Category Archives: Thirteenth Amendment

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Jones v. Alfred H. Mayer: Refusal to Make Estate Transaction Due to Skin Color (06/17/1968)

Jones v. Alfred H. Mayer

Did the defendant violate 42 U.S.C. Section 1982 which guarantees equal rights to all citizens making real estate transactions?

Argued: 03/31/1968; 04/01/1968

Decision Date: 06/17/1968

Decision Record: 7-2; yes

Justices Majority: Earl Warren, Hugo Black, William Douglas, William Brennan, Potter Stewart, Abe Fortas, Thurgood Marshall

Justices Dissenting: John Harlan, Byron White

Effect of the Decision

This case upheld clarified that one cannot be discriminated against for their race when making real estate transactions.

In Favor

On the side of Jones, attorney Samuel H. Liberman said, “This case arises on a petition for certiorari to the Eighth Circuit Court of Appeals on a judgment which simply affirmed a holding by the United States District Court for the Eastern District of Missouri dismissing the amended complaint in these actions for failure to state the cause of action upon which relief can be granted.

Therefore, the facts which are well pleaded in the First Amendment complaints set out in the appendix are the facts which we are dealing with.

These facts alleged that the respondents, a group of related corporations and one individual or developers of a subdivision known Paddock Woods in St. Louis County, Missouri.

They also are developers of adjacent subdivisions known as Paddock Estates, Paddock Meadows, Paddock Hills, and Wedgwood and perhaps some others.

They received permission from various estate agencies to build these divisions including Paddock Woods.

They layout the streets and the sewers and the recreation facilities and various other facilities and then they plot out certain lots and they sell houses and lots to the public.

The method of selling is by buildings and display houses of different types on the — at the location of the subdivision.

And then the public looks at the display house and the buyer, if he likes one of the houses, will enter into a contract by which the respondents will build a certain house according to the choice of the buyer on a certain lot.

And when it’s completed, the transfer of the property is then made.

It’s further alleged that the estate in the various governmental subdivisions of the estate are involved with the building of the subdivision both in the approval and the assistance which they give to the builder and from the standpoint of the function — community functions which they delegate to the builder with respect to the government of this community.

The facts out of this case in particular arose from Mr. and Mrs. Joseph Jones, the petitioners went out to the subdivision and saw a house which they wanted to buy and attempted buy it, and it is alleged that the respondents refused to deal with them or to sell them a house solely because Mr. Jones is a Negro.

The question presented has led to certain refusal solely because of the raise of the prospective buyer is in violation of the law of the United States.

In our brief, this question took two forms, firstly, whether the conduct is prohibited by Section 1978 of the revised statutes 42 U.S.C., Section 1982.

Secondly, whether regardless of the statute on the particular facts of the case due to the nature of the subdivision, the developer would be barred from discriminating in excluding Negroes even without a statute because of the amount of state action which would be involved in the building of the subdivision.

Also in our brief, we broke down the question concerning the statute into its interpretation and as to whether if interpreted as barring this kind of conduct by developer whether that would be a constitutional — constitutionally valid statute.

Actually, it has been conceded by the respondents that such interpretation would be constitutional and in fact the court below, the Court of Appeals, Judge Blackmun held in his opinion there was a matter of interpretation of the statute rather than a constitutional question.

So, addressing my first — myself first to the statutory question rather than the constitutional question, we think that the statute by its plain terms bars a builder of a private subdivision from excluding persons from buying and living in that subdivision because of their race.”


Then in opposition, Mayer is represented by attorney Israel Treiman, who says, “The Court has already touched through its questioning on what I believe are some of the most sensitive areas in this entire case especially the questions directed by Mr. Justice White at the very end which I think clearly indicate the profound complications and the very troublesome problems and difficulties that will arise inevitably if this Court should construe Section 1982 as the petitioners and the government and the amici wanted to.

I, speaking of the amici, may it please the Court in the few minutes that I have left, I should like to make few general observations as Your Honors have probably observed.

There are great many amici briefs that have been filed in this case in support of the petitioners and I must confess that when these briefs started coming to my office I was not a little shaken.

And it wasn’t — it wasn’t because — I was disturbed over the fact that with all these many organizations and fine lawyers on one side, I was being left in a somewhat friendless position in this courtroom.

I’ve become sort of accustomed to that back home where even some of my good friends were beginning to look upon me as if I had suddenly become afflicted with leprosy.

What disturbed me, may it please the Court, what gave me real concern was how I was suppose to deal with all of these good briefs and they are excellent briefs especially the two that have been mentioned here.

