Clue to Court’s Direction Seen in Rights Case

Eight months after the Civil War ended in 1865, Congress received a series of disturbing reports that the newly freed slaves were being harassed, intimidated and in some instances terrorized by their former owners. In Virginia, for example, a black man was reportedly hanged by his thumbs because he refused to work for his former master.

Such reports triggered an extraordinary--and largely forgotten--era in American legal history. From 1865 to 1876, the Republicans who controlled the Reconstruction Congress enacted sweeping civil rights laws and three constitutional amendments.

This year, in a surprise move, the Supreme Court announced that it wants to take another look at the first major piece of legislation from the Reconstruction Congress: the 1866 Civil Rights Act, which gave blacks equal rights to make contracts, to go to court and to buy and sell property.

The case, which the justices are expected to decide early in 1989, has become the court’s most closely watched civil rights case in years, not so much because of the practical significance of the 19th-Century law as because of what the decision will say about the Supreme Court as reconstituted by President Reagan.

Some civil rights groups fear that the court’s new conservative majority, led by Chief Justice William H. Rehnquist, might set out to discard the last three decades of liberal interpretations of civil rights law.

In their worst dreams, they see a replay of the last century, when a highly conservative Supreme Court gutted most of the civil rights laws and constitutional amendments engineered by the Republican Congress during Reconstruction.

In 1883, for example, the Supreme Court ruled unconstitutional the 1875 Civil Rights Act, which gave blacks the right to be served in restaurants, hotels and theaters and to travel freely on public transportation. Only with the civil rights movement of the 1960s did Congress put an end to the Jim Crow system that the Supreme Court had sanctioned with that decision.

Similarly, civil rights activists fear, the Supreme Court of the 1980s is threatening to undo the civil rights revolution of the 1960s. For a pamphlet explaining the significance of the case now pending before the Supreme Court, the National Lawyers Guild, a black lawyers’ group, chose the title, The Return of Jim Crow: the Bitter Fruit of the Reagan Court.

Scope of Laws Narrowed

The Supreme Court of the 1960s and 1970s gave a broad interpretation to the civil rights laws of the 1960s that banned discrimination in such areas as employment, housing, education and voting. But, in recent years, as Reagan has added conservatives to the court, it has narrowed the scope of some of those laws.

And, with last year’s appointment of Justice Anthony M. Kennedy, President Reagan’s third nominee, the conservatives for the first time hold a clear majority of the nine justices.

The immediate issue posed by the pending case is whether the Congress of 1866 intended to ban all private discrimination against blacks in such matters as contracting for work and buying property. Or, did Congress intend only to ban discriminatory state laws?

In briefs filed with the court, several employer organizations and conservative legal groups said that the broad reading of the 1866 law was wreaking havoc in the business world and should be overturned.

The NAACP Legal Defense Fund, joined by dozens of other civil rights organizations, filed briefs in support of the broad interpretation of the law. Two-thirds of the members of the Senate also filed a brief urging the court to leave the law as it is.

Historians File Brief

The most unusual brief came from seven of the nation’s leading historians of the post-Civil War period. Its chief author was Columbia University historian Eric Foner, author of the recently published “Reconstruction: America’s Unfinished Revolution.”

To understand the law, the historians said, the justices need to understand the Republican Congress of 1866 and its perception of conditions in the South.

When the war ended, the brief says, “Southern whites often used violence to reinstitute discipline and perpetuate a system of de facto slavery.”

From Alabama and South Carolina came reports that blacks were being shot on the roads because they did not have letters from their ex-masters giving them permission to leave. In the towns, blacks were “publicly beaten and whipped” for alleged “insubordination” to whites.

In Mississippi, according to the brief, an organization known as the “black cavalry” was rounding up freed slaves and forcibly returning them to work for their former masters. In Texas and Louisiana, white planters were cheating black sharecroppers of their proper wages.

At the behest of Congress and President Andrew Johnson, Gen. Carl Schurz toured the South in the fall of 1865. His explosive report, which held that the defeated Confederates sought “to preserve slavery in its original form as much and as long as possible,” thoroughly repudiated Johnson’s view that whites were adjusting well to the end of slavery and that no further federal intervention was needed.

Controversy Persisted

For the Republicans who controlled the 39th Congress, this was too much. They believed the Civil War had been fought to end slavery and to give blacks their freedom and dignity. They felt federal laws were essential to end persistent discrimination not only by governmental units but by private individuals.

