Jones v. Alfred H. Mayer Company – Oral Argument – April 02, 1968

Media for Jones v. Alfred H. Mayer Company

Audio Transcription for Oral Argument – April 01, 1968 in Jones v. Alfred H. Mayer Company

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Earl Warren:

Joseph Lee Jones et al., versus Alfred H. Mayer Company et al.

Mr. Treiman, you may continue with your argument.

Israel Treiman:

Mr. Chief Justice and may it please the Court.

I should like to pass now as quickly as possible to what I regard as the pivotal points of this case.

And I should like to consider those points in two categories corresponding to the two grounds on which the petitioners and the major briefs, that is the Government brief and the NCADH brief, and I must say two or three others, claimed that the District Court was wrong in dismissing the claim.

And that the petitioners are entitled to recover on the basis of the allegations set forth in their complaint.

Now, taking up the first claim, the first ground, which has to do with this Civil Rights Act of 1866 or rather that portion of it which appears today in Section 1982 of Title 42 of United States Code which incidentally the Government and its brief refers to by its revised statute designation of Section 1978.

Here, Your Honors, we deal with a question of pure statutory construction.

And I should like to emphasize that, particularly in view of the question that I believe Mr. Justice Fortas asked of counsel for the petitioners yesterday.

Mr. Justice Fortas, as I recall asked counsel who was then discussing, I believe the constitutionality of this Section under the Thirteenth Amendment whether one could not presume that the respondents would take the position that this Section owe its constitution of validity to the Fourteenth Amendment rather than the Thirteenth.

And as I recall, Counsel for the petitioners and I’m sure there was no intention or whatsoever on his part to put the respondent in an incorrect position or mislead the Court.

Counsel for the petitioners said, yes, he would presume that our position would be, that this Section owes its life, owes its constitutional life, you might say to the Fourteenth rather than the Thirteenth Amendment.

It seems therefore that the repetition on the emphasis with which I thought, I had made it clear in my brief that we were not concerned with the constitutionality of this Section.

That therefore it mattered not to us whether it should be regarded as rooted in the Thirteenth Amendment or the Fourteenth Amendment, escaped the attention of counsel for the petitioners.

But, as Your Honors will recall in connection with another question counsel for the petitioners did say that we had conceded the constitutionality of this Civil Rights Act which is true.

And it’s for that reason that in our brief, we open up by saying that one of the three questions which the petitioners present as questions presented in this case maybe eliminated.

And that question in the petitioner’s brief was whether the — whether Section 1982 is constitutional.

We are not questioning the constitutionality of that Section.

What are we questioning then?

We’re questioning the meaning of that Section.

It is no matter of congressional power.

But at the end of the Thirteenth or the Fourteenth or any other provision of the constitution, it isn’t a question of whether had Congress in 1866 passed an Act which was directed against individual conduct whether Congress thereby was exercising a valid power either under the Thirteenth or the Fourteenth Amendment.

That incidentally maybe a question that will be raised if Congress should pass a fair Housing Bill, of course, because under your customary fair housing bill, it’s the individual owner or seller who is prohibited from discriminating of that may raise a question as to whether under Section 5 of the Fourteenth Amendment the enabling Section or Section 2 of the Thirteenth Amendment.

Congress has the power to enact legislation of this kind.

That is not the question here.

So, I come to what I think is the crucial question.

With respect to this statute that has been made so mush of that the honorable Attorney General relied so heavily on yesterday.

This statute has some very simple words, I think.

It’s a question what those words mean.

And if you kept down to what I think are the key words, what are they?

Israel Treiman:

It says, “Every person shall have the same right to buy property as is enjoyed by white citizens”.

What does that mean?

What does the word “right” in that sentence mean?

Does it mean right in the sense of legal ability, legal competence to buy, own, and incidentally inherit?

That word is also used in the statute; property and self property.

Or does it mean something more than that?

