The
American
University
Law Review
VOLUME 18
JUNE, 1969
NUMBER
3
THE NEW FAIR HOUSING LAW: 1866
Theodore F. Denno*
In a June 17, 1968 decision that caught the whole nation by
surprise, the United States Supreme Court in Jones v. Alfred H.
Mayer Co' not only upheld the constitutionality of the Civil Rights
Act of 1866,2 an issue then perhaps still in doubt,3 but specifically
found it constitutionally applicable to private as well as state acts.4
The New York Times reported that the Supreme Court had turned
the almost forgotten civil rights law of 1866 into a sweeping fair
housing statute that prohibits racial discrimination in all sales and
rental of property. The Times noted that the Court had in effect
created a fair housing law that went beyond the newly enacted Civil
Rights Act of 1968 in several respects, and that while the 1968 law's
major prohibitions against housing discrimination would not go into
effect until January 1, 1969, under Jones, Negroes could sue
immediately
The Court determined the constitutional question in Jones to be
whether "the authority of Congress to enforce the Thirteenth
Amendment 'by appropriate legislation' included the power to
* Chairman, Department of Political Science, State University of New York (Cortland,
New York).
I. 392 U.S. 409 (1968).
2. 42 U.S.C. §§ 1981, 1982 (1964) (originally enacted as 14 Stat. 27, reenacted by § .18 of
the Enforcement Act, 16 Stat. 140, codified in Rev. Stat. §§ 1977, 1978 (1874)).
3. 392 U.S. at 420, n.25 (1968).
4. Id. at 421 (1968).
5. New York Times, June 18, 1968, at I, col. 8.
491
THE AMERICAN UNIVERSITY LA W REVIEW
[Vol. 18
eliminate all racial barriers to the acquisition of real and personal
property?" The answer was found to be "plainly yes." '
Throughout the case, the Court was construing 42 U.S.C. § 1982
(1964), which provides:
All citizens of the United States shall have the same right, in every
State and Territory, as is enjoyed by white citizens thereof to inherit,
purchase, lease, sell, hold, and convey real and personal property.
This section of the Code is derived from the Civil Rights Act of 1866,
which the Court in Jones took considerable pains to research and
interpret. Section 1 of the 1866 Act reads:
An Act to protect all Persons in the United States in their Civil
Rights, and furnish the Means of their Vindication.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled. That all persons born
in the United States and not subject to any foreign power, excluding
Indians not taxed, are hereby declared to be citizens of the United
States; and such citizens of every race and color, without regard to any
previous condition of slavery or involuntary servitude, except as a
punishment for crime whereof the party shall have been duly convicted,
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 to 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 notwithstanding7
Prior to a discussion of the substantive questions raised by the
Jones opinion, the relationship of the United States Code to the
discrete statutes from which it is derived must be established. In
particular, it should be noted that 42 U.S.C. § 1982 does not
supercede or in any way annul the original 1866 Act. The legislation
which established the Code provided that nothing in it should be
construed as repealing or amending any prior law, or as enacting as
new law any matter contained in the Code. In case of any
inconsistency between the provisions of any section of the Code and
the corresponding portion of legislation previously enacted, effect
should be given for all purposes whatsoever to such previous
8
enactments.
6. 392 U.S. at 441.
7. 14 Stat. 27.
8. I U.S.C. Ixv (1964) (quoting 44 Stat 777); "since intervening revisions have not been
1969]
THE NEW FAIR HOUSING LA W: 1866
A careful Shepardizing indicates no nullifying or substantive
changes through judicial interpretation. Neither the Civil Rights
CasesO nor Hodges v. United States'" affect the 1866 Act. The Act
appears to stand uninterpreted (before June 17, 1968), as to purely
personal discrimination, as passed on April 9, 1866. The majority and
2
dissenting opinions in Jones v. Mayer made this assumption.
