Jones v. Alfred H. Mayer Co./Concurrence Douglas

Mr. Justice DOUGLAS, concurring.

The Act of April 9, 1866, 14 Stat. 27, 42 U.S.C. § 1982, 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 Act was passed to enforce the Thirteenth Amendment which in § 1 abolished 'slavery' and 'involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted' and in § 2 gave Congress power 'to enforce this article by appropriate legislation.'

Enabling a Negro to buy and sell real and personal property is a removal of one of many badges of slavery.

'Slaves were not considered men. * *  * They could own      nothing; they could make no contracts; they could hold no      property, nor traffic in property; they could not hire out;      they could not legally marry nor constitute families; they      could not control their children; they could not appeal from      their master; they could be punished at will.' W. Dubois,      Black Reconstruction in America 10 (1964).

The true curse of slavery is not what it did to the black man, but what it has done to the white man. For the existence of the institution produced the notion that the white man was of superior character, intelligence, and morality. The blacks were little more than livestock-to be fed and fattened for the economic benefits they could bestow through their labors, and to be subjected to authority, often with cruelty, to make clear who was master and who slave.

Some badges of slavery remain today. While the institution has been outlawed, it has remained in the minds and hearts of many white men. Cases which have come to this Court depict a spectacle of slavery unwilling to die. We have seen contrivances by States designed to thwart Negro voting, e.g., Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281. Negroes have been excluded over and again from juries solely on account of their race, e.g., Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664, or have been forced to sit in segregated seats in courtrooms, Johnson v. State of Virginia, 373 U.S. 61, 83 S.Ct. 1053, 10 L.Ed.2d 195. They have been made to attend segregated and inferior schools, e.g., Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, or been denied entrance to colleges or graduate schools because of their color, e.g., Commonwealth of Pennsylvania v. Board of Directors of City of Trusts, 353 U.S. 230, 77 S.Ct. 806, 1 L.Ed.2d 792; Sweatt v. Painter, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114. Negroes have been prosecuted for marrying whites, e.g., Loving v. Commonwealth Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010. They have been forced to live in segregated residential districts, Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149 and residents of white neighborhoods have denied them entrance, e.g., Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161. Negroes have been forced to use segregated facilities in going about their daily lives, having been excluded from railway coaches, Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256; public parks, New Orleans City Park Improvement Assn. v. Detiege, 358 U.S. 54, 79 S.Ct. 99, 3 L.Ed.2d 46; restaurants, Lombard v. State of Louisiana, 373 U.S. 267, 83 S.Ct. 1122, 10 L.Ed.2d 338; public beaches, Mayor and City Council of Baltimore v. Dawson, 350 U.S. 877, 76 S.Ct. 133, 100 L.Ed. 774; municipal golf courses, Holmes v. City of Atlanta, 350 U.S. 879, 76 S.Ct. 141, 100 L.Ed. 776; amusement parks, Griffin v. State of Maryland, 378 U.S. 130, 84 S.Ct. 1770, 12 L.Ed.2d 754; buses, Gayle v. Browder, 352 U.S. 903, 77 S.Ct. 145, 1 L.Ed.2d 114; public libraries, Brown v. State of Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637. A state court judge in Alabama convicted a Negro woman of contempt of court because she refused to answer him when he addressed her as 'Mary,' although she had made the simple request to be called 'Miss Hamilton.' Hamilton v. State of Alabama, 376 U.S. 650, 84 S.Ct. 982, 11 L.Ed.2d 979.

That brief sampling of discriminatory practices, many of which continue today, stands almost as an annotation to what Frederick Douglass (1817-1895) wrote nearly a century earlier:

'Of all the races and varieties of men which have suffered     from this feeling, the colored people of this country have      endured most. They can resort to no disguises which will     enable them to escape its deadly aim. They carry in front the     evidence which marks them for persecution. They stand at the     extreme point of difference from the Caucasian race, and      their African origin can be instantly recognized, though they      may be several removes from the typical African race. They     may remonstrate like Shylock-'Hath not a Jew eyes? hath not a     Jew hands, organs, dimensions, senses, affections, passions? fed with the same food, hurt with the same weapons, subject     to the same diseases, healed by the same means, warmed and      cooled by the same summer and winter, as a Christian is?"-but      such eloquence is unavailing. They are Negroes-and that is      enough, in the eye of this unreasoning prejudice, to justify      indignity and violence. In nearly every department of      American life they are confronted by this insidious      influence. It fills the air. It meets them at the workshop      and factory, when they apply for work. It meets them at the      church, at the hotel, at the ballot-box, and worst of all, it meets them in the jurybox.      Without crime or offense against law or gospel, the colored      man is the Jean Valjean of American society. He has escaped      from the galleys, and hence all presumptions are against him.      The workshop denies him work, and the inn denies him shelter;      the ballot-box a fair vote, and the jury-box a fair trial. He     has ceased to be the slave of an individual, but has in some      sense become the slave of society. He may not now be bought     and sold like a beast in the market, but he is the trammeled      victim of a prejudice, well calculated to repress his manly      ambition, paralyze his energies, and make him a dejected and      spiritless man, if not a sullen enemy to society, fit to prey      upon life and property and to make trouble generally.'

Today the black is protected by a host of civil rights laws. But the forces of discrimination are still strong.

A member of his race, duly elected by the people to a state legislature, is barred from that assembly because of his views on the Vietnam war. Bond v. Floyd, 385 U.S. 116, 87 S.Ct. 339, 17 L.Ed.2d 235.

Real estate agents use artifice to avoid selling 'white property' to the blacks. The blacks who travel the country, though entitled by law to the facilities for sleeping and dining that are offered all tourists, Heart of Atlanta Motel v. United States, 379 U.S. 241, 85 S.Ct. 348, 13 L.Ed.2d 258, may well learn that the 'vacancy' sign does not mean what it says, especially if the motel has a swimming pool.

On entering a half-empty restaurant they may find 'reserved' signs on all unoccupied tables.

The black is often barred from a labor union because of his race.

He learns that the order directing admission of his children into white schools has not been obeyed 'with all deliberate speed,' Brown v. Board of Education, 349 U.S. 294, 301, 75 S.Ct. 753, 756, 99 L.Ed. 1083 but has been delayed by numerous stratagems and devices. State laws, at times, have been encouraged discrimination in housing. Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830.

This recital is enough to show how prejudices, once part and parcel of slavery, still persist. The men who sat in Congress in 1866 were trying to remove some of the badges or 'customs' of slavery when they enacted § 1982. And, as my Brother STEWART shows, the Congress that passed the so-called Open Housing Act in 1968 did not undercut any of the grounds on which § 1982 rests.