The Supreme Court: Wide-Open Housing

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In the "Reconstruction" that followed the Civil War, the victorious North tried to wipe out every lingering trace of slavery. But three constitutional amendments and more than half a dozen federal statutes could not put an end to prejudice. As Abolitionist Frederick Douglass wrote in 1881: "The colored man is the Jean Valjean of America. He has escaped from the galleys and hence all presumptions are against him."

Still, the liberating laws were there—largely unavailing and unenforced, but there. Last week the Supreme Court reached back across more than 100 years to use one of them to impose a major new rule on the country. The court's concern was racial discrimination in housing—long one of the most emotional of civil rights issues. Only three months ago, housing was the target of a new and hard-fought civil rights law, but the court's decision made the lengthy congressional argument over that law seem largely academic. The long-ignored Civil Rights Act of 1866, said a majority of seven justices, already did the job; it is an unequivocal call for open housing. In blunt, unmistakable language, it "bars all racial discrimination, private as well as public, in the sale or rental of property."

Badges & Incidents. The source of the ruling was something of a surprise—even to the people who brought the case. In 1965, Mr. and Mrs. Joseph Lee Jones had tried to buy a $30,000 house in a new St. Louis development. They were refused because Mr. Jones was a Negro; and they sued the developer. In his search for supporting statutes, their lawyer, Samuel Liberman, came across the 1866 act and tossed it into his brief almost as an afterthought. He thought it was good tactics to try everything. "I figured, 'What have we got to lose?' " What indeed? The court never even got to his other points.

The 1866 statute says very clearly that all "citizens of the U.S. 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." Congress, said Justice Potter Stewart, "meant exactly what it said." And it had the power to say so under the 13th Amendment, which, according to an earlier court decision, had enabled the legislature to abolish "all badges and incidents of slavery." In addition, said Stewart, Congress had not indicated any distinction between private and public acts of discrimination. "So long as a Negro citizen who wants to buy or rent a home can be turned away simply because he is not white, he cannot be said to enjoy 'the same right as is enjoyed by white citizens.' "

As it read the record of the debate that preceded passage of the 1866 bill, the court was persuaded that legislators of the time were well aware of the law's broad implications. Still, said Justice John Harlan in dissent, 100 years ago few legislators really contemplated as much reach as the court has found in the act: "The individualistic ethic of their time emphasized personal freedom and embodied a distaste for governmental interference. It seems to me that most of these men would have regarded it as a great intrusion on individual liberty for the government to take from a man the power to refuse for personal reasons to enter into a purely private transaction."