFRED H. KELLY, WINFRED A. HARBISON & HERMAN BELZ, THE AMERICAN CONSTITUTION: ITS ORIGINS AND DEVELOPMENT 593-94 (7th ed. 1991)
115. [hereinafter AMERICAN CONSTITUTION] (tracking the development of the state action concept from its inception to the late 1990s).
116. Jones v. Alfred H. Mayer Co., 255 F. Supp. 115, 118 (E.D. Mo. 1966).
117. Id. at 118-19.
118. Id. 119.
119. Id. (emphasis added).
120. Id.
121. 334 U.S. 24 (1948).
122. Jones, 255 F. Supp. at 119.
123. See Hurd, 334 U.S. at 26.
124. Counsel included the formidable Charles Hamilton Houston. See id. at 25.
125. Id. at 28-29. Obviously, James Hurd had to rely on the Fifth Amendment, rather than the Fourteenth, as the latter amendment then applied to the states, not to the federal government. The Court eventually would apply the Fourteenth Amendment's Equal Protection guarantees back through the Fifth Amendment's Due Process Clause, but not until the 1954 case of Boiling v. Sharpe, 347 U.S. 497 (1954).
126. Hurd, 334 U.S. at 33-34.
127. Id. at 32.
128. Id. ("It is clear that in many significant respects the statute and the Amendment were expressions of the same general congressional policy.");
129. id. at 33 ("The close relationship between § 1 of the Civil Rights Act and the Fourteenth Amendment was given specific recognition by this Court in Buchanan v. Warley." (citing Buchanan v. Warley, 245 U.S. 60, 79 (1917))).
130. See generally Rosen, supra note 51.
131. Hurd, 334 U.S. at 31. Perhaps the Chief Justice hoped that, absent government enforcement, "defections" from purely voluntary discriminatory agreements would lead to their extinction.
132. Jones v. Alfred H. Mayer Co., 255 F. Supp. 115, 129 (E.D. Mo. 1966).
133. Id.
134. Id. at 124.
135. Id. at 129.
136. Id. at 124-25.
137. 378 U.S. 226 (1964).
138. Id. at 331 (Black, J., dissenting).
139. Jones, 255 F. Supp. at 126
140. (citing Bell, 378 U.S. at 331 (Black, J., dissenting)).
141. Id. at 130.
142. Jones v. Alfred H. Mayer Co., 379 F.2d 33 (8th Cir. 1967).
143. Id. at 34.
144. Id. at 37.
145. Id. at 38.
146. Id. at 39.
147. Id. at 39-40.
148. Id. at 43.
149. Id. at 44.
150. See id. at 43-44.
151. See supra notes 45-48.
152. Jones, 379 F.2d at 44.
153. Id. (emphasis added).
154. See id.
155. Id. (citing Mulkey v. Reitman, 413 P.2d 825, 834 (CaI. 1966),
156. aff'd, 387 U.S. 369 (1967) (finding that a state constitutional amendment designed to repeal a California fair housing law was discriminatory "state action" and a violation of the Fourteenth Amendment to the U.S. Constitution)).
157. Id. at 40.
158. Id. at 43.
159. Id. (citing United States v. Morris, 125 F. 322 (E.D. Ark. 1903)).
160. Id.
161. Id. at 45 ("The matter... is one of policy, to be implemented in the customary manner by appropriate statutes directed to the need. If we are wrong in this conclusion, the Supreme Court will tell us so... and limit those... prior decisions... which we feel are restrictive upon us.").
162. Id. at 44-45.
163. See LINDA GREENHOUSE, BECOMING JUSTICE BLACKMUN: HARRY BLACKMUN'S SUPREME COURT JOURNEY 30 (2005).
164. Id. (quoting statements of Justice Harry Blackmun to M.C. Matthes and Gerald W. Heaney) (internal quotation marks omitted).
165. On the Court at that time were Chief Justice Earl Warren, and Associate Justices Hugo L. Black, William O. Douglas, John Marshall Harlan II, William J. Brennan, Potter Stewart, Byron R. White, Abe Fortas, and Thurgood Marshall. Among those parties urging review were the U.S. Department of Justice and the National Committee Against Discrimination in Housing. James C. Millstone, Housing Bias Case Accepted by High Court, ST. LOUIS POST-DISPATCH, Dec. 4, 1967, at 1A.
166. Editorial, Waiting for Leadership, ST. LOUIS POST-DISPATCH, Dec. 5, 1967, at 2B.
167. Id. To emphasize the point, the editorial included a cartoon depicting craven local officials hiding behind the skirts of a Supreme Court Justice's robe.
168. See id.
169. Id.
170. Id.
171. Id.
172. James W. Singer, Lawyers in Landmark Suit, ST. LOUIS POST-DISPATCH, Feb. 11, 1968, at 2G. The elder Samuel H. Liberman himself had argued a Supreme Court case dealing with municipal income tax while working for the city.
173. See Walters v. City of St. Louis, 347 U.S. 231 (1954).
174. 2 WALTER EHRLICH, ZION IN THE VALLEY: THE JEWISH COMMUNITY OF ST. LOUIS: THE TWENTIETH CENTURY 90 (2002).
175. Singer, supra note 118.
176. Id.
177. Id.
178. Id. (internal quotation marks omitted). In fact, Treiman's representation of Mayer was doubly ironic. Treiman had fled his native Russia as a child to escape a pogrom and had spent his boyhood "prepared [to] fight" with an Irish gang whenever he left the environs of St. Louis's Jewish Ghetto.
179. See EHRLICH, supra note 119, at 90 (quoting Interview with Israel Treiman (Sept. 8, 1982)) (internal quotation marks omitted).
180. See Brief of Petitioners at 13, Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968) (No. 645),
181. reprinted in 67 LANDMARK BRIEFS AND ARGUMENTS OF THE SUPREME COURT OF THE UNITED STATES: CONSTITUTIONAL LAW 57, 69 (Philip B. Kurland & Gerhard Casper eds., 1975)
182. [hereinafter LANDMARK BRIEFS].
183. Id.
184. Id. at 14,
185. reprinted in LANDMARK BRIEFS, supra note 124, at 70.
186. Id. at 15,
187. reprinted in LANDMARK BRIEFS, supra note 124, at 71.
188. Brief for the United States as Amicus Curiae at 60, Jones, 392 U.S. 409 (No. 645),
189. reprinted in LANDMARK BRIEFS, supra note 124, at 200, 259.
190. Id.
191. See Brief for the Respondents at 2, Jones, 392 U.S. 409 (No. 645),
192. reprinted in LANDMARK BRIEFS, supra note 124, at 118,119.
193. Id. at 3,
194. reprintedin LANDMARK BRIEFS, supra note 124, at 120.
195. Id. at 37,
196. reprinted in LANDMARK BRIEFS, supra note 124, at 154.
197. Id. at 4,
198. reprinted in LANDMARK BRIEFS, supra note 124, at 121. To support his judicial modesty argument, Mayer quoted Abraham Lincoln's First Inaugural Address: [T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.
199. Id. at 5-6
200. , reprinted in LANDMARK BRIEFS, supra note 124, at 122-23 (emphasis omitted) (quoting Abraham Lincoln, First Inaugural Address (May 4, 1861)) (internal quotation marks omitted).
