JONES v. ALFRED H. MAYER CO. 392 U.S. 409 (1968)

This opinion contains important interpretations of a civil rights statute and of Congress's power to prohibit private discrimination. Jones alleged that the defendants had refused to sell him a home because he was black. He brought an action under section 1982 of Title 42, United States Code, a remnant of the civil rights act of 1866, which states in part that all citizens shall have the same right as white citizens to purchase property.

Because Jones relied on a federal law to challenge private discrimination, and because the Supreme Court found that section 1982 encompassed Jones's claim, the case raised the question whether the Constitution grants Congress authority to outlaw private discrimination. The degree to which Congress may do so under the fourteenth amendment has been a recurring unsettled question. (See united states v. guest.) In Jones, Justice potter stewart's opinion for the Court avoided that complex matter by sustaining section 1982's applicability to private behavior under Congress's thirteenth amendment power to eliminate slavery. But even this holding generated tension with the Court's nineteenth-century pronouncements on Congress's power to reach private discrimination.

In the civil rights cases (1883) the Court seemed to concede that the Thirteenth Amendment vests in Congress power to abolish all badges or incidents of slavery. (See badges of servitude.) In that case, however, the Court viewed those badges or incidents narrowly and limited Congress's role in defining them. In striking down the civil rights act of 1875, a provision barring discrimination in public accommodations, the Court commented, "It would be running the slavery argument into the ground" to make it apply to every act of private discrimination in the field of public accommodations. In Jones, however, the Court acknowledged Congress's broad discretion not merely to eliminate the badges or incidents of slavery but also to define the practices constituting them.

Jones thus granted Congress virtually unlimited power to outlaw private racial discrimination. In later cases, Jones provided support for Congress's power to outlaw private racial discrimination in contractual relationships. Section 1981, another remnant of the Civil Rights Act of 1866, confers on all persons the same right "enjoyed by white citizens" to make and enforce contracts, to be parties or witnesses in lawsuits, and to be protected by law in person and property. runyon v. mccrary (1976) held section 1981 to prohibit the exclusion of blacks from private schools, and Johnson v. Railway Express Agency, Inc. (1974) held it to prohibit discrimination in employment.

As Justice john marshall harlan's dissent noted, Jones 's interpretation of section 1982 established it, more than a hundred years after its enactment, as a fair housing law discovered within months of passage of the civil rights act of 1868, which itself contained a detailed fair housing provision. (See open housing laws.) In finding that section 1982 reaches private discrimination not authorized by state law, Jones offers a questionable interpretation of the 1866 act's structure and manipulates legislative history. Whether a candid opinion could support Jones 's interpretation of section 1982 remains a subject of debate.

Theodore Eisenberg
(1986)

Bibliography

Casper, Gerhard 1968 Jones v. Mayer: Clio, Bemused and Confused Muse. Supreme Court Review 1968:89–132.

Fairman, Charles 1971 Reconstruction and Reunion 1864–88: Part One. Volume 6 of The Oliver Wendell Holmes Devise History of the Supreme Court of the United States. New York: Macmillan.