Doesn’t mean something that is not so much related to the status of the — or the position of the buyer as it is to the seller, to the conduct of a seller, something that is not just a matter of right but of matter of duty, a duty imposed upon the seller.

Hugo L. Black:

Are you talking about 1981 —

Israel Treiman:

1982 Your Honor.

Hugo L. Black:

1982?

Israel Treiman:

1982 which is the Section involved here or 1978 of the revised statutes.

That is a portion by the way, a portion of the original Civil Rights Act.

You’ll find that portion in the first Section of the original Act which had a number of Sections in it.

Well now the petitioners in this case claimed that this Section is directed and was intended to be directed against the seller.

That it didn’t simply mean right in the sense of right by law legal competence.

And in order to prove — we of course take the position that this Section should be construed as being in confined to laws or official action of some kind which say that a Negro shall not have the same right as a white citizen.

And it was — it cannot be and should not be construed as being aimed, that individual, the individual behavior of a seller.

Now in order to prove that its construction is correct, the petitioners and the writers of the NCADH brief, NCADH brief and that particularly the Government, I say particularly the Government for a reason which I’ll mention shortly, insist on taking us back to the year 1866, to the early part of the year 1866, on the 39th Congress enacted this Section.

And I must say, Your Honors, that when I saw in the Government’s brief, the historical materials, the — not secondary but primary source materials on which apparently the Government claimed its construction would be justified.

I shuddered a little bit because it meant that I would have to indulge in some historical research.

And I do not profess to be expert in delving into historical materials but I felt that as a lawyer, and especially since the Government gave me the specific leads, it blueprinted these sources specifically the materials which it said would prove that that was the intention of Congress in 1866, and so I went to these sources.

Now, what were they?

Now, I’ll make this as brief as possible.

The Government claims that if you consult the statements, the speeches made in Congress, the 39th Congress, the speeches of the sponsors of this Section — of this Act of 1866, the speeches of the opponents of the Act, and one other statement, the statement of President Andrew Johnson, when he vetoed this bill, the reasons that he gave for vetoing the bill.

You will find says the Government that the bill must have been intended to be directed against individual action.

I must say since I mentioned President Johnson’s veto message in order that the Court may follow me in connection with another matter which I shall presently mention, a very important matter which does involved a matter of comparing dates.

This Act of 1866 was first enacted on March 13, 1866.

President Johnson vetoed.

It was then reenacted over the President’s veto on April 9, which is a date usually given as a date of enactment of this Act of 1866.

Now, I went into the statements, the speeches made in the congressional record.

Israel Treiman:

The references are all given in the Government’s brief.

It was not known by the way as a congressional record that — yes, they seemed congressional globe.

And I took the statements of the chairman of the judiciary committee of the House of the Senate.

And I took the statements, the speeches; I read them all, of the sponsors of the bill, the people who supported the bills in both bodies of Congress.

I then went to the opponents of the bill and I got their statements.

And I have set forth in my brief, department passages from the statements of all of those Congressmen.

And then I went to President Johnson’s veto message.

And I have set forth in my brief the pertinent passage from his message.

All of which I submit Your Honors overwhelmingly, convincingly, proved that the bill was never intended.

This Civil Rights Act of 1866 was never intended to be directed at anything but laws, legislation.

And then I went to the other sources, the second source that the Government set, the second document on which it said it would be — could be shown that this bill was intended not to be directed against discriminatory laws but individual conduct and what was that?

Now, this is quite interesting.

The Government says that there are two documents, a Senate executive document and a House executive document, which will prove that in all of the Black codes that were enacted after the Civil War, some of them maybe before.

By the time Congress got to deliberating on this Act, all disqualification of Negroes to own property had been removed.

Now, this is quite a statement.

It’s in the Government’s brief.

I think it reads — it appears that in none of the Black codes in the early part of 1966 was there any disqualification left to the Negro from owning property?

I then went to these two documents and what were they?

Both of these documents contained, each contains a report.

A report prepared by the then Secretary of State Mr. Stewart under the direction of President Johnson for submission to Congress.