The questions raised by Jones must be answered with reference to
the decision itself and the Act of 1866. They include the following:
(1) Does the Act of 1866 empower a federal agency to assist
aggrieved parties?
(2) Does it provide for payment of damages?
(3) What exemptions does it allow, and does it deal with
discriminatory ancillary practices in the real estate field?
(4) Can it control discrimination against (a) Orientals, (b)
Mexican-Americans, (c) Indians, (d) Puerto Ricans?
(5) How much additional legislation and federal machinery is
needed?
(6) Is the Act enforceable only by private parties acting on their
own initiative?
(7) Is it a comprehensive open housing law?
(1)
Does the Act of 1866 empower a federal agency to assist aggrieved
parties? The Supreme Court in Jones answered this question in the
negative, finding that the Act of 1866 made no provision for
3
intervention by the Attorney General .
Section 4 of the Act, however, states:
That the district attorneys, marshals, and deputy marshals of the
United States, the commissioners appointed by the circuit and territorial
courts of the United States, with powers of arresting, imprisoning, or
bailing offenders against the laws of the United States . . . and every
other officer who may be specially empowered by the President of the
United States, shall be, and they are hereby specially authorized and
required, at the expense of the United States, to institute proceedings
meant to alter substance the intended meaning of § 1982 must be drawn from the words in
which it was originally enacted." 392 U.S. at 453.
9. 109 U.S. 3 (1883).
10. 203 U.S. I (1906).
II. The Court stated that "insofar as Hodges is inconsistent with our holding today, it is
hereby overruled." 392 U.S. at 443 n.78.
12. Id. at 419-20, 420 n.25; Id. at 450 (Harlan, J. dissenting).
13. Id. at 414.
THE AMERICAN
UNIVERSITY LAW REVIEW
[Vol. 18
against all and every person who shall violate the provisions of this act
...
. And . . . it shall be the duty of the circuit courts of the United
States . . . to increase the number of commissioners, so as to afford a
speedy and convenient means for the arrest and examination of persons
charged with a violation of this act; and such commissioners are hereby
authorized and required to exercise and discharge all the powers and
duties conferred on themn by this act . .. .
These words fairly shout their intent. These officials referred to are
specific agents of the President and the courts. The power is plenary,
the duty is required and the jurisdiction includes all proceedings
against all and every person who shall violate the provisions of the
Act, thereby encompassing both civil and criminal actions at the
expense of the United States.
So determined was the Congress to deal slavery and its remnants a
death blow, that included in the 1866 Act were the breathtaking
powers of Section 5:
And be it further enacted. That it shall be the duty of all marshals and
deputy marshals to obey and execute all warrants and precepts issued
under the provisions of this act, when to them directed; and should any
marshal or deputy marshal refuse to receive such warrant or other
process when tendered, or to use all proper means diligently to execute
the same, he shall, on conviction thereof, be fined in the sum of one
thousand dollars, to the use of the person upon whom the accused is
alleged to have committed the offence. And the better to enable the said
commissioners to execute their duties faithfully and efficiently, in
conformity with the Constitution of the United States and the
requirements of this act, they are hereby authorized and empowered,
within their counties respectively, to appoint, in writing, under their
hands, any one or more suitable persons, from time to time, to execute
all such warrants and other process as may be issued by them in the
lawful performance of their respective duties; and the persons so
appointed to execute any warrant or process as aforesaid shall have
authority to summon and call to their aid the bystanders or posse
comitatus of the proper county, or such portion of the land or naval
forces of the United States, or of the militia, as may be necessary to the
performance of the duty with which they are charged; and to insure a
faithful observance of the clause o( the Constitution which prohibits
slavery, in conformity with the provisions of this act; and said warrants
shall run and be executed by said officers anywhere in the State or
Territory within which they are issued.'14. 14 Stat. 28 (emphasis added).
