Section 1981 has been on the books for more than 150 years. But its promise has never been fulfilled.
U.W. Clemon, Civil rights attorney
Joshua Karsh, Civil rights attorney
Cyrus Mehri, Civil rights attorney
Brady-Handy photograph collection / Library of Congress / AP
As America reckons with its history of racial injustice, systemic inequalities, and white supremacy, perhaps more profoundly today than at any time since Reconstruction, Congress should take a look at the nation’s oldest federal civil-rights law. That law, the Civil Rights Act of 1866, could easily be made into a much more powerful tool against structural racism.
The key first section of the law (known today as Section 1981) was a watershed in 1866. It legislated, for the first time, that citizenship belongs to persons “of every race and color” and that all citizens “shall have” the “same” right “to make and enforce contracts” and to “the full and equal benefit of all laws … as is enjoyed by white citizens.” In the words of the Pulitzer Prize-winning historian Eric Foner, this egalitarian expansion “represented a remarkable innovation”: Up to the point of the law’s enactment, “the concept of ‘whiteness’ existed in the law as a mark of privilege”; after its passage, the civil rights of white Americans were supposed to become “a baseline, a standard that applied to all citizens.” But that’s not the way things have turned out. More than 150 years later, Section 1981’s promise remains unfulfilled. By updating the law, Congress could fix that.
The problem is that the law, as currently interpreted, is too narrow; it does not, for example, protect the right to shop, eat out, cash a check, make a withdrawal, or apply for credit free from racial harassment. This means that many of the appallingly common experiences of being discriminated against for doing such things “while Black” are not redressable under Section 1981. And Black business owners have inadequate remedies under Section 1981 for the discrimination they face when they compete for capital and business opportunities-discrimination that contributes to opportunity and wealth gaps, such as the fact that Black-owned businesses generate a mere 1.3 percent of all U.S. sales and that the net worth of a typical Black family is less than one-tenth that of a typical white family.
If Congress were to act, a revitalized Section 1981 could become an invaluable tool for addressing structural racism. The statute’s potential has always been exceptional-but stymied. When the law reached his desk for signature in 1866, President Andrew Johnson, a stubborn racist, vetoed it, fuming that legislating rights for Black people discriminated against whites and violated “our” experience “as a people.” Congress overrode Johnson’s veto, making this “ the first important statute in American history to become law over the president’s objections,” as Foner wrote. But efforts to undermine the law continued.
In the statute’s early years, there were intimations of its transformative potential. African Americans cited the law as the basis for challenging racial discrimination in public accommodations, and the New-York Tribune suggested that the new law be used to challenge criminal sanctions against interracial marriage. In 1867, the chief justice of the Supreme Court, Salmon P. Chase, ruled while “ circuit riding “ that a contract indenturing a Black woman to a white employer violated the law because the agreement did not stipulate that she must be taught to read, which state law then required for white apprentices. These early inklings of legal possibility were fleeting, though.
The statute suffered devastating blows in the 1870s and ’80s. In a series of cases smoothing the way for Jim Crow laws, the Supreme Court limited the purpose of the Thirteenth Amendment (the constitutional basis for the 1866 Civil Rights Act) to abolishing slavery-not “distinctions of race, or class, or color” more broadly-and ruled that racial discrimination in transportation, stores, hotels, and places of entertainment, in particular, were neither “badges” nor “incidents” of slavery but rather “social rights” that the Thirteenth Amendment did not “adjust.” Indeed, the Court said, “It would be running the slavery argument into the ground to make it apply to every act of discrimination which a person may see fit to make as to the guests he will entertain, or as to the people he will take into his coach or cab or car, or admit to his concert or theatre, or deal with in other matters of intercourse or business.” These rulings undermined efforts to give the 1866 law a broad reading, and demolished Section 1981’s potential.
