Enforcement Act 1866 - draftw

 

“The tenant agrees not to permit the premises to be used or occupied by any person other than members of the Caucasian race, but the employment and maintenance of other than Caucasian domestic servants shall be permitted.” —Levittown Corporation Lease (1948)

 

The same language was incorporated into the deeds of the 17,000 houses built by the Levitt family in Levittown and abutting East Meadow.
Those homes - $7,000 when my parents - both Navy vets bought via a VA insured, zero points mortgage - sold forty years later for ten times that.
Only Caucasians gained such equity.  Levitt - who was Jewish - thought Jews and Christians should not mix, but deemed Jews to be honorary Caucasians.
Anyone of African descent - slave, freeman, or immigrant - was barred from purchase or residency.
The Enforcement Act of 1866 was a broad prohibition of ethnic discrimination.  It provided, in relevant part:
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> citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, . . . 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 of all laws and proceedings for the security of person and property, as is enjoyed by white citizens.

  Passed under the 13th Amendment, it was a dead letter until Jones v. Alfred Mayer Co. in 1965.  It survives in substantial part as 42 USC 1982.

The 14th Amendment was designed to bind the reconstructed states to the same principles.  But in 1875 Joseph Bradley, a New Jersey railroad lawyer elevated to the Supreme Court, sitting as a Circuit judge overturned the murder convictions of a dozen men who as part of a white militia murdered 120 African American men defending the Colfax, Louisiana Courthouse.  The convictions were set aside on the grounds that such crimes committed by private persons were beyond the reach of the 14th Amendment.  Thus was born the state action doctrine.

That was quite a surprise because Bradley had in 1871 personally advised then District Judge Samuel Miller (later an Associate Justice) that:
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>> the XIVth amendment not only prohibits the making or enforcing of  laws which shall abridge the privileges of the citizen; but prohibits the states > from denying to all persons within its jurisdiction the equal protection of > the laws. Denying includes inaction as well as action. And denying the > equal protection of the laws includes the omission to protect, as well as  the omission to pass laws for protection.

But when the Cruikshank cases got to the full Supreme Court the state action  requirement was embraced. Convictions were reversed on the ground that the
United States' jurisdiction did not extend to such local crimes.    See James Gray Pope - Snubbed Landmark.   

Not until the Emmett Till Act, passed two years ago did the national government have explicit authority to punish racially or otherwise discriminatorily motivated crimes of violence.  But even there the government must prove some interstate element such as crossing state lines.

So where are we now?  Clarence Thomas, in Missouri v. Jenkins  finds that  "a]s with any inherent judicial power, however, we ought to be reluctant to approve its aggressive or extravagant use, and instead we should exercise it in a manner consistent with our history and traditions."    He renounces " extravagant uses of judicial power that] are at odds with the history and tradition of the equity power and the Framers' design. The available historical records suggest that the Framers did not intend federal equitable remedies to reach as broadly as we have permitted."

So as Jim pointed out  the statute of limitations is short.  But the Court's memory is long - as the majority binds itself to the inventions of the founding generation which accommodated itself to the

system of chattel slavery.  Must we do the same?