The — I’m talking now but the amici briefs, one by the government and the other by group of national organizations headed by one that calls itself the National Committee against Discrimination in Housing, which I shall refer to as I have in my brief as the NCADH brief.

And speaking of that brief, may it please the Court, with reference to the statements made by the honorable Attorney General, in regard to the effect that segregation, racial segregation has had upon the life of our country, I want to say here and now, personally I bow to nobody when it comes to concern over the plight of the disadvantaged Negro family.

And may I have this, I have read many articles and books on this subject, but as I told the person who I believe was the principal writer of the NCADH brief, I have now seen anywhere a more powerful, a more eloquent description of the terrible — the terrible condition in plight in which not only the children but the adults of the Negro families find themselves by reason of their difficulty in obtaining decent housing.

So that as to that part of the Attorney General’s argument, as far as that part is concern, I assure the Court that I do not quarrel either with the Attorney General or with any of these good friends of the Court who come into this case.

What disturbs me, Your Honors, is the way in which they think this problem should be solved.

And I must say, since I will have only a minute, as I came into the courtroom this morning for the first time, I saw the words that are inscribed over the portals of this courthouse “equal justice under law.”

I must confess my ignorance, I did not know those words were there.

And it struck me that this perhaps goes to the very heart of this case surely nobody would deny equal justice under the Equal Protection Clause of the Fourteenth Amendment or under Section 1982.

But the other two words are just as important, it seems to me.

It must be under law.

I happen to be a practicing lawyer back home and not a lawyer who assure you, Your Honors, professors to have any great knowledge about constitutional law.

I happen to be what people referred to as the bread and butter type of practicing lawyer.

And while I have that deep sympathy for the conditions that have been described caused by the acute problems of housing, I am also a practicing lawyer.

I have an equal reverence for the orderliness of the law.

And I believe Your Honors that if we are to meet this problem, let us meet it in a way that it’s provided for under our Constitution and under our philosophy of the meaning of law.”


The majority opinion slip was written by Justice Potter Stewart, “Those who opposed passage of the Civil Rights Act of 1866 argued, in effect that the Thirteenth Amendment merely authorized Congress to dissolve the legal bond by which the Negro slave was held to his master. Yet many had earlier opposed the Thirteenth Amendment on the very ground that it would give Congress virtually unlimited power to enact laws for the protection of Negroes in every State. And the majority leaders in Congress — who were, after all, the authors of the Thirteenth Amendment — had no doubt that its Enabling Clause contemplated the sort of positive legislation that was embodied in the 1866 Civil Rights Act. Their chief spokesman, Senator Trumbull of Illinois, the Chairman of the Judiciary Committee, had brought the Thirteenth Amendment to the floor of the Senate in 1864. In defending the constitutionality of the 1866 Act, he argued that, if the narrower construction of the Enabling Clause were correct, then

the trumpet of freedom that we have been blowing throughout the land has given an “uncertain sound,” and the promised freedom is a delusion. Such was not the intention of Congress, which proposed the constitutional amendment, nor is such the fair meaning of the amendment itself. . . . I have no doubt that, under this provision . . . , we may destroy all these discriminations in civil rights against the black man, and if we cannot, our constitutional amendment amounts to nothing. It was for that purpose that the second clause of that amendment was adopted, which says that Congress shall have authority, by appropriate legislation, to carry into effect the article prohibiting slavery. Who is to decide what that appropriate legislation is to be? The Congress of the United States, and it is for Congress to adopt such appropriate legislation as it may think proper, so that it be a means to accomplish the end.

Surely Senator Trumbull was right. Surely Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation. Nor can we say that the determination Congress has made is an irrational one. For this Court recognized long ago that, whatever else they may have encompassed, the badges and incidents of slavery — its “burdens and disabilities” — included restraints upon

those fundamental rights which are the essence of civil freedom, namely, the same right . . . to inherit, purchase, lease, sell and convey property, as is enjoyed by white citizens.

Civil Rights Cases. Just as the Black Codes, enacted after the Civil War to restrict the free exercise of those rights, were substitutes for the slave system, so the exclusion of Negroes from white communities became a substitute for the Black Codes. And when racial discrimination herds men into ghettos and makes their ability to buy property turn on the color of their skin, then it too is a relic of slavery.

Negro citizens, North and South, who saw in the Thirteenth Amendment a promise of freedom — freedom to “go and come at pleasure” and to “buy and sell when they please” 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. At the very least, the freedom that Congress is empowered to secure under the Thirteenth Amendment includes the freedom to buy whatever a white man can buy, the right to live wherever a white man can live. If Congress cannot say that being a free man means at least this much, then the Thirteenth Amendment made a promise the Nation cannot keep.

