The Right to Inherit, Purchase, Lease, Sell, Hold, and Convey a Home

We need to talk about the Constitution. Enough with California and its mixed bag of housing elements, at least for a while. This post will begin a series of discussions about federal law and how housing prohibition came to be—and what we can do about it.

I’d like to keep this simple, but there’s just too much legal history. One hard lesson of this job has been that even dyed-in-the-wool housing activists don’t always believe the Constitution has any relevance to housing, and don’t always know that the concept of “equal protection” comes from the Fourteenth Amendment. Housers might have heard of the Fair Housing Act, but may not understand what it covers or how it’s enforced, let alone why it was thought to be an improvement when it passed in 1968.

We’ll get to the Fair Housing Act in the future. Today, though, let’s start where Richard Rothstein starts in The Color of Law, with an underheralded case called Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968). The case, which remains good law, is a big deal because it affirms a broad reading of the Thirteenth Amendment—the one that abolished slavery—en route to upholding an important federal statute called the Civil Rights Act of 1866.

WHAT’S JONES GOT TO DO WITH IT?

Jones is one of those Supreme Court cases that seems like such an easy call that it’s hard to comprehend its significance: the defendants refused to sell Joseph Jones a home “for the sole reason” that Jones was Black, 392 U.S. at 412, and the Supreme Court held that properly gave rise to a housing-discrimination case. Duh, right?

That was certainly the feeling of the Reconstruction Congress when it enacted the Civil Rights Act of 1866. Also known as “Section 1982,” this landmark statute is still part of today’s U.S. Code. Section 1982 provides that:

All citizens of the United States 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.

42 U.S.C. § 1982; see Jones, 392 U.S. at 412. The Fair Housing Act didn’t yet exist in the mid-’60s, when the Mayer Company refused to sell Jones his home, so he challenged their refusal by bringing a federal action under Section 1982. 

Jones’s lawsuit confronted the federal courts with some sticky questions about Congress’s power to enact the Civil Rights Act of 1866, and what that meant for Jones. Under the Constitution, Congress’s powers are enumerated, which is legalese for “Congress can’t pass a law unless the Constitution gives Congress the authority.” Congress can’t, for example, incorporate a new town in Arkansas—the Constitution doesn’t give it the authority; that’s a job for the State of Arkansas. In practice, most federal statutes today are justified under the Commerce Clause in Article I, which is a story you can read about elsewhere. In Jones, the issue was whether Section 1982 was justified under Congress’s authority to enforce the Thirteenth Amendment. Jones held that it was. 392 U.S. at 437–44.

This matters because the Supreme Court has bungled the Constitution on occasion. Jones corrected a bad chapter in the Thirteenth Amendment’s story.

After the Thirteenth Amendment formally ended slavery in 1865, the country spent decades—still is—grappling with what it means to have abolished its original sin. The Thirteenth Amendment enables Congress to enforce abolition “by appropriate legislation,” and between 1866–75, Congress enacted not one, but several Civil Rights Acts. These acts did not take a narrow view of abolition. Beyond prohibiting the most overt forms of slavery as had been practiced on the most abusive plantations, Congress intended to outlaw the subtler “badges and incidents” of slavery as well. But in The Civil Rights Cases, 109 U.S. 3 (1883), the Supreme Court invalidated the Civil Rights Acts’ various bans on private racial discrimination, undoing Reconstruction and heralding the rise of Jim Crow. This is why, more than a decade after public-school segregation was struck down in Brown v. Board of Education, 347 U.S. 483 (1954), a simple housing-discrimination case still had to be appealed all the way up to the Supreme Court. Jones overruled the Civil Rights Cases, upholding Section 1982—the Civil Rights Act of 1866—as a valid exercise of Congress’s power to root out the “badges and incidents of slavery” pursuant to the Thirteenth Amendment. 392 U.S. at 409 & n.78.

SECTION 1982, THEN AND NOW

While Jones was being argued in the spring of 1968, Congress was debating what would become the Fair Housing Act. Both Congress and the Supreme Court were aware of each others’ deliberations, and the decision was handed down shortly after the FHA became law. See id. at 413–17. Neither Jones nor the FHA limit each others’ scope, or that of Section 1982. Id. Yet after the FHA was passed, litigants mostly stopped litigating Section 1982. The caselaw simply trails off.

Fifty-five years after Jones and the FHA, America’s housing crisis has gotten worse. Although private housing discrimination is still with us, it’s clearly not the only culprit. We can’t solve today’s housing crisis without tackling the ubiquitous public housing discrimination—segregating the apartments from the plantation homes—that the FHA, a product of its time, wasn’t originally meant to address.

Still, federal law expressly protects the right to inherit, purchase, lease, sell, hold, and convey a home. 42 U.S.C. § 1982. Jones holds that Section 1982 “bars all racial discrimination, private as well as public.” 392 U.S. at 413. Good. The Reconstruction Congress that enacted it would never have approved of federal and local bureaucrats colluding to segregate neighborhoods by race, as happened in redlining’s heyday between the 1930s and the 1960s. As The Color of Law shows, the badges and incidents of redlining live on in today’s zoning codes. They invite action under Section 1982. 

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Jones is a Thirteenth Amendment case, but it could have just as well been a Fourteenth Amendment case. Id. at n.5. The Fourteenth is the most important amendment in the Constitution, and we’ll start exploring it in our next post.