201. Transcript of Oral Argument, Jones, 392 U.S. 409 (No. 645),
202. as reprinted in LANDMARK BRIEFS, supra note 124, at 621, 623.
203. Id. at 626.
204. Jones, 392 U.S. at 413.
205. This qualification is a product of the history of the deliberation. In conference, Chief Justice Warren had urged the other Court members to reverse on the ground of Marsh. To him, a real estate development like Paddock Woods sufficiently emulated a municipality to be a "state actor." All of the Justices agreed with Chief Justice Warren. But Justice Stewart, apparently at the urging of his clerk, Laurence Tribe, pushed the Court to use the broader construction of the 1866 Act to overturn the decision; Stewart persuaded six of his colleagues, but lost Justices Harlan and White in the process.
206. See BERNARD SCHWARTZ, SUPER CHIEF: EARL WARREN AND HIS SUPREME COURT: A JUDICIAL BIOGRAPHY 702-03 (1983);
207. see also MICHAL R. BELKNAP, THE SUPREME COURT UNDER EARL WARREN, 1953-1969, at 175 (2005).
208. Jones, 392 U.S. at 413-14. Doubtlessly, the majority's hedge was in reaction to Justice Harlan's dissent, which viewed the entire exercise of interpreting both § 1982 and the Thirteenth Amendment as improvident given Congress's passage of the Civil Rights Act of 1968 and its open housing provisions.
209. See infra notes 159-68 and accompanying text.
210. See Jones, 392 U.S. at 413-14.
211. See id. at 419-20.
212. Id. at 419.
213. Id. at 420
214. (quoting 42 U.S.C. § 1982 (2000)).
215. Id. at 421 (quoting Jones v. Alfred H. Mayer Co., 379 F.2d 33, 43 (8th Cir. 1967)) (internal quotation marks omitted).
216. Id. at 422.
217. Id. at 426.
218. Id. at 427;
219. see also id. at 428-29 (citing CONG. GLOBE, 39th Cong., 1st Sess. 2, 17-25, 95, 1833, 1835 (1866)).
220. Id. at 437.
221. Id.
222. U.S. CONST, amend. XIII.
223. Jones, 392 U.S. at 438 (quoting The Civil Rights Cases, 109 U.S. 3, 20 (1883)) (internal quotation marks omitted).
224. The scope of Section 1 was not "a question... involved in this case." Id. at 439.
225. Id. at 438
226. (quoting The Civil Rights Cases, 109 U.S. at 23).
227. Id.
228. (quoting The Civil Rights Cases, 109 U.S. at 20).
229. Id. at 440-41.
230. Id. at 442-43. Finally, lest there be any doubt, the Court overruled its opinion in Hodges v. United States, 203 U.S. 1 (1906), a case involving private terror aimed at blacks who had sought work at a sawmill. The Hodges Court had concluded that "mere personal assault or trespass or appropriation" could not reduce a person to the condition of slavery.
231. Jones, 392 U.S. at 441 n.78
232. (quoting Hodges, 203 U.S. at 18) (internal quotation marks omitted). Only conduct that actually enslaved a person could be proscribed by congressional Thirteenth Amendment power.
233. Id. The Court overruled Hodges to the extent that Hodges conflicted with the Jones opinion. Id.
234. Jones, 392 U.S. at 445 (Douglas, J., concurring).
235. Id.
236. Id. at 447
237. (quoting Frederick Douglass, The Color Line, 132 N. AM. REV. 567, 568 (1881), in 4 THE LIFE AND WRITINGS OF FREDERICK DOUGLASS: RECONSTRUCTION AND AFTER 342,344 (Philip S. Foner ed., 1955)).
238. Id. at 449 (Harlan, J., dissenting).
239. Pub. L. No. 90-284, 82 Stat. 73 (codified as amended in scattered sections of 18 and 25 U.S.C).
240. Jones, 392 U.S. at 477-78 (Harlan, J., dissenting).
241. Id. at 479.
242. Id. at 480.
243. Justice Harlan included this argument in his dissent, notwithstanding his admonition that such constitutional digressions were unwise.
244. Jones, 392 U.S. at 453-54 (alterations in original)
245. (quoting Civil Rights Act of 1866, ch. 31, § 1, 14 Stat. 27, 27 (codified as amended at 42 U.S.C. §§ 1981-1982 (2000))) (internal quotation marks omitted).
246. Id. at 454 (quoting § 2, 14 Stat, at 27 (codified as amended at 18 U.S.C. § 242 (2006))) (internal quotation marks omitted).
247. Id. at 453.
248. Id. at 454. Justice Harlan's concession that some private behavior may be covered by the Act, when so prevalent as to become "custom," is an important recognition of the effects of collective, but nonlegal, private behavior. Barry Sullivan has explained Justice Harlan's concession as "not grounded in the legislative materials, but rather in Justice Harlan's intellectual need to reconcile Congress'[s] clear intention to reach some private action with his general 'state action' approach to the statute."
249. Barry Sullivan, Historical Reconstruction, Reconstruction History, and the Proper Scope of Section 1981, 98 YALE L.J. 541, 558-59 (1989) (footnote omitted).
250. Jones, 392 U.S. at 458-59. For example, Justice Harlan pointed to Senator Trumbull's remarks in January of 1866, to the effect that the Act will have no operation in any State where the laws are equal, where all persons have the same civil rights without regard to color or race. It will have no operation in the State of Kentucky when her slave code and all her laws discriminating between persons on account of race or color shall be abolished.
251. Id. at 459 (emphasis omitted)
252. (quoting CONG. GLOBE, 39th Cong., 1st Sess. 476 (1866)) (internal quotation marks omitted).
253. Id. at 465 (emphasis omitted)
254. (quoting CONG. GLOBE, 39th Cong., 1st Sess. 1118 (1866)).
255. Id. at 467
256. (quoting CONG. GLOBE, 39th Cong., 1st Sess. 1293 (1866)) (internal quotation marks omitted).
257. See id. at 470-71.
258. Id.
259. Thomas W. Ottenad, Court Bars Race Bias in Home Sale, Rental in Ruling on St. Louis Case, ST. LOUIS POST-DISPATCH, June 17, 1968, at IA.
260. See Demolition Project, ST. LOUIS POST-DISPATCH, June 18,1968, at 2B.
261. Editorial, Wherever a Man Can Live, ST. LOUIS POST-DISPATCH, June 18, 1968, at 2B.
262. Arthur Kinoy, Jones v. Alfred H. Mayer Co.: An Historic Step Forward, 22 VAND. L. REV. 475, 477 (1969).
263. Robert L. Kohl, The Civil Rights Act of 1866, Its Hour Come Round at Last: Jones v. Alfred H. Mayer Co., 55 VA. L. REV. 272, 272, 300 (1969).
264. See Casper, supra note 22, at 132.
265. Id. For modern criticism of the Jones decision,
266. see David P. Currie, The Civil War Congress, 73 U. CHI. L. REV. 1131 (2006). While generally supportive of the importance of the Thirteenth Amendment, Professor Currie suggests that the Jones Court was wrong to conclude that the Thirteenth Amendment authorizes congressional legislation aimed at "ordinary racial discrimination."