15. Id.
1969]
THE NEW FAIR HOUSING LA W: 1866
In a recent case, New York v. Galamison,6 the United States
Court of Appeals for the Second Circuit said that because massive
local resistance was anticipated, Congress had devoted Sections 4-10
of the Civil Rights Act of 1866 to provisions compelling and
facilitating the arrest and prosecution of violators of Section 2, the
criminal sanction for Section 1 rights. These sections authorized and
required district attorneys to prosecute. 7 Thus, the extraordinary
executive powers granted in the 1866 Act have been given judicial
recognition.
Specific authority for the use of the armed forces by persons
appointed by federal commissioners to execute the law is established
by the Act of 1866. In addition, a marshal refusing to act under the
law might be fined one thousand dollars to be turned over to the
person against whom the alleged offense was committed, and there is
no indication that such person need be the complainant. In fact, the
assumption is that the United States will be the complainant. The act
has further enforcing provisions, and while the specific phrase "to
assist aggrieved parties" is not used, nor a special agency established,
the clear intent was to accomplish the corresponding aims. 8
(2)
Does the Act of 1866 provide for the payment of damages?
According to Jones, the Act of 1866 contains no provisions expressly
authorizing a federal court to compel the payment of damages. 9
While this statement is technically correct, the author feels that a
remedy or judgment in damages need not be expressly authorized by a
declaratory statute in order to be accomplished. The 1866 Act allows
for both criminal and civil cases, providing specific punishment for
the former and leaving the punishment up to the court's discretion in
the latter."0
The Court in Jones undercut its own argument by noting that the
fact that 42 U.S.C. § 1982 is couched in declaratory terms and
provides no explicit method of enforcement does not prevent a federal
court from fashioning an effective equitable remedy.2 ' Thus, the
technically accurate statement "it contains no provisions expressly
16.
17.
18.
19.
20.
21.
342 F.2d 255 (2d Cir. 1965).
Id. at 262.
14 Stat. 28, 29.
392 U.S. at 414.
14 Stat. 27.
392 U.S. at 414 n.13.
THE AMERICAN UNIVERSITY LA W REVIEW
authorizing . . . the payment of damages"
damages will not be adjudged.
[Vol. 18
does not mean that
(3)
What exemptions does the Act of 1866 allow, and does it deal with
discriminatory ancillary practices in the real estate field? Jones stated
that § 1982 contains none of the exemptions found in the Civil
Rights Act of 1968.22 The Court declared that § 1982 prohibited, on
its face, all discrimination against Negroes in the sale or rental of
property. In its original form, the Section was construed to be part of
Sec. I of the Civil Rights Act of 1866 and that section was noted to
have been cast in sweeping terms.2 Thus, Congress did not intend any
exemptions and the Court explicitly recognized that intention. In the
sale and rental of property every citizen is to have the same right, that
is, the right enjoyed by white citizens. No law or custom is to infringe
upon this right.
The Act of 1866 allowing absolutely no exemptions, what resulted
when the Civil Rights Act of 196824 became fully effective, with
exemptions, on January 1, 1969? The Jones decision expressly
declared that it would be a serious mistake to suppose that § 1982 in
any way diminished the significance of the Civil Rights Act of 1968.25
But what of the reverse? Could the Act of 1968 nullify the plenary
sweep of the Act of 1866? The Court in Jones agreed with the
Attorney General that § 1982 would not be affected in any way by
the Act of 1968 but would stand independently. The Civil Rights Act
of 1968 does not mention 42 U.S.C. § 1982, and the Court stated
that it could not assume that Congress intended to effect any change,
either substantive or procedural, in the prior statute.26
Taking these statements at face value, the 1968 Act should not
invalidate or interfere with the "sweeping terms" of the Act of 1866.
But the Court goes on to say that § 1982 does not deal specifically
with discrimination in the provision of services or facilities in
connection with the sale or rental of a dwelling, nor does it prohibit
advertising or other representations that indicate discriminatory
preferences. Neither does it refer explicitly to discrimination in
22. Id. at 415. The Court expressed no view as to what extent § 1981 might bar
discrimination in the provision of such services.