So that Congress would know what was going on so far as discriminatory legislation was concerned, discriminatory as against the Negro of course.

I must say I was dismayed of what I found in the light of what the Government asserts.

I found that according to that report which incidentally Your Honors adheres where that date becomes important in connection with the date of the passage of this bill.

This report is dated May 22, 1966, which was after the originally enactment of the bill as well as its reenactment following President Johnson’s veto.

It says that in all — it let — it reviews a number of the Southern States.

And it says that in all of those states with two exceptions, the disqualifications of the Negroes still remain.

It points it out very clearly and I will presently show how.

Apparently, what happened was and in each of these states, a state convention was called, as this is of course familiar Post Civil War history.

A state convention was called by the provincial Governor of the state appointed by President Johnson, Andrew Johnson.

The convention was called and of course it was completely dominated by the Northerners and their Southern sympathizers.

Israel Treiman:

And so, there was no difficulty whatsoever in getting resolutions adopted that would be in line with Northern feelings.

In each of these states says this report, in each of these states, first, there was a resolution adopted, proclaiming that there would be no more slavery in that state.

Then it was followed in — I think every case by another resolution.

And that second resolution called upon the chairman of the convention to appoint a committee or a commission that would come in with a set of recommended laws, revisions of the then existing state laws in order to bring the state laws into conformity with the Thirteenth Amendment, with the emancipation situation.

And what happened?

According to this report, most of these cases such a committee was appointed.

In several of the cases, several of the states, the committee actually went to work.

And there is set forth in the report a set of statutes in which, of course, all disqualification of the Negro was eliminated.

But this was a set of statutes which the committee, the commission, and the convention resolved, should be recommended for enactment by the local legislature.

And what does the report say?

Except in two cases, Texas and Georgia as of the date of this report, no such legislation has yet been enacted.

And interestingly enough, even in Texas and Georgia which had changed their laws and had removed disqualification.

When did that take place?

Not before this bill was passed.

In one case it took place several weeks but in both cases, it took place after the first enactment of the bill.

And in one case, it took place before its reenactment but certainly after the originally enactment of this bill.

For the Government therefore to say that when Congress was debating, considering this bill, there was no need to do anything about discriminatory laws from these black codes to me is astonishing.

It’s contradicted by the evidence I submit.

And furthermore, Your Honors, if you want what I say in my brief, it’s probably the best succinct piece of evidence on that point that you would want.

It’s that of Justice Wayne who in that very year was deciding the case sitting as a Circuit Justice.

He was deciding the case of U.S. versus Rhodes.

And in the course of his opinion, he makes the statement, I quote it in my brief, that as soon as the Thirteenth Amendment was passed, there begun a course of legislative oppression, legislative oppression through this Black codes of course.

And that this statute obviously, I don’t know whether to use the word “obviously or undoubtedly”, was enacted to curve that course of legislative oppression.

There you have the real purpose of the statute.

Law, discriminatory law is not an individual conduct.

Now, passing from the context, the setting in which the Act was enacted, I’m looking at what’s happened to this Act.

After all it’s over a hundred years, this Act has been existence.

The natural question is, why hasn’t it been used before in a situation of this kind?

Why hasn’t it used before in a situation where a discriminatory law was not involved but discriminatory conduct?

Earl Warren:

Mr. Trieman, what did the sponsors of the bill say on the floor of Congress —

Israel Treiman:

Set forth in my brief, Your Honor the —

Earl Warren:

That’s right (Voice Overlap) —

Israel Treiman:

Would you like for me to read it?

Earl Warren:

True but —

Israel Treiman:

They —

Earl Warren:

— did they assert anything on this particular issue that you’re talking about now?

Israel Treiman:

Specifically —

Earl Warren:

I beg your pardon?

Israel Treiman:

Specifically, in fact —

Earl Warren:

What?

Israel Treiman:

— the times they were asked.

Are you intending to go into our states and make a criminal code directed against individuals and the answer was no, not at all.