267. Id. at 1177.
268. Sam J. Ervin, Jr., Jones v. Alfred H. Mayer Co.: Judicial Activism Run Riot, 22 VAND. L. REV. 485,485 (1969).
269. Id. .at 502.
270. Louis Henkin, Foreword: On Drawing Lines, 82 HARV. L. REV. 63, 86 (1968).
271. Id. at 86;
272. see also 6 CHARLES FAIRMAN, HISTORY OF THE SUPREME COURT OF THE UNITED STATES: RECONSTRUCTION AND REUNION 1864-88, PART ONE, at 1258 (Paul A. Freund ed., 1971) ("In Jones v. Mayer the Court appears to have had no feeling for the truth of history, but only to have read it through the glass of the Court's own purpose. It allowed itself to believe impossible things-as though the dawning enlightenment of 1968 could be ascribed to the Congress of a century agone." (footnote omitted)).
273. See infra Part III.
274. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 420-21 (1968)
275. (quoting Jones v. Alfred H. Mayer Co., 379 F.2d 33, 43 (8th Cir. 1967)).
276. Louis L. Jaffe, Law Making by Private Groups, 51 HARV. L. REV. 201, 217 (1937),
277. reprinted in AMERICAN LEGAL REALISM 115, 118 (William W. Fisher, Morton J. Horwitz & Thomas A. Reed eds., 1993).
278. See generally Robert L. Hale, Coercion and Distribution in a Supposedly Non-Coercive State, 38 POL. SCI. Q. 470 (1923),
279. reprinted in AMERICAN LEGAL REALISM, supra note 187, at 101.
280. In saying this, this Article does not adhere to the argument that the public/private distinction should carry no weight whatsoever. As Mark Rosen has pointed out, as a descriptive matter, the distinction persists, notwithstanding arguments for its dissolution. Further, as a political matter, the distinction helps corral an otherwise incomprehensible collection of forces into manageable categories. See Rosen, supra note 51, at 471-73.
281. See, e.g., Robert Cooter, Market Affirmative Action, 31 SAN DIEGO L. REV. 133, 153-56 (1994);
282. Roithmayr, supra note 8, at 754-55;
283. Thomas & Rich, supra note 8, at 309-10. This Article adopts the looser notion of cartel expressed by Roithmayr and others. It does not suggest that racial discrimination must meet all of the formal requirements of a cartel as a term of art in antitrust doctrine.
284. McAdams, supra note 8, at 1070-71;
285. see also Cooter, supra note 190, at 153.
286. Cooter, supra note 190, at 153.
287. In the absence of criminal sanction, whites were induced to comply by threat of extralegal violence against "race traitors." See Epstein, supra note 8, at 1100. Richard Epstein argues against Richard McAdams's theory that status production alone can sustain race-based cartels.
288. See generally id. The author's intent is not to engage in that debate, but to argue that, as a matter of statutory interpretation, congressional debate over Reconstruction legislation reveals pointed concern with private cartel-like behavior among whites.
289. Id. at 1085-88.
290. See McAdams, supra note 8, at 1045-47. This group status production behavior also may help explain why socially ambitious racial and ethnic groups have discriminated against African Americans in America, even when those groups have themselves been subject to discrimination by others.
291. See id. at 1055-56.
292. Id. at 1070.
293. Roithmayr, supra note 8, at 729-30.
294. Id. at 775.
295. Id. at 775-7'6.
296. Ayres, supra note 8, at 679.
297. A couple of notable exceptions to this include G. Sidney Buchanan, who remarked that the Jones decision's significance "lies in its recognition of the direct the between private racial discrimination and economic disability." G. SIDNEY BUCHANAN, THE QUEST FOR FREEDOM: A LEGAL HISTORY OF THE THIRTEENTH AMENDMENT 138 (1976). Also important is David E. Bernstein's work on post-Civil War restrictions on African American travel.
298. See generally David E. Bernstein, The Law and Economics of Post-Civil War Restrictions on Interstate Migration by African-Americans, 76 TEX. L. REV. 781 (1998). Bernstein ultimately concludes, along with Richard Epstein, that whites turned to law and private violence because, "[a]s economic theory would predict, white planters were unable to form a successful voluntary cartel to stifle the free labor market."
299. Id. at 784. Again, this Article's aim is not to debate the wisdom of the Civil Rights Acts, but to argue that they had a cartelbusting purpose, irrespective of necessity.
300. ERIC FONER, RECONSTRUCTION: AMERICA'S UNFINISHED REVOLUTION: 1863-1877, at 199 (Perennial Classics 2002) (1988).
301. Id.
302. Id. at 200.
303. Compare, e.g., Eugene Gressman, The Unhappy History of Civil Rights Legislation, 50 MICH. L. REV. 1323, 1325 (1952) (arguing that the Black Codes had effectively returned African Americans to the condition of slavery), with Sullivan, supra note 168, at 551-52 (stating that the Union Army and Freedmen's Bureau effectively suppressed the Black Codes).
304. See FONER, supra note 202, at 200.
305. See CONG. GLOBE, 39th Cong., 1st Sess. 588-89 (1866) (citing the various Black Laws of Southern states).
306. Id. at 1151;
307. see also Jones v. Alfred H. Mayer, Co., 392 U.S. 409, 433-34 (1968).
308. THE RECONSTRUCTION AMENDMENTS' DEBATES 140 (Alfred Avins ed., 1967).
309. CONG. GLOBE, 39th Cong., 1st Sess. 1833 (1866);
310. see also Robert J. Kaczorowski, The Enforcement Provisions of the Civil Rights Act of 1866: A Legislative History in Light o/Runyon v. McCrary, 98 YALE L.J. 565, 572 (1989).
311. CONG. GLOBE, 39th Cong., 1st Sess. 1833 (1866);
312. see also Kaczorowski, supra note 210, at 572.
313. The Thirteenth Amendment coverage of state inaction has been a feature of several scholars' legal arguments. See, e.g., Akhil Reed Amar & Daniel Widawsky, Child Abuse as Slavery: A Thirteenth Amendment Response to DeShaney, 105 HARV. L. REV. 1359, 1381 (1992) ("[T]he absence of a state action requirement in the Thirteenth Amendment means not only that certain private action is banned, but also that certain state inaction is prohibited.");
314. see also William M. Carter, Jr., Race, Rights and the Thirteenth Amendment: Defining the Badges and Incidents of Slavery, 40 U.C. DAVIS L. REV. 1311, 1323-24 n.32 (2007) (opining that "the Thirteenth Amendment creates plenary power for the federal government to override state action or remedy state inaction that results in violations of the rights of national citizenship").
315. CONG. GLOBE, 38th Cong., 1st Sess. 1202 (1864).
316. CONG. GLOBE, 39th Cong., 1st Sess. 1833 (1866) (emphasis added).
317. Id. Rep. William Lawrence's discussion of "naturalized" versus "native-born" citizens reflects a simmering debate in Congress over whether African Americans born as slaves in the United States could automatically claim to be citizens once emancipated, or whether that citizenship required a second affirmative step by Congress through the Civil Rights Act, or through the Fourteenth Amendment.