23. Id. at 422.
24. 82 Stat. 73.
25. 392 U.S. at 415.
26. Id. at 416 n.20.
19691
THE NEW FAIR HOUSING LA W: 1866
financing arrangements or in the provision of brokerage services.2 7
Hence, the Court somewhat demeans the 1866 Act by contrasting
that, while the 1866 Act does not "deal specifically with" these
matters, the Act of 1968 does. In using sweeping terms to prohibit all
discrimination, the Act of 1866 clearly extends its protection to all the
practices specified in the 1968 Act and beyond. The new Act can be
seen as the weaker precisely because it specifies, with the implication
that nonspecified practices are beyond its reach. Thus, it is quite
possible that explicit inclusion in the Act of 1968 will be conducive to
discrimination rather than its opposite. When the 1866 Act declares
as is enjoyed by white
that all citizens "shall have the same right .
citizens," it takes no judicial imagination to apply the plain meaning
and intent of the Act to all the services, practices, or customs that are
now used, or may be subsequently used in the real estate field."
(4)
Can the Act of 1866 control discrimination against (a) Orientals,
(b) Mexican-Americans, (c) Indians, (d) Puerto Ricans? The Jones
decision stated that § 1982 does not address itself to discrimination
on grounds of religion or national origin.29
While the Act plainly was drawn with regard to Negroes, there is
nothing to warrant the conclusion that its scope was to end there. The
terms "Negro" or "colored" do not appear anywhere in the Act
while the term ". . . citizens, of every race and color . . ."
emphatically does 0 In addition, the Title of the Act is indicative of
its scope: "An Act to protect all Persons in the United States in their
Civil Rights, and furnish the Means of their Vindication." (emphasis
added)
Certainly the "every race and color" inclusion reaches Orientals
and Indians (provided the Indians are living as United States citizens
and are taxed) and, in practice, can be extended to Spanish surname
classes since they are either white citizens, and presumably treated
equally, or some other race or color included under the law. Such
legal exegesis should not be necessary however-since all persons are
to be treated as racially equal under the plain requirement of the Act.
That it does not extend to religion or national origin may leave room,
in practice, only for an argument that Jews and Catholics need
27.
28.
29.
30.
Id. at 413.
Id. at 413 n.10.
Id. at 413.
14 Stat. 27.
THE AMERICAN UNIVERSITY LA W REVIEW
[Vol. 18
protection, per se. However, in the recent history of the country
religious and ethnic discrimination does not appear to reach the
dimensions of a social problem. Where it does, it is a reasonable
interpretation of the Act that all white citizens are to be treated
equally.
Perhaps ethnic and/or religious background is an area where the
Act of 1866 needs strengthening, as it might also need reinforcement
on sex or age grounds, but an amendment to an existing plenary
power is preferable to a new Act that, by attempting to be specific
and granting exemptions, seems to run the risk of nullifying the old.
The practical effect of 1866 is to cover most, if not all, non-Negro,
as well as Negro, discrimination-and without exemptions.
(5)
How much additional legislation and federal machinery is needed?
The Court accepted the view that applying the 1866 Act to
discriminatory acts of private persons as well as states (the issue in
Jones v. Mayer) would not eliminate the need for congressional
legislation to spell out federal responsibility and establish federal
machinery to enforce the rights it guarantees.-" While it is probably
desirable to establish arbitrative machinery to further facilitate the
decline of slavery's remnants and to more speedily promote justice, it
is not desirable to undercut any of the massive powers, duties, and
requirements of the Act of 1866 by establishing machinery that may
simply become administrative inaction or obstruction. The Act of
1866 does not need to be supplanted, it needs to be enforced. New law
has become the excuse to evade and emasculate the old: political cooption has become administrative and legal. If the authority resting in
the 1866 Act were simply used no additions would be necessary. It is
clearly presidential politics coupled to, and encouraging the spread of,
racism throughout the nation that has obstructed the enforcement of
the Act. Had the storms in 1866 been faced, who can doubt that the
nation might not now be facing a vastly more ugly situation? The
missed opportunity of one Civil War threatens to engender a second.