In those states where your laws do not disqualify this statute will have no effect.

Specifically, they say that.

And I have the quotations in my brief.

And I have those particular passages in bold type about eight -10 pages of it.

Earl Warren:

Well, is that an answer to this — to what the Government contends here?

Israel Treiman:

Yes, yes.

The Government says that —

Earl Warren:

This is — this doesn’t say anything a criminal statute?

Israel Treiman:

Well, but the point is that —

Earl Warren:

This says they have the right to —

Israel Treiman:

To have what?

Earl Warren:

To — they — this says they have the right to buy or to lease and so forth.

Israel Treiman:

That’s right.

And as I see it, Mr. Chief Justice, the Government says, well, that word “right” means — I think that is Mr. Liberman said yesterday has to do with the extension which you can enjoy the right.

It isn’t only a matter of legal right of right by law.

It’s a matter of whether you can get somebody else, an unwilling seller whether you can compel him to sell to you because he is willing to sell it to somebody else who is not a Negro.

So it’s a question of whether this statute is directed against laws only —

Earl Warren:

Yes, yes I understand that.

Earl Warren:

But is there any specific language that you can point to by the sponsors of the bill which says this is not directed against the individual but is directed against the states?

Israel Treiman:

I think so Your Honor, and I have this passages —

Earl Warren:

Well, could you point it out —

Israel Treiman:

Yes, yes.

Earl Warren:

— to me in your brief?

Israel Treiman:

I’ll see if I can get it immediately.

Potter Stewart:

Page 14 in your brief?

Israel Treiman:

Pardon?

Potter Stewart:

Page 14 of your brief?

Israel Treiman:

Yes.

Earl Warren:

14?

Israel Treiman:

Yes, the part in bold type.

In an — if an offense is committed against a colored person simply because he is colored in a state where the law affords him the same protection as if he were white, this Act neither has no — or was intended to have anything to do with this case.

Abe Fortas:

Now, was that addressed to this specific Section as to 1982 or to other parts of the bill than before the Congress?

Israel Treiman:

I didn’t get your question Mr. Justice.

Abe Fortas:

Was that remark addressed to this specific Section which we now call 1982 —

Israel Treiman:

It wasn’t (Voice Overlap) —

Abe Fortas:

— or was it addressed to the statute as a whole — bill as whole or to other parts of it?

I know for example that there’s a reference in the preceding sentence that you have quoted in your brief to the words under color of law.

Israel Treiman:

Yes.

Abe Fortas:

Now, those words don’t appear, do they in 1982?

Israel Treiman:

That question is not easy to answer, Mr. Justice Fortas because —

Abe Fortas:

Well, it maybe a critical question because the legislative material that you are using in your brief may apply to 1982 or may apply to other provisions of the bill.

That’s what makes this inquiry so difficult —

Israel Treiman:

I agree.

Abe Fortas:

— and so confusing.

Israel Treiman:

I agree, I cannot say confidently that the Congressman who made that statement had in mind only that portion of it which is today 1982 or other portions.

And I’m well aware Mr. Justice Fortas that the phrase under color of law appears in another part of the Act, yes.

Earl Warren:

Is there any other language on the part of the sponsors that you rely on?

Israel Treiman:

On page 15.

Israel Treiman:

In the statement of Representative Wilson, if the states would all observe the rights of our citizens, there would be no need of this bill.

And then later on he speaks of laws barbaric, nothing said about individual conduct.

Earl Warren:

Well, again he’s talking about the whole bill, aren’t they?

Israel Treiman:

I believe he was but after all, that bill included this Section.

Hugo L. Black:

Is it your argument that the law would apply to Missouri if Missouri had laws — discrimination but that since Missouri has no laws in discriminating, it does not apply in Missouri, is that your argument?

Israel Treiman:

In effect I suppose it would be so far as this Section is concerned.

Now that — not under the Fourteenth Amendment —

Hugo L. Black:

That the —

Israel Treiman:

Yes.