318. Id. (citation omitted) (internal quotation marks omitted).
319. Carl Schurz, commissioned by the U.S. government to investigate the progress of Reconstruction, commented in his report on Southerners' behavior, A belief, conviction, or prejudice, or whatever you may call it, so widely spread and apparently so deeply rooted as this, that the negro will not work without physical compulsion, is certainly calculated to have a very serious influence upon the conduct of the people entertaining it. It naturally produced a desire to preserve slavery in its original form as much and as long as possible .... [T]he main agency employed for that purpose was force and intimidation. In many instances negroes who walked away from the plantations, or were found upon the roads, were shot or otherwise severely punished, which was calculated to produce the impression among those remaining with their masters that an attempt to escape from slavery would result in certain destruction. CARL SCHURZ, REPORT ON THE CONDITION OF THE SOUTH, S. EXEC. DOC. NO. 39-2 (1865),
320. reprinted in 1 CARL SCHURZ, SPEECHES, CORRESPONDENCE AND POLITICAL PAPERS OF CARL SCHURZ 279, 311 (Frederic Bancroft ed., 1913).
321. See, e.g., Andrew E. Taslitz, Hate Crimes, Free Speech, and the Contract of Mutual Indifference, 80 B.U. L. REV. 1283, 1386 (2000) (noting that the Klan "intimidated, whipped, and beat blacks into signing onerous labor contracts," and that this violence increased from 1866 through the 1870s);
322. see also BULLWHJP DAYS: THE SLAVES REMEMBER 398 (James Mellon ed., 1988)
323. [hereinafter BULLWHIP DAYS] (relating statements of Parilee Daniels, a former slave who recounted that "[i]f we left our white people and tried to get work, the KKKs said no");
324. cf. Jack M. Beermann, The Unhappy History of Civil Rights Legislation, Fifty Years Later, 34 CONN. L. REV. 981, 984 (2002) (noting rise of the Klan as motivation for passage of the Fourteenth Amendment).
325. SCHURZ, supra note 217, at 317. Schurz went on to state, Although it is admitted that [the freedman] has ceased to be the property of a master, it is not admitted that he has a right to become his own master. As Colonel Thomas, assistant-commissioner of the Freedmen's Bureau in Mississippi, in a letter addressed to me, very pungently expresses it: The whites esteem the blacks their property by natural right, and, however much they may admit that the relations of masters and slaves have been destroyed by the war and by the President's emancipation proclamation, they still have an ingrained feeling that the blacks at large belong to the whites at large, and whenever opportunity serves, they treat the colored people just as their profit, caprice or passion may dictate.
326. Id. at 320 (quoting Letter from Colonel Samuel Thomas, Assistant Comm'r, Freedmen's Bureau, State of Miss.).
327. See infra text accompanying notes 224-25.
328. BULL WHIP DAYS, supra note 218, at 398.
329. Id.
330. LEON F. LITWACK, BEEN IN THE STORM SO LONG: THE AFTERMATH OF SLAVERY 415 (1980) (emphasis added)
331. (quoting J.T. TROWBRIDGE, THE SOUTH: A TOUR OF ITS BATTLE-FIELDS AND RUINED CITIES (Arno Press 1969) (1866)).
332. See id. at 415-16. For example, in addition to setting maximum wages and conspiring to draft model labor contracts, planters agreed not to hire other planters' workers and agreed not to lease or sell property to freedmen.
333. Id. In one South Carolina community, doctors would not treat freedmen without the consent of the planter.
334. Id. at 415.
335. See e.g., U.S. DEP'T OF JUSTICE & FED. TRADE COMM'N, ANTITRUST GUIDELINES FOR COLLABORATIONS AMONG COMPETITORS § 3.2 (2000) (identifying price or output fixing, bid rigging, and market division agreements as per se violations of antitrust law),
336. reprinted in CHARLES J. GOETZ & FRED S. MCCHESNEY, ANTITRUST LAW: INTERPRETATION AND IMPLEMENTATION, app. C-6 (2d ed. 2002).
337. See generally PHILLIP E. AREEDA & HERBERT HOVENKAMP, FUNDAMENTALS OF ANTITRUST LAW §§ 17, 19 (3d ed. 2004) (describing tying agreements and horizontal restraints of trade). Cf. id. § 19.03a (noting that "[h]orizonal agreements are antitrust's most 'suspect' classification" ).
338. See LITWACK, supra note 223, at 415-16 (noting that, even where the local Freedmen's Bureau broke up a combination, "planters kept themselves informed of what their neighbors were paying [for labor] and paid no more").
339. CONG. GLOBE, 39th Cong., 1st Sess. 1160 (1866) (statement of Rep. Windom) (emphasis added) (quoting Letter from Colonel DeGauss to Oliver O. Howard, Major Gen., Freedmen's Bureau (Dec. 15, 1865)) (internal quotation marks omitted).
340. Id. A complement to these informal arrangements was the pernicious effect of socalled "enticement laws," which made whites criminally or civilly liable for "enticing" away black servants through financial inducements. As William Cohen has written, "[m]ore than any other form of legislation, the enticement acts embodied the essence of the system of involuntary servitude. They re-created in modified form the proprietary relationship that had existed between master and slave."
341. William Cohen, Negro Involuntary Servitude in the South, 1865-1940: A Preliminary Analysis, in AMERICAN LAW AND THE CONSTITUTIONAL ORDER: HISTORICAL PERSPECTIVES 319 (Lawrence M. Friedman & Harry N. Scheiber eds., 1978).
342. CONG. GLOBE, 39th Cong., 1st Sess. 589 (1866).
343. It should be remembered, after all, that the Thirteenth Amendment's text preserves involuntary servitude "as a punishment for crime." U.S. CONST, amend. XIII, § 1.
344. These laws "made no reference to race, to avoid the appearance of discrimination . . . . But it was well understood . . . that 'the vagrant contemplated was the plantation negro."' FONER, supra note 202, at 201
345. (quoting Alabama planter and Democratic "politico" John W. DuBois). Eric Foner also notes that, even though most Southern states had repealed the codes applying only to blacks, "Southern courts continued to enforce vagrancy, breach of contract, and apprenticeship statutes that made no direct reference to race."
346. Id. at 209.
347. SCHURZ, supra note 217, at 325 (third emphasis added). Moreover, local law essentially deputized every white citizen with the ability to enforce these restrictions. As Schurz described it, [T]he summary enforcement of the penalties ... place the freedmen under a sort of permanent martial law, while the provision investing every white man with the power and authority of a police officer as against every black man subjects them to the control even of those individuals who in other communities are thought hardly fit to control themselves. On the whole, this piece of legislation is a striking embodiment of the idea that although the former owner has lost his individual right of property in the former slave, the blacks at large belong to the whites at large.
348. Id. at 326 (internal quotation marks omitted). In this sense, the immediate postemancipation period changed little from the former slave period, which forced whites to treat all blacks as presumptive slaves.
349. See Stringfield v. State, 25 Ga. 474 (1858), in which an individual was found guilty of a misdemeanor for trading with a slave, even though it was never established that the defendant knew that the black man was in fact a slave. In the words of the court, "In this State every negro is presumed to be a slave and to have an owner, and proof of his color is sufficient prima facie evidence of his being a slave and supports that allegation."
350. Id. at 476.
351. See also Mandeville v. Cookenderfer, 16 F. Cas. 580 (C.C.D.C 1827) (No. 9009), in which a coach operator allowed an African American onto a coach out of the D.C. area. Chief Judge William Cranch stated in his opinion, Every negro is, by a rule of evidence well established in this part of the country, prima facie to be considered as a slave, and the property of somebody; and he, who acts in regard to him as if he were a free man, acts at his peril, and the burden of proof is upon him, to show that the negro is not a slave, or, at least, to show such circumstances as will rebut the presumption arising from color.