(6)
Is the Act of 1866 enforceable only by private parties acting on
their own initiative? The Court characterized it as such, in contrast to
the Act of 1968 which it called a detailed housing law, applicable to a
31. 392 U.S. at 415.
19691
THE NEW FAIR HOUSING LA W: 1866
broad range of discriminatory practices and enforceable by a complete
arsenal of federal authority 2
It would appear that the Act of 1866 is on its face, broader than
the 1968 Act, for it has a vastly more complete (and literal) arsenal of
federal authority. Action is not only permissible by parties acting on
their own initiative but federal officers are required, at the expense of
the United States, to institute proceedings against all and every person
who shall violate the act.3
Not only does the 1866 Act protect against discrimination in the
sale and rental of property, but it is clearly applicable to the equal
enjoyment of property in a sense which is becoming increasingly
important and which the Court failed to mention in its comparative
appraisal of 1866 and 1968. There is little doubt that the sweeping
statute rather than the specific statute could be applied to control the
vast discrimination practiced by housing, health, fire, police, etc.,
inspectors and landlords in the nation's ghettos. Racial discrimination
is blatantly present in allowing miserable housing conditions to exist
in violation of local codes. Section 1 of the 1866 Act appears to be
applicabl&I and would seem to preclude this type of discrimination on
the part of landlords, insurance companies, cities and others. The
fourteenth amendment might also apply.
(7)
Is the Act of 1866 a comprehensive open housing law? The Court in
Jones emphatically states that 42 U.S.C. § 1982 is not? 5 Here again
an apparent judicial refuge is taken in the United States Code as
distinguished from the Act of 1866. Remembering the words "all
discrimination" and "sweeping terms" as. used by the Court in
describing the 1866 Act, what could be more comprehensive,
especially when joined with the Court's explicit declaration that that
was exactly what Congress meant? 6 The comprehensive nature of the
1866 Act lies precisely in the fact that it allows no exemptions, lacks
specific inclusion of discriminatory ancillary practices and requires the
application of federal power.
The Act was held to be so inclusive by its authors, that, fearing for
32. Id. at 417.
33. 14 Stat. 28.
34. 14 Stat. 27: "...
such citizens,'of every race and color . . shall have the same right
. . .to full and equal benefit of all laws and proceedings for the security of person and property
as is enjoyed by white citizens ....
35. 392 U.S. at 413.
36. Id. at 422.
THE AMERICAN
UNIVERSITY LA W REVIEW
[Vol. 18
its survival at the hands of the courts, they drew up the fourteenth
amendment as insurance against judicial nullification. Both the
citizenship provisions and the equal protection clause of the fourteenth
amendment are obviously of the same intent as enacted in the Act of
1866. For in 1870, after the fourteenth amendment had been
incorporated into the Constitution, the Act of 1866 was repassed
verbatim in order to insure its validity and to specifically empower it
to provide legal coverage for private as well as state acts.