For the next almost 100 years-given the Supreme Court’s restrictive view that the statute did not apply to discrimination by private (nongovernmental) actors-Section 1981 fell into near obsolescence. In 1968, however, the Supreme Court resuscitated it, discarding the notion that key parts of the 1866 Civil Rights Act (including Section 1981) do not prohibit private discrimination. But the Court revived the statute grudgingly and over dissents: In 1976-more than 20 years after Brown v. Board of Education -two justices voted against, and two more expressed reservations about, enforcing Section 1981 against private schools for denying admission to African American children. And in short order, a majority of the Supreme Court then took new steps to cut back Section 1981 again.
In 1980, a group of Black engineers brought suit against a union and several trade associations under Section 1981. They wanted access to a hiring-hall system and an apprenticeship program that furnished workers to employers, which, although seemingly neutral, operated to exclude minority operating engineers. The Supreme Court rejected the engineers’ claim, holding that the application of Section 1981 to anything except “purposeful” or “intentional” discrimination would be “incongruous.” Justice Thurgood Marshall and Justice William J. Brennan dissented, excoriating the majority for ignoring the “broad and unqualified” language of Section 1981, which neither contains nor suggests an intent requirement, and for “shutting its eyes to reality.” As Justice Marshall explained, racial discrimination is no less devastating when “equal opportunities are denied through cleverly masked or merely insensitive practices, where proof of actual intent is nearly impossible to obtain.”
More setbacks followed. In 1989, the Supreme Court handed down a new series of decisions severely restricting Section 1981 (and the 1964 Civil Rights Act). In the Patterson case, the Court ruled that Section 1981’s guarantee of equal rights “to make and enforce contracts” stops the moment a contract is established. The statute protected, the Court said, a Black woman’s equal right to apply for a job-but gave her no protection against on-the-job racial harassment once she was hired. As Justice Brennan put it in his dissent, “What the Court declines to snatch away with one hand, it takes with the other.” Fortunately, Congress responded to that assault by enacting the Civil Rights Act of 1991, specifying that Section 1981 applies to on-the-job racial harassment. But then just this year, in the Comcast case, the Supreme Court dealt the statute a new setback, this time ruling that a plaintiff suing under Section 1981 must prove “but for” causation, meaning that race was the key factor behind a decision, rather than a “motivating” factor, which played some role. That makes proving Section 1981 claims much more difficult.
Section 1981 has been on the books for more than 150 years. But its promise has never been fulfilled. The courts keep thwarting it, and the statute is now in disrepair. It’s not a match for racism today. If this nation is committed to reforming its legal system so that Black lives, dreams, and struggles matter, then amending Section 1981 should be a top priority.
Specifically, Congress should make a series of amendments to Section 1981, three of which might be the most important. First, Congress should amend the statute to correct the courts’ unjustifiably narrow interpretations of its scope-by adding language to make unmistakably clear that the statute’s guarantees of equal rights “to make and enforce contracts” and to “full and equal benefit” encompass a guarantee of “service and treatment” without regard to race. Second, to make the statute a match for structural racism, Congress should also amend it so that, like other statutes, it prohibits both intentional racial discrimination and acts, practices, and policies that have the effect of unjustifiably creating or perpetuating racial disadvantage-belatedly vindicating Justice Marshall’s dissent in the engineers’ case. Intention isn’t the only thing that matters when eradicating racism. Impact does too. Third, Congress should overrule the Supreme Court’s most recent assault on Section 1981 and amend the statute to clarify that it forbids economic decisions “motivated” by race, not just those in which race is a decisive factor.
Section 1981 pioneered civil-rights legislation, but its coverage has never matched its promise or even its plain text. Today, the country is in a moment of unusual public engagement, comparable to the 1860s and the 1960s (the First and Second Reconstructions), which may make structural transformation especially possible. The country needs a Third Reconstruction, and modernizing Section 1981 should be at the top of the agenda.
Originally published at https://www.theatlantic.com on August 7, 2020.