352. Id. at 582.
353. SCHURZ, supra note 217, at 327
354. (quoting Letter from Samuel Thomas, supra note 219).
355. Id. (quoting Letter from Samuel Thomas, supra note 219).
356. Id.
357. CONG. GLOBE, 39th Cong., 1st Sess. 1124(1866),
358. reprintedin THE RECONSTRUCTION AMENDMENTS' DEBATES, supra note 209, at 168. Representative Burton Chauncey Cook complained that "[a]ny combination of men in his neighborhood can prevent [the freedman] from having any chance to support himself by his labor. They can pass a law that a man not supporting himself by labor shall be deemed a vagrant, and that a vagrant shall be sold." CONG. GLOBE, 39th Cong., 1st Sess. 1124 (1866);
359. see also Brief for the United States as Amicus Curiae, supra note 128, at 60,
360. reprinted in LANDMARK BRIEFS, supra note 124, at 259.
361. See, e.g., CONG. GLOBE, 39th Cong., 1st Sess. 474 (1866) (remarks of Sen. Trumbull) (stating that all discriminatory statutes are "null and void" upon passage of the Thirteenth Amendment).
362. Section 2 of the bill stated specifically, [t]hat 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. Civil Rights Act of 1866, ch. 31, § 2, 14 Stat. 27, 27 (codified as amended at 18 U.S.C. § 242 (2006)).
363. Section 6 of that Act imposed liability on those who "hav[e] power to prevent or aid in preventing [any conspiracy designed to interfere with civil rights and] shall neglect or refuse to do so." Ku Klux Klan Act of 1871, ch. 22, § 6, 17 Stat. 13, 15 (codified at 42 U.S.C. §§ 1983, 1986 (2000)).
364. § 1, 14 Stat, at 27 (codified as amended at 42 U.S.C. §§ 1981-1982 (2000)).
365. Cf. Jonathan D. Martin, Note, Historians at the Gate: Accommodating Expert Historical Testimony in Federal Courts, 78 N.Y.U. L. REV. 1518, 1529-30 & nn.68-69 (2003) (noting the discrepancy between historians filing amicus briefs arguing that "custom" clearly applied to private action and those providing a more nuanced treatment of the term).
366. Sullivan, supra note 168, at 558.
367. FONER, supra note 202, at 139 (citation omitted) (internal quotation marks omitted).
368. CONG. GLOBE, 39th Cong., 1st Sess. 1268 (1866), reprinted in THE RECONSTRUCTION AMENDMENTS' DEBATES, supra note 209, at 180;
369. see also Beatty v. Gregory, 17 Iowa 109 (1864) (examining the general versus private custom in mining to determine mining rights).
370. See Washington v. Glucksberg, 521 U.S. 702, 712 (1997) (calling Blackstone a primary legal authority for nineteenth-century lawyers);
371. Dennis R. Nolan, Sir William Blackstone and the New American Republic: A Study of Intellectual Impact, 51 N.Y.U. L. REV. 731, 767 (1976);
372. George Rutherglen, Custom and Usage as Action Under Color of State Law: An Essay on the Forgotten Terms of Section 1983, 89 VA. L. REV. 925, 930 (2003) (noting that Blackstone's "account of custom as a source of law was taken to be standard, both in England and in this country").
373. See generally Andrea C. Loux, The Persistence of the Ancient Regime: Custom, Utility, and the Common Law in the Nineteenth Century, 79 CORNELL L. REV. 183 (1993).
374. See Clark v. Le Cren, (1829) 109 Eng. Rep. 20, 22 (K.B.) (noting that the customs of certain workers can support a permissible restraint of trade); Rutherglen, supra note 245, at 933 (noting that one of Blackstone's categories of customs was "particular customs that persist in various localities or trades");
375. Katherine V.W. Stone, Knowledge at Work: Disputes over the Ownership of Human Capital in the Changing Workplace, 34 CONN. L. REV. 721, 760 (2002) ("In the guild system, some of the obligations of both master and apprentice were provided by a contract, termed an indenture, but most were based on custom.").
376. According to Judge Richard A. Posner, a guild is a type of cartel that is joined together by social and ideological ties. See Richard A. Posner, The Material Basis of Jurisprudence, 69 IND. L.J. 1, 11 (1993).
377. McAdams identifies the white cartels of the South as bound by ties of white supremacism. See McAdams, supra note 8, at 1070.
378. See Clark, 109 Eng. Rep. at 22;
379. Christopher T. Wonnell, The Contractual Disempowerment of Employees, 46 STAN. L. REV. 87, 120 (1993) ("British guilds used this [apprenticeship] custom to limit entry into occupations.").
380. Sullivan, supra note 168, at 556.
381. Id. at 558.
382. Rutherglen, supra note 17, at 333.
383. Id.
384. As Aviam Soifer argues, "The legal situation in the South at the end of the Civil War was a chaotic blend of old and quickly emerging doctrines in the 'private law' realms of property and contract law." Aviam Soifer, Status, Contract, and Promises Unkept, 96 YALE L.J. 1916, 1941 (1987). This sentiment is shared by a number of scholars.
385. See, e.g., Martin S. Sheffer, Did the Framers Intend Their Intentions?: Civil Rights, The Fourteenth Amendment, and the Election Campaign of 1866, 12 CAP. U. L. REV. 45, 69 (1982) ("One must remember that nineteenth-century liberals defined freedom as the absence of institutional restraints. . . . The problem for the Radical Republicans . . . stems from the fact that they were not acting as nineteenth-century liberals. Their approach to the issue of civil rights and the use of governmental machines was closer to methods adopted by the New Deal Democrats. . ..");
386. see also Morton J. Horwitz, The History of the Public/Private Distinction, 130 U. PA. L. REV. 1423, 1428 (1982).
387. See, e.g., CONG. GLOBE, 39th Cong., 1st Sess, 598 (1866) ("If [section 1 of the 1866 Act] is not centralizing with a vengeance and by wholesale, I do not know what is.");
388. see also FONER, supra note 202, at 242 ("The [moderate Republican's] dilemma was that most of the rights they sought to guarantee for blacks had always been state concerns. Federal action to secure these rights raised the specter of an undue 'centralization' of power.");
389. Sheffer, supra note 254, at 46.
390. For example, see the remarks of Delaware Senator Willard Saulsbury, Sr., who regarded the bill as "an insane effort to elevate the African race to the dignity of the white race." CONG. GLOBE, 39th Cong., 1st Sess. 42 (1865).
391. CONG. GLOBE, 39th Cong., 1st Sess. 1823 (1866).
392. President Andrew Johnson, Veto of the Civil Rights Act (Mar. 27, 1866), reprinted in PRESIDENTIAL DOCUMENTS: THE SPEECHES, PROCLAMATIONS, AND POLICIES THAT HAVE SHAPED THE NATION FROM WASHINGTON TO CLINTON 146, 149 (J.F. Watts & Fred L. Israel eds., 2000) (emphasis added).