Hugo L. Black:

Operation of the law depends then upon what — what are the laws of the state.

Israel Treiman:

Laws, ordinances, official regulations, official conduct, yes.

Hugo L. Black:

This would seem to indicate to the minds of some, they had an idea that would apply to those states that had so-called Black Codes, but did not apply to any other state?

Israel Treiman:

Black Codes —

Hugo L. Black:

Is that what you’re arguing?

Israel Treiman:

Black Codes that had disqualifications and some of the Black Codes did not, yes, yes.

In fact I think that’s —

Hugo L. Black:

So that the law would change, federal law would change according to the — what the law in the paper?

Israel Treiman:

Well, I would say that an action under that law would not be possible in a state that has no discriminatory laws, yes.

That’s it precisely.

Hugo L. Black:

An action under it but it refers to rights?

Israel Treiman:

Yes?

Hugo L. Black:

Well, is that in (Voice Overlap) —

Israel Treiman:

In the sense of a law.

Hugo L. Black:

Is that inapplicable to a state that does not have such laws?

Israel Treiman:

I would think if there are no laws, no regulations, there would be no action under this, under this particular —

Hugo L. Black:

There’d be no action but — because there’d be no need for action perhaps?

Israel Treiman:

(Inaudible)

Hugo L. Black:

But —

Israel Treiman:

Well, there are —

Hugo L. Black:

Does that change the language which says they shall have their right, somebody shall have their right — a citizen shall have the right?

Israel Treiman:

Does it change the language?

Hugo L. Black:

Yes, does it make that ineffective for a state to — if it have laws which do provide protection?

Israel Treiman:

But where the protection is not actually enforced because some individuals choose to be discriminatory.

Hugo L. Black:

No.

Israel Treiman:

Is that what you mean?

Hugo L. Black:

No, that’s part of it?

Israel Treiman:

Yes.

Well, I would say that’s right.

I would say he’d have to go elsewhere for his remedy but not under this Section.

Hugo L. Black:

Well, the Section would become inoperative then.

Israel Treiman:

It’s a proclamation of rights, Your Honor, as many scholars have pointed out —

Hugo L. Black:

Well, it’s a proclamation of right which is a legal right, isn’t it?

Israel Treiman:

Yes, yes.

Like some — like the Fourteenth Amendment —

Hugo L. Black:

Somebody has rights and who is this somebody?

Israel Treiman:

Well, I believe that the answer to that is the same that should be given and I’d intend to give when I discussed the Fourteenth Amendment in its bare terms.

Hugo L. Black:

Now, what does this statute say?

Israel Treiman:

It merely says —

Hugo L. Black:

Who has that right?

Israel Treiman:

It merely says that there is a right not to have a law.

Hugo L. Black:

It says all the citizens of the United States shall have the same right and who’s they’re talking about?

Is that talking about a state or citizens of a state?

Israel Treiman:

I would say that the right there and I don’t deny, Mr. Justice Black.

We do get into a realm here that to some extent may depend upon semantics upon the objective one has in mind in trying to interpret this Section.

I can only go by what the Congressman said back on those days by what President Johnson said in his veto message when he said that in his opinion this would change the laws of the states.

And he didn’t want Congress to meddle with local laws.

And I would say the same thing same conclusion must be reached in reading Justice Wayne’s opinion.

Hugo L. Black:

Well, wasn’t this evidently intended to change the law of the state?

Wasn’t that the very purpose of the statute?

Israel Treiman:

I agree, of course in those states where they have discriminatory laws.

Hugo L. Black:

But I find that — here’s my trouble with your argument up to this time.

I find nothing to indicate that this right which was intended to be concurred upon the circumstance was automatically withdrawn on the passage of a law by the state just take care of that same thing.

Israel Treiman:

I’m not so sure I would say it would be automatically rid — gone, it’s there hovering all the time in the moment the state does pass a law.

This is discriminatory.

That Section could be invoked.

Hugo L. Black:

A federal law which is effective only if the state doesn’t have a law of the same kind.