Representative Wilson of Iowa was the floor manager in the House for the Civil Rights Act of 1866. In urging that Congress had ample authority to pass the pending bill, he recalled the celebrated words of Chief Justice Marshall in McCulloch v. Maryland, 4 Wheat. 316, 421:

Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.

‘The end is legitimate,’ the Congressman said,

because it is defined by the Constitution itself. The end is the maintenance of freedom. . . . A man who enjoys the civil rights mentioned in this bill cannot be reduced to slavery. . . . This settles the appropriateness of this measure, and that settles its constitutionality.”

 Then in dissent, Justice John Harlan wrote, “I am not dissuaded from my view by the circumstance that the 1968 Act was enacted after oral argument in this case, at a time when the parties and amici curiae had invested time and money in anticipation of a decision on the merits, or by the fact that the 1968 Act apparently will not entitle these petitioners to the relief which they seek. For the certiorari jurisdiction was not conferred upon this Court ‘merely to give the defeated party in the . . . Court of Appeals another hearing,’ Magnum Co. v. Coty, or “for the benefit of the particular litigants,” Rice v. Sioux City Cemetery, but to decide issues “the settlement of which is of importance to the public, as distinguished from . . . the parties,” Layne & Bowler Corp. v. Western Well Works, Inc., I deem it far more important that this Court should avoid, if possible, the decision of constitutional and unusually difficult statutory questions than that we fulfill the expectations of every litigant who appears before us.

One prior decision of this Court especially suggests dismissal of the writ as the proper course in these unusual circumstances. In Rice v. Sioux City Cemetery, supra, the issue was whether a privately owned cemetery might defend a suit for breach of a contract to bury on the ground that the decedent was a Winnebago Indian and the contract restricted burial privileges to Caucasians. In considering a petition for rehearing following an initial affirmance by an equally divided Court, there came to the Court’s attention for the first time an Iowa statute which prohibited cemeteries from discriminating on account of race, but which would not have benefited the Rice petitioner because of an exception for “pending litigation.” Mr. Justice Frankfurter, speaking for a majority of the Court, held that the writ should be dismissed. He pointed out that the case presented “evident difficulties,” 349 U.S. at 77, and noted that,

[h]ad the statute been properly brought to our attention . . . , the case would have assumed such an isolated significance that it would hardly have been brought here in the first instance.

This case certainly presents difficulties as substantial as those in Rice. Compare what has been said in this opinion with 349 U.S. at 72-73; see also Bell v. Maryland. And if the petition for a writ of certiorari in this case had been filed a few months after, rather than a few months before, the passage of the 1968 Civil Rights Act, I venture to say that the case would have been deemed to possess such “isolated significance,” in comparison with its difficulties, that the petition would not have been granted.

My Opinion:

In this case, I agree with the majority opinion. Mayer’s refusal to make an estate transaction was a complete violation of the constitution, 42 U.S.C. Section 1982, because he did it as a result of Jones’s skin color. 42 U.S.C. Section 1982 clearly guarantees equal rights to all citizens making real estate transactions. This includes people similar to Jones. There are no exceptions, for the Thirteenth Amendment changed that. Therefore, Mayer was wrong to refuse an estate transaction with Jones merely because of his skin color, for it infringes upon the 42 U.S.C. Section 1982 of the Thirteenth Amendment.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right


Dred Scott v. Sandford: Freedom From Living to Free State (03/06/1857)

Dred Scott v. Sandford

Was Dred Scott a free slave?

Argued: 02/10/1856; 02/11/1856; 02/12/1856; 02/13/1856; 12/14/1856; 12/15/1856; 12/16/1856; 12/17/1856

Decision Date: 03/06/1857

Decision Record: 7-2; no

Justices Majority: Roger Taney, James Wayne, John Catron, Peter Daniel, Samuel Nelson, Robert Grier, John Campbell

Justices Dissenting: John McLean, Benjamin Curtis

Effect of the Decision

This case upheld that a slave was not legally free when they escaped to a free state that prohibited slavery.

In Favor

Dred Scott was represented by attorneys Montgomery Blair and George Ticknor Curtis.


Then in opposition, Sandford was represented by attorney Henry S. Geyer.