393. President Andrew Johnson, Veto of Freedman's Bureau Bill (Feb. 19, 1866),
394. reprinted in CIVIL RIGHTS AND AFRICAN AMERICANS 214, 216-17 (Albert P. Blaustein & Robert L. Zangrando eds., Northwestern Univ. Press 1991) (1968);
395. see also Lea S. VanderVelde, The Labor Vision of the Thirteenth Amendment, 138 U. PA. L. REV. 437, 484-85 (1989) (explaining this quote in the context of Congress's goal of achieving free labor).
396. CONG. GLOBE, 39th Cong., 1st Sess. app. at 156 (1866);
397. see also VanderVelde, supra note 259, at 485-86.
398. The Worst Enemies of the South, N.Y. TIMES, Apr. 12, 1866, at 4.
399. The Freedmen s Celebration, N.Y. TIMES, Apr. 20,1866, at 1.
400. The Compromise of 1877 settled the disputed presidential election of 1876. In the traditional interpretation of the compromise, Congress agreed to end Reconstruction in exchange for selection of Rutherford B. Hayes as President. See, e.g., AMERICAN CONSTITUTION, supra note 65, at 351-52.
401. See MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870-1960: THE CRISIS OF LEGAL ORTHODOXY 80 (1992).
402. DONALD DEWEY, THE ANTITRUST EXPERIMENT IN AMERICA 4 (1990).
403. At least initially, Congress's antitrust effort "reflected the still widely shared orthodox laissez-faire position that industrial concentration was an unnatural interference with the law of free competition and could be achieved only through conspiracy or illicit financial manipulation." HORWITZ, supra note 264, at 80-81. Only later did some economists begin to persuade policy makers that anticompetitive consolidation could occur because of, rather than despite, classical laissez-faire economics.
404. See Horwitz, supra note 254, at 1428 ("Private power began to become increasingly indistinguishable from public power precisely at the moment, late in the nineteenth century, when large-scale corporate concentration became the norm. The attack on the public/private distinction was the result of a widespread perception that so-called private institutions were acquiring coercive power that had formerly been reserved to governments.").
405. James May, Antitrust in the Formative Era: Political and Economic Theory in Constitutional and Antitrust Analysis, 1880-1918, 50 OHIO ST. L.J. 257, 288 (1989).
406. Id. at 289 (footnote omitted).
407. Id. at 288 n.271.
408. See David Achtenberg, Immunity Under 42 U.S.C. § 1983: Interpretive Approach and the Search for the Legislative Will, 86 Nw. U. L. REV. 497, 547 n.360 (1992).
409. See Einer Richard Elhauge, The Scope of Antitrust Process, 104 HARV. L. REV. 667, 699 (1991).
410. David Achtenberg, A "Milder Measure of Villainy ": The Unknown History of 42 U.S.C. § 1983 and the Meaning of "Under Color of" Law, 1999 UTAH L. REV. 1, 43-44.
411. May, supra note 267, at 289-90
412. (quoting 21 CONG. REC. 2457, 2461 (1890) (statements of Sen. Sherman)).
413. Id. at 290
414. (quoting 21 CONG. REC. 2457 (1890) (statements of Sen. Sherman)) (internal quotation marks omitted).
415. Id. at 302
416. (quoting WILLIAM HOWARD TAFT, THE ANTI-TRUST ACT & THE SUPREME COURT 4, 37 (Fred B. Rothman & Co. 1993) (1914)).
417. Attorney in Housing Case Elated, ST. LOUIS POST-DISPATCH, June 17,1968, at IA.
418. Couple's House Hunt Is Still On, ST. LOUIS POST-DISPATCH, June 23, 1968, at 13 A.
419. Id.
420. Bleck, supra note 29.
421. Id.
422. Man Slain in Home in Florissant, ST. LOUIS POST-DISPATCH, May 18, 1974, at IA.
423. Younger Brother Charged with Killing J.L. Jones, ST. LOUIS POST-DISPATCH, May 19, 1974, at 3A.
424. St. Louis, MO-IL - Metropolitan Quality of Life Data, Residential Integration and Neighborhood Characteristics: Segregation of the Population: Dissimilarity with Non-Hispanic Whites by Race/Ethnicity, 2000, http://diversitydata.sph.harvard.edu/profiles. jsp?ma=7040 (last visited Nov. 19, 2008) (citing 2000 U.S. Census Bureau statistics).
425. St. Louis, MO-IL - Metropolitan Quality of Life Data, Residential Integration and Neighborhood Characteristics: Exposure to Neighborhood Poverty by Race/Ethnicity, 1999, http://diversitydata.sph.harvard.edu/profiles.jsp?ma= 7040 (last visited Nov. 19, 2008) (citing 2000 U.S. Census Bureau statistics). Compare this with the 90.5% in 1960. See Casper, supra note 22, at 91.
426. St. Louis County, Real Estate Information, http://revenue.stlouisco.com/ ias/ (last visited Nov. 19, 2008).
427. 42 U.S.C. § 1981 (2000).
428. 427 U.S. 160 (1976).
429. Id. at 170. An association of local private schools with similar racially discriminatory admissions policies also intervened.
430. Id. at 170-71.
431. Id. at 189 (Stevens, J., concurring).
432. Id. at 186-87 (Powell, J., concurring);
433. id. at 189 (Stevens, J., concurring).
434. 491 U.S. 164 (1989), superseded by statute, Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071.
435. Id. at 169-71.
436. See id. at 180-81.
437. See § 101(2), 105 Stat, at 1071-72
438. (codified at 42 U.S.C. § 1981(b)-(c) (2000)).
439. 403 U.S. 217 (1971).
440. Id. at 226.
441. Id. at 227.
442. 451 U.S. 100 (1981).
443. Id. at 102.
444. Id.
445. Id. at 126. The majority did not speculate regarding the scope of disparate impact that may violate the Thirteenth Amendment.
446. Id. at 128-29.
447. Id. at 134 (White, J., concurring).
448. Id. at 145-46 (Marshall, J., dissenting). It should be noted, however, that the basis of this devaluation was not on residential or commercial development opportunity, but the psychological effect of separating the black neighborhood off from the white neighborhood.
449. Id.
450. Id. at 144 & n.11, 148 n.14.
451. Id. at 154 n. 18.
452. See William N. Eskridge, Jr., Reneging on History? Playing the Court/Congress/President Civil Rights Game, 79 CAL. L. REV. 613, 622 (1991).
453. Id.
454. Id. (citing 118 CONG. REC. 3172-73 (1972) (statement of Sen. Hruska);
455. CONG. REC. 31,973 (1971) (statement of Rep. Erlenborn)).
456. Patterson v. McLean Credit Union, 485 U.S. 617 (1998);
457. see Bernard Schwartz, Rehnquist, Runyon, and Jones - the Chief Justice, Civil Rights, and Stare Decisis, 31 TULSA L.J.. 251, 256-57 (1995).
458. Patterson, 485 U.S. at 617;
459. see abo Schwartz, supra note 310, at 251.
460. Schwartz, supra note 310, at 256-57.
461. Patterson, 485 U.S. at 621 (Blackmun, J., dissenting).
462. Id. at 622 (Stevens, J. dissenting).
463. See Patterson v. McLean Credit Union, 491 U.S. 164, 171-75 (1989),
464. superseded by statute, Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 (explaining the doctrine of stare decisis and why its policy decisions do not counsel abrogation of the Court's prior precedent). Congress subsequently amended the Civil Rights Act of 1991 to make explicit that § 1981 applies to nongovernmental as well as governmental actors.