A moderate Illinois Republican, Senate Judiciary Committee Chairman Lyman Trumbull, pledged on the Senate floor at the beginning of 1866 to enact a civil rights bill “more sweeping and efficient” than any then under consideration. Trumbull said that his bill would “break down all discriminations between black men and white men.”

Trumbull’s bill guaranteed all Americans “the same right in every state and territory to make and enforce contracts, to sue . . . to inherit, purchase, lease, sell, hold and convey real and personal property . . . as is enjoyed by white citizens.” It provided penalties of up to a year in prison and a fine of $1,000, and it gave the federal courts and U.S. attorneys the authority to enforce its provisions.

Constitution Cited

As for the constitutionality of his bill, Trumbull insisted that the 13th Amendment, which abolished slavery, specifically gave Congress the power to enact “appropriate legislation” to enforce it.

The bill cleared Congress overwhelmingly but was vetoed by President Johnson, who said that he would prefer to let white Southerners and newly freed slaves “make adjustments” without federal interference. Congress overrode the veto, enacting the measure into law on April 9, one year to the day after Gen. Robert E. Lee had surrendered at Appomattox.

For more than a century, the law lay unused. Few lawyers in the South would use it to file suits on behalf of blacks. And, after 1876, the federal courts and U.S. attorneys largely ignored civil rights claims.

But, finally, in 1968, the Supreme Court squarely faced the meaning of the 1866 law.

Citing the law, a black man from Missouri named Joseph L. Jones had filed suit in federal court because the builders of a new planned community near St. Louis had refused to sell him a house. A district judge and an appeals court, contending that the law applied only to acts of discrimination by governmental agencies, threw out the suit.

‘Private and Public’

The Supreme Court disagreed and ruled for Jones. “We hold that (the law) bars all racial discrimination, private as well as public, in the sale or rental of property,” wrote Justice Potter Stewart for a 7-2 majority.

“Negro citizens . . . would be left with a mere paper guarantee if Congress were powerless to assure that a dollar in the hands of a Negro will purchase the same thing as a dollar in the hands of a white man,” he wrote. “If Congress cannot say that being a free man means at least this much, then the 13th Amendment made a promise the nation cannot keep.”

Justices John Marshall Harlan and Byron R. White dissented from Stewart’s opinion. Harlan argued that Congress, by setting penalties for persons who discriminate while acting “under color of law, statute, ordinance, regulation or custom,” evidently meant to attack official discrimination, not acts of private persons or companies.

He quoted members of the 1866 Congress, including Sen. Trumbull, to the effect that the law would have “no operation in any state where the laws are equal.” This too, Harlan said, suggested that Congress wanted to bring about equal treatment in the law, not a guarantee that individuals would treat others fairly.

The 1866 law came before the Supreme Court again in 1976. The parents of Michael McCrary sought to enroll him in a private nursery school in Arlington, Va., but the owner, Russell Runyon, refused admission to all black children. The McCrarys sued, saying that their right to “make and enforce contracts” had been abridged on account of their race.

Again, on a 7-2 vote, the Supreme Court agreed. Writing for the court in the case of Runyon vs. McCrary, Justice Stewart said that it was “now well established” that the 1866 law applied to racial discrimination in private contracts.

Justice White dissented again, this time being joined by Rehnquist. White argued that while the law gave blacks the “same right” to make contracts, it did not oblige whites to contract with blacks.

To go further, White said, would give blacks more rights than whites, who, he said, “have no right to make a contract with an unwilling private person, no matter what the person’s motivation for refusing to contract.”

The 1866 law resurfaced earlier this year when a North Carolina woman, Brenda Patterson, said that she was driven out of her job by a campaign of “racial harassment” by her supervisor at the McLean Credit Union. When lower courts threw her suit out, she asked the Supreme Court to support her contention that “racial harassment” on the job violated the 1866 law.

Surprise Announcement

On April 25, shortly after Kennedy became the Supreme Court’s ninth member, he and four other justices issued a stunning announcement. Rather than decide the narrow question posed by Patterson, they wanted to hear an hourlong argument on “whether Runyon (the 1976 case on private schools) should be overruled.”

Since then, the five justices have given no hint of their intentions. Kennedy and Sandra Day O’Connor, who are assumed to hold the two key votes, said little when the case was argued in October. Justice Antonin Scalia, the other Reagan appointee, badgered the attorney for the McLean Credit Union to make a stronger argument for overturning the liberal interpretation of the 1866 law.

Even if the court overruled the Runyon decision, strong civil rights laws of the 1960s still would protect blacks against most forms of blatant discrimination. But such an outcome would leave civil rights activists unsure of where the Supreme Court might strike next.