The majority opinion slip was written by Justice Roger Taney. He wrote, “Our notice of this part of the case will be very brief, for the principle on which it depends was decided in this court, upon much consideration, in the case of Strader et al. v. Graham, reported in 10th Howard 82. In that case, the slaves had been taken from Kentucky to Ohio, with the consent of the owner, and afterwards brought back to Kentucky. And this court held that their status or condition as free or slave depended upon the laws of Kentucky when they were brought back into that State, and not of Ohio, and that this court had no jurisdiction to revise the judgment of a State court upon its own laws. This was the point directly before the court, and the decision that this court had not jurisdiction turned upon it, as will be seen by the report of the case.

So in this case. As Scott was a slave when taken into the State of Illinois by his owner, and was there held as such, and brought back in that character, his status as free or slave depended on the laws of Missouri, and not of Illinois.

It has, however, been urged in the argument that, by the laws of Missouri, he was free on his return, and that this case therefore cannot be governed by the case of Strader et al. v. Graham, where it appeared, by the laws of Kentucky, that the plaintiffs continued to be slaves on their return from Ohio. But whatever doubts or opinions may at one time have been entertained upon this subject, we are satisfied, upon a careful examination of all the cases decided in the State courts of Missouri referred to, that it is now firmly settled by the decisions of the highest court in the State that Scott and his family upon their return were not free, but were, by the laws of Missouri, the property of the defendant, and that the Circuit Court of the United States had no jurisdiction when, by the laws of the State, the plaintiff was a slave and not a citizen.

Moreover, the plaintiff, it appears, brought a similar action against the defendant in the State court of Missouri, claiming the freedom of himself and his family upon the same grounds and the same evidence upon which he relies in the case before the court. The case was carried before the Supreme Court of the State, was fully argued there, and that court decided that neither the plaintiff nor his family were entitled to freedom, and were still the slaves of the defendant, and reversed the judgment of the inferior State court, which had given a different decision. If the plaintiff supposed that this judgment of the Supreme Court of the State was erroneous, and that this court had jurisdiction to revise and reverse it, the only mode by which he could legally bring it before this court was by writ of error directed to the Supreme Court of the State, requiring it to transmit the record to this court. If this had been done, it is too plain for argument that the writ must have been dismissed for want of jurisdiction in this court. The case of Strader and others v. Graham is directly in point, and, indeed, independent of any decision, the language of the 25th section of the act of 1789 is too clear and precise to admit of controversy.

But the plaintiff did not pursue the mode prescribed by law for bringing the judgment of a State court before this court for revision, but suffered the case to be remanded to the inferior State court, where it is still continued, and is, by agreement of parties, to await the judgment of this court on the point. All of this appears on the record before us, and by the printed report of the case.

And while the case is yet open and pending in the inferior State court, the plaintiff goes into the Circuit Court of the United States, upon the same case and the same evidence and against the same party, and proceeds to judgment, and then brings here the same case from the Circuit Court, which the law would not have permitted him to bring directly from the State court. And if this court takes jurisdiction in this form, the result, so far as the rights of the respective parties are concerned, is in every respect substantially the same as if it had, in open violation of law, entertained jurisdiction over the judgment of the State court upon a writ of error, and revised and reversed its judgment upon the ground that its opinion upon the question of law was erroneous. It would ill become this court to sanction such an attempt to evade the law, or to exercise an appellate power in this circuitous way which it is forbidden to exercise in the direct and regular and invariable forms of judicial proceedings.

Upon the whole, therefore, it is the judgment of this court that it appears by the record before us that the plaintiff in error is not a citizen of Missouri in the sense in which that word is used in the Constitution, and that the Circuit Court of the United States, for that reason, had no jurisdiction in the case, and could give no judgment in it. Its judgment for the defendant must, consequently, be reversed, and a mandate issued directing the suit to be dismissed for want of jurisdiction.”

Then in dissent, Justice John McLean wrote, “We entertain the highest respect for that learned court (the Supreme Court of Michigan), and, in any question affecting the construction of their own laws where we entertain any doubt, would be glad to be relieved from doubt and responsibility by reposing on their decision. There are, it is true, many dicta to be found in our decisions averring that the courts of the United States are bound to follow the decisions of the State courts on the construction of their own laws. But although this may be correct, yet a rather strong expression of a general rule, it cannot be received as the annunciation of a maxim of universal application. Accordingly, our reports furnish many cases of exceptions to it. In all cases where there is a settled construction of the laws of the a State by its highest judicature established by admitted precedent, it is the practice of the courts of the United States to receive and adopt it without criticism or further inquiry. When the decisions of the State court are not consistent, we do not feel bound to follow the last if it is contrary to our own convictions, and much more is this the case where, after a long course of consistent decisions, some new light suddenly springs up, or an excited public opinion has elicited new doctrines subversive of former safe precedent.

