The problem is that the law, as currently interpreted, is too narrow; it does not, for example, protect the right to shop, eat out, cash a check, make a withdrawal, or apply for credit free from racial harassment. This means that many of the appallingly common experiences of being discriminated against for doing such things “while Black” are not redressable under Section 1981. And Black business owners have inadequate remedies under Section 1981 for the discrimination they face when they compete for capital and business opportunities—discrimination that contributes to opportunity and wealth gaps, such as the fact that Black-owned businesses generate a mere 1.3 percent of all U.S. sales and that the net worth of a typical Black family is less than one-tenth that of a typical white family.
Wilfred Codrington III: The United States needs a third reconstruction
If Congress were to act, a revitalized Section 1981 could become an invaluable tool for addressing structural racism. The statute’s potential has always been exceptional—but stymied. When the law reached his desk for signature in 1866, President Andrew Johnson, a stubborn racist, vetoed it, fuming that legislating rights for Black people discriminated against whites and violated “our” experience “as a people.” Congress overrode Johnson’s veto, making this “ the first important statute in American history to become law over the president’s objections,” as Foner wrote. But efforts to undermine the law continued.
In the statute’s early years, there were intimations of its transformative potential. African Americans cited the law as the basis for challenging racial discrimination in public accommodations, and the New-York Tribune suggested that the new law be used to challenge criminal sanctions against interracial marriage. In 1867, the chief justice of the Supreme Court, Salmon P. Chase, ruled while “circuit riding” that a contract indenturing a Black woman to a white employer violated the law because the agreement did not stipulate that she must be taught to read, which state law then required for white apprentices. These early inklings of legal possibility were fleeting, though.
The statute suffered devastating blows in the 1870s and ’80s. In a series of cases smoothing the way for Jim Crow laws, the Supreme Court limited the purpose of the Thirteenth Amendment (the constitutional basis for the 1866 Civil Rights Act) to abolishing slavery—not “distinctions of race, or class, or color” more broadly—and ruled that racial discrimination in transportation, stores, hotels, and places of entertainment, in particular, were neither “badges” nor “incidents” of slavery but rather “social rights” that the Thirteenth Amendment did not “adjust.” Indeed, the Court said, “It would be running the slavery argument into the ground to make it apply to every act of discrimination which a person may see fit to make as to the guests he will entertain, or as to the people he will take into his coach or cab or car, or admit to his concert or theatre, or deal with in other matters of intercourse or business.” These rulings undermined efforts to give the 1866 law a broad reading, and demolished Section 1981’s potential.