Israel Treiman:

Only if the state passes a law in violation of that Section and I might at this point, Your Honor, perhaps call your attention to this statement in —

William O. Douglas:

In Missouri, could a group organize this association or corporation under state law, get a permit to bill the segregated housing project?

Israel Treiman:

That would depend on who the group is —

Potter Stewart:

Well, the group —

Israel Treiman:

If the group is in any way financed by any kind of state agency —

William O. Douglas:

Unless, they go to the corporation counsel to get a permit to build and construct the segregated housing facilities, would that be possible?

Israel Treiman:

If they go to the commission, the plan commission to get approval of their subdivision plan?

William O. Douglas:

Well, no, the corporation commission they want to cooperate in order to bill segregated housing project.

Could they be incorporated for that purpose?

Israel Treiman:

You mean in the corporate purposes, it would be set forth that they were going to have (Voice Overlap) —

William O. Douglas:

That is the purpose.

Yes.

The purpose is to bill segregated housing (Voice Overlap) —

Israel Treiman:

This would depend on the attitude of the Secretary of State when he reads the proposed articles of (Voice Overlap) —

William O. Douglas:

Alright, he reads it and then he issues a certificate, would that be — are you then in the middle of a constitutional (Voice Overlap) —

Israel Treiman:

I would say I think you’re getting pretty close to Shelly versus Kraemer.

You’re getting pretty close to action by an official.

If he approves Articles within the corporation that explicitly state that this will be segregated, yes.

I would say this is official conduct.

It’s giving the sanction of the state to something that’s clearly unconstitutional, yes I would.

Thurgood Marshall:

Do you agree that this area could qualify as a city of the fourth class?

Israel Treiman:

On the basis of population, I suppose it would.

Any group of individuals in a certain area under our state statutes, now I presume this is true all over.

If they have a certain number of people can qualify for a certain type of incorporate —

Thurgood Marshall:

Well, assuming they did.

Israel Treiman:

They incorporated —

Thurgood Marshall:

As of (Voice Overlap) —

Israel Treiman:

And it was a (Voice Overlap) —

Thurgood Marshall:

Setting the fourth class and pass an ordinance which prohibited all Negroes and cats who live in there?

Israel Treiman:

I would say —

Thurgood Marshall:

Is that a private action?

Israel Treiman:

Mr. Justice Marshall, that to me would be as violative as anything could possibly be because there you’re getting with a political subdivision.

Thurgood Marshall:

What?

What would it violate, the Fourteenth Amendment?

Israel Treiman:

Would violate the Fourteenth Amendment.

Thurgood Marshall:

Well, what’s the difference between this situation and the formality of the clan in a city?

Israel Treiman:

I can answer that —

Thurgood Marshall:

What would the city of the — what would the city of the fourth class have to this area does not have?

Israel Treiman:

The city of the fourth class would be a political subdivision of the state.

Thurgood Marshall:

And that’s the only difference?

Israel Treiman:

It’s a very important difference I think, Mr. Justice Marshall, for this reason.

The City of Saint Louis for example, could not in selling any part of its property discriminate —

Thurgood Marshall:

No, but any —

Israel Treiman:

But a private owner —

Thurgood Marshall:

No, could any other city in Missouri?

Israel Treiman:

Right, but a private owner and you yesterday mentioned —

Thurgood Marshall:

Even though the private owner has a piece of property as large as a city of the fourth class with everything else that the city of the fourth class has nearly because it is “private” is out from under the Fourteenth Amendment.

Israel Treiman:

Mr. Justice Marshall, you are now reaching the point which I think some of your question yesterday was directed to and that involves the case Marsh versus Alabama.

And I am most anxious to discuss that case.

I had deferred it because as I’ve said earlier, I want to deal with these questions under two categories and your question, I —

Thurgood Marshall:

Well, whenever you’re ready I’ll be here.