These words, it appears to me, have a stronger application to the case before us than they had to the cause in which they were spoken as the opinion of this court, and I regret that they do not seem to be as fresh in the recollection of some of my brethren as in my own. For twenty-eight years, the decisions of the Supreme Court of Missouri were consistent on all the points made in this case. But this consistent course was suddenly terminated, whether by some new light suddenly springing up, or an excited public opinion, or both, it is not necessary to say. In the case of Scott v. Emerson, in 1852, they were overturned and repudiated.

This, then, is the very case in which seven of my brethren declared they would not follow the last decision. On this authority I may well repose. I can desire no other or better basis.

But there is another ground which I deem conclusive, and which I will restate.

The Supreme Court of Missouri refused to notice the act of Congress or the Constitution of Illinois under which Dred Scott, his wife, and children claimed that they are entitled to freedom.

This being rejected by the Missouri court, there was no case before it, or least it was a case with only one side. And this is the case which, in the opinion of this court, we are bound to follow. The Missouri court disregards the express provisions of an act of Congress and the Constitution of a sovereign State, both of which laws for twenty-eight years it had not only regarded, but carried into effect.

If a State court may do this, on a question involving the liberty of a human being, what protection do the laws afford? So far from this being a Missouri question, it is a question, as it would seem, within the twenty-fifth section of the Judiciary Act, where a right to freedom being set up under the act of Congress, and the decision being against such right, it may be brought for revision before this court, from the Supreme Court of Missouri.”

Also in dissent, Justice Benjamin Curtis wrote, “The case before us will illustrate the construction contended for. Dr. Emerson was a citizen of Missouri; he had an equal right to go to the Territory with every citizen of other States. This is undeniable, as I suppose. Scott was Dr. Emerson’s lawful property in Missouri; he carried his Missouri title with him, and the precise question here is whether Congress had the power to annul that title. It is idle to say that, if Congress could not defeat the title directly, that it might be done indirectly, by drawing a narrow circle around the slave population of Upper Louisiana and declaring that, if the slave went beyond it, he should be free. Such assumption is mere evasion, and entitled to no consideration. And it is equally idle to contend that, because Congress has express power to regulate commerce among the Indian tribes and to prohibit intercourse with the Indians, that therefore Dr. Emerson’s title might be defeated within the country ceded by the Indians to the United States as early as 1805, and which embraces Fort Snelling. Am.State Papers, vol. 1, p. 734. We must meet the question whether Congress had the power to declare that a citizen of a State, carrying with him his equal rights secured to him through his State, could be stripped of his goods and slaves and be deprived of any participation in the common property? If this be the true meaning of the Constitution, equality of rights to enjoy a common country (equal to a thousand miles square) may be cut off by a geographical line, and a great portion of our citizens excluded from it.

Ingenious indirect evasions of the Constitution have been attempted and defeated heretofore. In the Passenger Cases, 7 How.R., the attempt was made to impose a tax on the masters, crews, and passengers of vessels, the Constitution having prohibited a tax on the vessel itself, but this Court held the attempt to be a mere evasion, and pronounced the tax illegal.

I admit that Virginia could, and lawfully did, prohibit slavery northwest of the Ohio by her charter of cession, and that the territory was taken by the United States with this condition imposed. I also admit that France could, by the treaty of 1803, have prohibited slavery in any part of the ceded territory, and imposed it on the United States as a fundamental condition of the cession, in the meantime, till new States were admitted in the Union.

I concur with Judge Baldwin that Federal power is exercised over all the territory within the United States, pursuant to the Constitution and the conditions of the cession, whether it was a part of the original territory of a State of the Union or of a foreign State, ceded by deed or treaty, the right of the United States in or over it depends on the contract of cession, which operates to incorporate as well the Territory as its inhabitants into the Union. Baldwin’s Constitutional Views 84.

My opinion is that the third article of the treaty of 1803, ceding Louisiana to the United States, stands protected by the Constitution, and cannot be repealed by Congress.

And, secondly that the Act of 1820, known as the Missouri Compromise, violates the most leading feature of the Constitution — a feature on which the Union depends and which secures to the respective States and their citizens and entire EQUALITY of rights, privileges, and immunities.

On these grounds, I hold the compromise act to have been void, and consequently that the plaintiff, Scott, can claim no benefit under it.”

My Opinion:

In this case, I disagree with the majority opinion. The African Americans should have been treated no differently than the whites. They had the right to be citizens, but they weren’t granted that right. Being a resident in a free state, means that you, yourself are free. The law in the area declares you legally free. If slavery is not permitted in that state, then no slaves exist there either.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right