HOUSING DISCRIMINATION
Landmark case at 40
June 23, 2008
On June 17, 1968, the U.S. Supreme Court held in Jones v. Alfred H. Mayer Co. that Congress had the power to outlaw private housing discrimination. The court based its decision on the 13th Amendment, which empowered Congress to "pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States." Today, 40 years after Jones, its holding is worth re-examining.
The Jones case arose out of a private developer's refusal to sell a home in the St. Louis area to the Joneses because Joseph Lee Jones was African-American. The Joneses sued, alleging racial discrimination in violation of 42 U.S.C. 1982, which prohibits racial discrimination in the sale or rental of real and personal property. The lower courts dismissed the complaint, holding that § 1982 applies only to discrimination by state actors. The high court reversed, finding that the text of § 1982 clearly extended to private action, and Congress had the constitutional power to enact such a statute.
The court noted that § 1982, originally enacted as part of the Civil Rights Act of 1866, was based upon the 13th Amendment. Although the 13th Amendment's first section provides only that "[n]either slavery nor involuntary servitude . . . shall exist within the United States," the second section provides that "Congress shall have the power to enforce this article by appropriate legislation." A comprehensive review of the amendment's legislative history convinced the court that the second section was intended to give Congress the authority "to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States," regardless of whether they are imposed by state action or private conduct. Unlike the 14th Amendment, which the Civil Rights Cases held is limited to state action, Congress' power under the 13th Amendment, according to the Jones court, "includes the power to enact laws . . . operating upon the acts of individuals, whether sanctioned by state [action] or not." The post-Civil War Congress that adopted the 13th Amendment and the Civil Rights Act of 1866 understood that many of the fundamental rights denied to the enslaved (and to the newly freed slaves after the end of the Civil War) were denied as the result of the "prevalence of private hostility toward [blacks]" and consequently recognized "the need to protect them from the resulting persecution and discrimination."
Jones held that among the "badges and incidents of slavery" that Congress could legitimately prohibit was the practice of private white property owners maintaining segregated communities by refusing (either individually or under restrictive covenants) to sell to blacks: "Just as the Black Codes, enacted after the Civil War to restrict the free exercise of [the freedmen's] rights, were substitutes for the slave system, so the exclusion of Negroes from white communities became a substitute for the Black Codes. And when racial discrimination herds men into ghettos and makes their ability to buy property turn on the color of their skin, then it too is a relic of slavery."
In addition to its direct impact on housing discrimination, the Jones case is a notable case regarding civil rights more generally. In marked contrast to the court's 14th Amendment "state action" jurisprudence, the opinion in Jones is grounded in the reality that much of the historical and contemporary inequality in America is a result of private action. While state-sponsored racial discrimination surely violates constitutional norms, Jones also recognized that private racial discrimination can have similarly injurious effects. Civil rights, in the words of the Jones court, can be denied or infringed by the "custom or prejudice [of private individuals] as well as by state or local law."
Jones also stands in sharp relief to the Rehnquist court's cases on the scope of congressional power to enforce the post-Civil War amendments. The Rehnquist court adopted a narrow and grudging view of congressional power, holding in a series of cases that Congress' power to enforce the 14th Amendment was limited to legislation demonstrating "congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." Under this standard, the court has accorded Congress very little deference regarding whether laws enacted pursuant to the 14th Amendment are valid exercises of congressional power. In Jones, however, the court granted substantial deference to Congress in determining what forms of discrimination were appropriate subjects for congressional action. Congress' power to enforce the 13th Amendment by reasonable "appropriate legislation," according to Jones, "authorizes Congress not only to outlaw all forms of slavery and involuntary servitude but also to eradicate the last vestiges and incidents" of hundreds of years of black enslavement."
Finally, Jones is a milestone in judicial attitudes regarding the legacy of slavery and its contemporary effects. Rather than treating the bigotry and stigma that lead to private housing discrimination as abstract "societal discrimination" invisible to the Constitution, the Jones court recognized the continuity of prejudices about blacks that arose from, and were essential to, maintaining slavery. The Jones court acknowledged that eradicating the institution of slavery also established a constitutional duty of all governmental branches to eliminate slavery's lingering vestiges. Otherwise, in the words of the Jones court, "the Thirteenth Amendment made a promise the Nation cannot keep." The anniversary of Jones is a reminder that there is still work to be done, lest that promise remain unfulfilled.
William Carter Jr. is a professor of constitutional law, civil rights and civil procedure at the Temple University James E. Beasley School of Law in Philadelphia. He is a scholar of the 13th Amendment and has written several articles on constitutional law and human rights. This summer, he will speak on constitutional law at the Association of American Law Schools mid-year conference.
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