Israel Treiman:

No, I’ll — no, I — I think I would just assume Mr. Justice Marshall since you are interested in that point and it’s a tremendously important point and I must say when I read Marsh versus Alabama for the first time in connection with this case, I said well, this is on all fours, how can we get around that case?

Here is a big community, not in — not a city, a company owned town.

And here was the United States Supreme Court Holding that the fact that it was all privately owned didn’t settle the question.

Israel Treiman:

I think that was the expression used by Mr. Justice Black in his opinion in that case.

Property rights do not settle the question.

Now what happened in that case?

It was a Jehovah’s Witness by a name of Marsh who came under this company owned town, I think it was suburb of Mobile, Alabama and the — want to distribute some religious literature.

And the company representatives told her, there was a regulation against it, warned her to — not to do so.

Despite the warning, she continued to sell the literature.

She was arrested on a charged of violating the local in effect trespass statute.

She was convicted.

She took an appeal to this Court.

This Court held that she was protected by the constitutional provision.

This happened to be the First Amendment, but the same point of course would apply that was within constitutional prohibition.

And you might say therefore, “Well, doesn’t this control this case?”

Not one bit for this reason.

And I think as I pointed out in my brief, the best way to meet that case is to consider a similar case that arose two years later, the Watchtower case also involving Jehovah’s Witnesses.

Now what was the Watchtower?

It rose in New York.

It came however as I should presently point out to the Supreme Court on request for certiorari.

Mr. Justice Marshall since you are interested in size, I should like to describe this residential community.

It was involved in a Watchtower Case.

It was called Parkchester.

And it is described this way.

Parkchester is a residential community which is said to be the largest of its kind in the world covering 129 acres and housing 12,000 family units made up of some 35,000 people in 171 adjoining in interrelated apartment building.

And then he was on to say that it has streets, and shops, and it’s a regular community, but all privately owned.

And the Jehovah’s Witnesses came there, entered one of these apartment buildings and then in the hallways tried to distribute that literature.

Their attention was called to the fact that there was a regulation there by the landlord, the owner of this community.

No distribution of literature in the hallways of any department.

Where they’re apparently relying on Marsh versus Alabama refused to abide instead of getting themselves arrested as I recall they challenged the validity of that regulation in the New York Courts, the New York Court of Appeals —

Thurgood Marshall:

I do see a difference between an apartment house and this —

Israel Treiman:

Between the hallway?

Thurgood Marshall:

— of an apartment house and the area we’re talking about here.

Israel Treiman:

Well, not inside the apartments, I’m talking about the hallways.

Thurgood Marshall:

Well, I say — I see a difference between a hallway of an apartment house and this area.

Israel Treiman:

Well, Your Honor, may I then read to you —

Thurgood Marshall:

The petitioner here is not encroached on anybody’s property.

He’s trying to buy a house.

Israel Treiman:

But —

Thurgood Marshall:

On the city of the fourth class says, “You can’t buy it”.

The only difference is they just didn’t go to the formality of qualifying as a city of the fourth class.

Israel Treiman:

The difference I think Mr. Justice Marshall is this.

What part of this subdivision that we’re talking about?

If you’re talking about the lot in the home that the Jones’ here wanted to buy that in a language of Mr. Justice Black in Marsh versus Alabama was never intended to be open for general public used.

Thurgood Marshall:

All I’m talking about —

Israel Treiman:

This is —

Thurgood Marshall:

— is just to whether or not the fact that this area involved here was never made a city of the fourth class, that solely because of that.

It escapes all responsibility under the Fourteenth Amendment.

Israel Treiman:

Not all responsibility.

Not its public, not those areas, the sidewalks, the streets, the parks that are opened up for public use.

And again using the words —

Thurgood Marshall:

Well, could they be closed?

Israel Treiman:

Pardon?

Thurgood Marshall:

Couldn’t they be closed?

Israel Treiman:

Not the streets, not — yes, they could be closed completely for certain purposes but not under a discriminatory basis.

Thurgood Marshall:

But they could be closed completely?