465. See Pub. L. No. 102-166, § 101(2), 105 Stat. 1071 (codified at 42 U.S.C. § 1981(b)-(c) (2000)).
466. See Rutherglen, supra note 17, at 332 ("[T]he implications of any decision expanding the state action doctrine to reach the claim in Jones v. Mayer would have been startling, transforming a wide range of conduct previously thought to be entirely private into state action subject to the Fourteenth Amendment.").
467. Id. at 335. George Rutherglen goes on to remark that Jones's interpretation of the 1866 Act sweeps only a little further than the 1964 and 1968 Acts, "[i]ronically, [making the expanded coverage of the 1866 Act] acceptable ... because it [is] so insignificant."
468. Id.
469. See BUCHANAN, supra note 201, at 179-89.
470. See ALEXANDER TSESIS, THE THIRTEENTH AMENDMENT AND AMERICAN FREEDOM 82 (2004);
471. see also Douglas L. Colbert, Liberating the Thirteenth Amendment, 30 HARV. C.R.-C.L. L. REV. 1, 29, 53 (1995) (arguing that Jones revived the broad purpose of the Thirteenth Amendment, and encouraging a new commitment to Thirteenth Amendment scholarship and instruction in legal academia).
472. See Douglas L. Colbert, Affirming the Thirteenth Amendment, 1995 N.Y.U. ANN. SURV. AM. L. 403, 404 (lamenting that the Thirteenth Amendment's "underutilization prevails today, when the amendment's creative and meaningful application is needed more than ever").
473. William Carter, for instance, has observed that lower courts seldom find violations of the "badges and incidents" of slavery. Instead, they almost uniformly approach the Thirteenth Amendment as limited solely to involuntary servitude. See Carter, supra note 212, at 1315 & n.10.
474. One reason may be ordinary jurisprudential canons of constitutional avoidance; another may be path dependency that began with the civil rights movement of the 1950s and 1960s. Certainly, attempting to directly trace a certain discriminatory phenomenon to the legacy of slavery presents significant sociological, historiographical, and political challenges. Finally, as a matter of political psychology, only a small portion of the voting public sees any utility in rubbing open the scabbed sore of America's slave history.
475. 365 U.S. 167 (1961). It is generally accepted that Monroe v. Pape broke open the Constitution to claims of violations by state and municipal officers. Prior to that, the statute "was remarkable for its insignificance"; indeed, it appears that prior to 1920, only twentyone lawsuits were brought under § 1983.
476. See CIVIL RIGHTS ACTIONS: ENFORCING THE CONSTITUTION 42 (John C. Jeffries, Jr., Pamela S. Karlan, Peter W. Low & George A. Rutherglen eds., 2d ed. 2007)
477. (citing Comment, The Civil Rights Act: Emergence of an Adequate Federal Civil Remedy?, 26 IND. L.J. 361, 363 (1951)).
478. See generally Colbert, supra note 320.
479. See supra note 16.
480. 530 U.S. 640 (2000);
481. see Epstein, supra note 17, at 142;
482. cf. Bernstein, supra note 17, at 139.
483. 545 U.S. 469 (2005).
484. See, e.g., Akhil Reed Amar, Remember the Thirteenth, 10 CONST. COMMENT. 403, 403 (1993) (arguing that the Thirteenth Amendment might have required protection of a child against private abuse in the case of DeShaney v. Winnebego County Department of Social Services, 489 U.S. 189 (1989));
485. Lawrence G. Sager, A Letter to the Supreme Court Regarding the Missing Argument in Brzonkala v. Morrison, 75 N.Y.U. L. REV. 150, 156-57 (2000) (arguing that the Thirteenth Amendment authorized Congress to pass the Violence Against Women Act, 42 U.S.C. § 1981);
486. Alexander Tsesis, Furthering American Freedom: Civil Rights & the Thirteenth Amendment, 45 B.C. L. REV. 307, 308 (2004) ("My contention is that the Thirteenth Amendment ended all aspects of slavery, which spread far outside the boundaries of plantation husbandry into interstate commerce, government fiscal policy, and private sales transactions.");
487. Marcellene Elizabeth Hearn, Comment, A Thirteenth Amendment Defense of the Violence Against Women Act, 146 U. PA. L. REV. 1097, 1098 (1998).
488. See William P. Marshall, The Diversity Theory of the Eleventh Amendment: A Critical Evaluation, 102 HARV. L. REV. 1372, 1384 n.76 (1989)
489. (citing William R. Casto, The First Congress's Understanding of Its Authority over the Federal Courts ' Jurisdiction, 26 B.C. L. REV. 1101, 1103, 1125-26 (1985)).
490. See FONER, supra note 202, at 244 ("In constitutional terms, the Civil Rights bill represented the first attempt to give meaning to the Thirteenth Amendment....");
491. John Hope Franklin, The Civil Rights Act of 1866 Revisited, 41 HASTINGS L.J. 1135, 1142 (1990);
492. Kaczorowski, supra note 19, at 863-64.
493. See United States v. Kozminski, 487 U.S. 931 (1988). In this case involving forced labor of two retarded individuals, the Court found it clear that Congress has the power to enforce the Thirteenth Amendment against private persons; it could do so in a criminal context only when the service is compelled by physical coercion or threat of law, not by psychological compulsion.
494. Id.
495. For example, this Article does not propose that direct evidence of actual agreement would be required for Congress constitutionally to proscribe racialized cartel behavior, nor does it propose that racially discriminatory cartel behavior could be excused by a "rule of reason" in practice. Finally, the beneficiaries of this approach are not primarily consumers, but African Americans who are locked out of competition.
496. 317 U.S. 111 (1942).
497. 545 U.S. 1 (2005).
498. See, e.g., Tsesis, supra note 327, at 340 (noting that Jones recognizes that the Thirteenth Amendment can be used directly against private persons who discriminate and "need not operate behind a veil of congressional power over interstate commerce").
499. This limitation has two components: First, the requirement that legislation passed under the Fourteenth Amendment target state actors, rather than private actors. See, e.g., United States v. Morrison, 529 U.S. 598 (2000); The Civil Rights Cases, 109 U.S. 3 (1883). Second, the suggestion that Congress can only legislate to protect federal rights that the Supreme Court has already recognized in the Constitution or as incorporated by the Fourteenth Amendment.
500. See City of Boerne v. Flores, 521 U.S. 507 (1997);
501. see abo Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001);
502. Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000).
503. See LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 5-13 (2d ed. 1988) ("Seemingly, Congress is free, within the broad limits of reason, to recognize whatever rights it wishes, define the infringement of those rights as a form of domination and thus an aspect of slavery, and proscribe such infringement as a violation of the [T]hirteenth [A]mendment.").
504. For instance, it would be troublesome if Congress were to use its Thirteenth Amendment enforcement power to, for example, dictate to couples that they had to marry across racial lines, or to curtail their ability to make such choices, by, for example, passing a law forbidding racial designations in personal ads. Although racial preferences in marriage have a disparate effect on minorities, personal choices in one's mate, unlike personal choices in one's work colleagues or country club memberships, do not fall within the kind of social benefits or economic benefits that the Thirteenth Amendment doctrine can reach. A harder question, discussed below, is whether the Thirteenth Amendment could be used to proscribe certain selection options in one's child bearing.