A careful reading of Jones indicates that the Court relied on the
above facts in reaching its decision. The Court, in response to the
respondents' suggestion that the only evil Congress had sought to
eliminate was that of racially discriminatory laws in the former
Confederate States, stated that the Civil Rights Act of 1866 was
drafted to apply throughout the country, and its language was far
broader than would have been necessary only to strike down
discriminatory statutes. That broad langauge was determined not to
have been a mere slip of the legislative pen. The Act was intended to
affirmatively secure for all men, whatever their race or color, the
"great fundamental rights," and the fact that the bill would indeed
have so sweeping an effect was seen as its great virtue by its friends
and as its great danger by its enemies. Opponents of the bill charged
that it would not only regulate state law but would directly determine
the persons who would enjoy property within the states, threatening
the ability of white citizens to determine who would be members of
their communities. The bill's advocates did not deny the accuracy of
those characterizations, indeed, they defended the propriety of
employing federal authority to deal with those white men who would
invoke the power of local prejudice against the Negro. TY us, the
Court in Jones reasoned, when the Congress passed the Civil Rights
Act of 1866, it did so fully aware of the breadth of the measure it had
approved, "that it was approving a comprehensive statute forbidding
all racial discrimination affecting the basic civil rights enumerated in
the act. ' 37 The Court then proceeds to state that if the law is to be given
the scope that its origins dictate, it must be accorded a sweep as
broad as its language. There must not be carved from § 1982 an
exception for private conduct-even though its application to such
conduct was without established precedent.3 8 Thus, we have the
astonishing declaration that while § 1982, the statutory derivation of
37. Id.at 435.
38. Id.at 437.
1969]
THE NEW FAIR HOUSING LA W: 1866
the 1866 Act, is not comprehensive, the Act itself is. Why did the
Court do this? Why did it maneuver itself into the position of both
denying and affirming the comprehensive nature of the Act of 1866?
Bearing in mind that both the Court and the 1968 Act disclaim any
interference with or curtailment of any other law, why did the Court
leave itself open to future entanglements where one litigant will point
to the Act of 1866 and declare himself aggrieved while the other will
look to the Act of 1968 and declare himself justified?
The answer lies in the fact that the Act of 1968 is in itself not a
comprehensive Act but merely a gamey political compromise. The
Jones decision lists three grounds on which the appellants could not
be heard under the 1968 Act 9 As a result, the Court was forced to
rely on the Act of 1866 in reaching its judgment; it was forced to
specifically declare the 1866 Act constitutional and applicable to
private acts. It was forced to "write" a comprehensive fair housing
law which on its face, and by the action of the Court itself, is more
comprehensive than the 1968 Act. Yet the Justices did not want to
blatantly nullify a recent action of the Congress even before it went
into effect. They sought to dovetail the two Acts by separation: they
"stand independently." They danced, as they must, to a legal tune
with political overtones.
But these are matters for strategists. The fact that the Court acted,
and sweepingly if not heroically (considering the battle in the Senate
to get liberal Justices confirmed) is the positive, important national
fact. It is a great step in the right direction, provided that the sweep
of the 1866 Act is not allowed to die on the vine of "exemptions"
and "specifications" listed in the 1968 Act. There is a legitimate fear
that on having breathed, not new life, but just life at all, into the
simple and superb Act of 1866, the Court may now move to shackle
its sweep.
The possible applications of that law to the current
property/housing situation are potentially promising of great
progress. Probably the most important immediate action to be
undertaken is a test and application of the provisions of Section 4,
which require both executive and judicial officials, district attorneys,
marshals and commissioners to institute proceedings. In an
appropriate case, perhaps a request to a court, or a request for a
court order could be favorably received instructing a commissioner,
district attorney or marshal to pursue a case on behalf of an alleged
39. Id. at 417 n.21.
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 18
grievance under the Act. The purpose is to enforce the intent of the
Act, namely, that the United States assume the full burden of the
plaintiff.
Justice Douglas, concurring, stated that there is need to forestall
perversion of the problem which occurs by allowing the legal mind to
draw lines and make distinctions that have no place in the
jurisprudence of a nation striving to rejoin the human race. 40 Let us
also hope that the charge which Justice Harlan wrote into his dissent
is true, that the Court, by its construction of § 1982, has extended
the coverage of federal "fair housing" laws far beyond that which
Congress in its wisdom chose to provide in the Civil Rights Act of
1968.41 Let us hope that the revival of the Act of 1866 will mean more
than merely a kind of recidivist conversion commonly erupting at
evangelistic meetings, and that the "new" fair housing law of 1866
will at last come to fruition in helping render the promises of the
American Constitution real.
40. Id. at 449 n.6.
41. Id. at 478.