505. William Carter made a similar remark during a symposium on the Thirteenth Amendment at the University of Toledo Law School. See Carter, supra note 212, at 1317 (arguing that a view of the Thirteenth Amendment as "providing a generalized constitutional remedy for all forms of discrimination" ignores history and risks devaluing the potential of the amendment to provide an effective remedy);
506. Tsesis, supra note 327, at 310 (noting that an interpretation of the Thirteenth Amendment cannot neglect history). In this regard, I am somewhat sympathetic to the theory, but not the application, of the Court's power to prevent Congress from redefining a constitutional right under the guise of enforcing it.
507. See Boerne, 521 U.S. at 519.
508. Such as peonage, 18 U.S.C. § 1581 (2006), physical compulsion for labor, id. § 1589;
509. see abo id. § 1594 (authorizing civil forfeiture actions against violators of some provisions of 18 U.S.C. §§ 1581, 1583-1584, 1589-1590).
510. In this sense, my analysis of the power of Congress under the Thirteenth Amendment supplements Professor Carter's excellent treatment of the issue. Professor Carter argues that a "badge or incident" of slavery requires a nexus between the history of the group and the nature of the injury. "[A]s the group's link to slavery grows more attenuated, the nature of the injury must be more strongly connected to the system of slavery to be rationally considered a badge or incident thereof." Carter, supra note 212, at 1318. My analysis, however, adds the requirement that there be some evidence that the behavior, if sufficiently prevalent, would have the effect of locking out African Americans from political, social, or economic opportunity.
511. This Article is indebted to Professor Carter's and Professor Rosen's
512. See Rosen, supra note 51, at 492-98. Rosen's notion of "constitutional preemption" is supported by Gilded Age legal commentator John W. Burgess, who wrote in 1890 that '"[t]here is no doubt that those who framed the [Thirteenth and [Fourteenth [Amendments intended to occupy the whole ground [of the area of civil liberties] and thought that they had done so. The opposition charged that these amendments would nationalize the whole sphere of civil liberty; the majority accepted the view; and the legislation of Congress for their elaboration and enforcement proceeded upon that view.'"
513. Sheffer, supra note 254, at 48 (emphasis added)
514. (quoting 1 JOHN W. BURGESS, POLITICAL SCIENCE AND COMPARATIVE CONSTITUTIONAL LAW: SOVEREIGNTY AND LIBERTY 225 (Boston, Ginn & CO. 1890)).
515. Although this does not suggest that Congress would not have power under the Commerce Clause, Spending Clause, Fourteenth Amendment, or other authority. Furthermore, the graph does not specifically capture the ability of Congress to prevent retaliation against whites, for instance, for supporting the rights of African Americans.
516. Lower courts have held that 42 U.S.C. § 1981 and its ilk have not clearly abrogated state sovereignty. See, e.g., Keri v. Bd. of Trs. of Purdue Univ., 458 F.3d 620, 640 (7th Cir. 2006);
517. Singletary v. Mo. Dep't of Corr., 423 F.3d 886, 890 (8th Cir. 2005);
518. Powers v. CSX Transp., Inc., 105 F. Supp. 2d 1295, 1303 (S.D. Ala. 2000). While that conclusion is subject to challenge, it cannot be gainsaid that Congress could, by express intention under the Thirteenth Amendment, authorize money damages against the states, just as it has through Title VII. Cf. Fitzpatrick v. Bitzer, 427 U.S. 445, 456-57 (1976) (holding that Title VII is a valid abrogation of states' Eleventh Amendment immunity from suit).
519. 521 U.S. 898 (1997).
520. 527 U.S. 706 (1999).
521. 403 U.S. 217 (1971).
522. Indeed, in the modern area of public choice theory, it may well be impossible for any court to come to a conclusion that a deliberative body decided to close the swimming pool "because" of invidious racism. See generally KENNETH J. ARROW, SOCIAL CHOICE AND INDIVIDUAL VALUES (2d ed. 1963) (demonstrating how it is impossible to know the preferences of any deliberative body by identification of each member's individual preferences).
523. See Palmer, 403 U.S. at 226-27.
524. See Richardson v. Ramirez, 418 U.S. 24, 56 (1974) (holding that it is not a Fourteenth Amendment violation to exclude felons who have completed their sentences from the franchise).
525. Cf. Hunter v. Underwood, 471 U.S. 222 (1985).
526. In Hunter v. Underwood, the Court held that an ostensibly race-neutral felony disenfranchisement law that was passed specifically because it would disproportionately affect African Americans was unconstitutional. Its subsequent use by felons seeking to invalidate other disenfranchisement laws has not been successful.
527. See Cotton v. Fordice, 157 F.3d 388 (5th Cir. 1998);
528. R.A. Lenhardt, Understanding the Mark: Race, Stigma, and Equality in Context, 79 N.Y.U. L. REV. 803, 919 (2004) (noting the "curtail[ment]" of the utility of Hunter in other felon disenfranchisement cases).
529. See Wesley v. Collins, 791 F.2d 1255, 1260-61 (6th Cir. 1986).
530. Such legislation could be passed in combination with the Fifteenth Amendment as well. See George P. Fletcher, Disenfranchisement as Punishment: Reflections on the Racial Uses of Infamia, 46 UCLA L. REV. 1895, 1904 (1999). George Fletcher suggests that both the Thirteenth and Fifteenth Amendments may invalidate these felon disenfranchisement laws on their face; this author does not take that point of view. However, at a minimum, such a federal civil rights restoration bill for felons could be authorized under Section 2 of the Thirteenth Amendment.
531. Congress should use such a remedial power under the Thirteenth Amendment wisely; for example, I do not mean to suggest that Congress should (if it ever would) use the Thirteenth Amendment to restore the rights of a former felon to possess a firearm. Nor do I mean to suggest that the Thirteenth Amendment could be used on its own to invalidate such felon disarmament statutes.
532. See Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738 (2007) (plurality decision holding that voluntary integration programs in elementary and secondary schools that used race as a factor violate the Fourteenth Amendment).
533. See I. Bennett Capers, Reading Back, Reading Black, 35 HOFSTRA L. REV. 9, 19-20 (2006) (recounting stories of blacks tortured, mutilated, and killed by their masters for teaching themselves or others to read);
534. Paul Finkelman, The Strange Career of Race Dbcrimination in Antebellum Ohio, 55 CASE W. RES. L. REV. 373, 390 (2004).
535. See Claudia Kalb, Brave New Babies, NEWSWEEK, Jan. 26, 2004, at 45, 45-46.
536. See PRESIDENT'S COUNCIL ON BIOETHICS, BEYOND THERAPY: BRTTECHNOLOGY AND THE PURSUIT OF HAPPINESS 59-61 (2003), available at http://www.bioethics.gov/reports/beyondmerapy/beyond-merapy-final-webcorrected. pdf. One can conceive other scenarios: for example, a widespread preference for blue-eyed and blond children; a preference for children skilled in music and mathematics; or a preference for children who are wellbehaved, or tall. The permutations are nearly endless, and the consequences unsettling.
537. For an interesting discussion of the issue, including the application of the Thirteenth Amendment to the problem, see Note, Regulating Eugenics, 121 HARV. L. REV. 1578 (2008).