Israel Treiman:

To Ne — to white people as well as Negroes if they’re private streets, certainly.

Thurgood Marshall:

Well, are they private streets or not?

Israel Treiman:

Some are private, yes and I’m glad you asked that question.

Thurgood Marshall:

Are some public?

Israel Treiman:

Oh, yes, some are private and some are public.

Thurgood Marshall:

Well, how would I know when I’m on a private ground, when I’m on a public ground in this area?

Israel Treiman:

Sometimes you don’t.

Israel Treiman:

Into my own subdivision for example —

Thurgood Marshall:

And I take a chance on going to jail for trespass?

Israel Treiman:

No, not necessarily, they have this wooden horse that at one end they close him up at one end, I’m sure the same is true, all of the county in order to keep him from becoming appropriated by the public and keep it private.

All that privacy means really in those cases is — a subdivision has to maintain them.

They would love to dedicate some of these private streets and get the county or the state to take over the maintenance.

Thurgood Marshall:

Well, I — maybe I cut you off but just now, what is the difference between this and Marsh?

Israel Treiman:

I concede the difference is as to what is involved here, I mean what the discrimination is supposed to affect.

In this case, it’s supposed to affect a private lot, walks, an area that was not intended for public use, I must come back to Mr. Justice Black’s language in the unanimous opinion of the Court in the Marsh case —

Thurgood Marshall:

I have trouble with it not to be in set aside for public use.

It was offered for sale to the public.

Israel Treiman:

Not for public use.

Thurgood Marshall:

Was it offered to the sale to the public?

Israel Treiman:

I — was offered for sale —

Thurgood Marshall:

To the public?

Israel Treiman:

Just as any private property might be offered for sale.

Thurgood Marshall:

To the public?

Israel Treiman:

Yes.

Mr. Justice Marshall, if I were the owner —

Thurgood Marshall:

Well, do you take the position that a right to buy a property is not as higher right as a right to hand out pamphlets?

Israel Treiman:

I most certainly do.

I think that the right to buy and sell property, property and as distinguished from its use.

Thurgood Marshall:

I think you’ve added something, I said the right to buy a property.

I didn’t say anything about selling.

Israel Treiman:

The right to buy a property?

Thurgood Marshall:

Property isn’t it just as strong in the constitution as the right to pay as out pamphlets?

Israel Treiman:

I think under the existing state of the law, in the absence of legislation pursuant to either as I say to Section 5 of the Fourteenth Amendment or Section 2 of the Thirteenth, I don’t know of any law at the present time that gives to the buyer the right to buy something from somebody who is unwilling to sell it to him under our existing law.

Thurgood Marshall:

Well, is there any law that gives a corporation of this size, controlling this much land, the right to — fends out one group of people solely because of race or color?

Israel Treiman:

I would say that under the existing law and I would add unfortunately I’m afraid that is so, Mr. Justice Marshall, until Congress passes a fair housing law.

And this is what disturbs me.

Mr. Justice Fortas yesterday —

Abe Fortas:

Well, I mean —

Israel Treiman:

Pardon?

Thurgood Marshall:

This Court could do it, couldn’t they?

Israel Treiman:

Pardon?

Thurgood Marshall:

This Court could do it, couldn’t they?

Israel Treiman:

Your Honor, it could of course.

And this is what shocked me a little bit yesterday when a question was asked to the Honorable Attorney General about Mr. Justice White I think.

I think Mr. Justice White asked the Attorney General, “Well, wouldn’t our decision then make unnecessary a fair housing law?”

And the Honorable Attorney General said, “No”, he didn’t think so because this decision would be broader than a fair housing law order.

To me, the whole is greater than of — any of its parts.

If you go (Inaudible) as you might say why would you need?

Why would you need a narrower type of legislation?

It would — would it not then — and this — since I started to say is what disturbs me a great deal.

And I hope this Court will also bear this in mind.

I was very much impressed yesterday by a reference of Mr. Justice Fortas made to align from Oscar Wilde.

We kill that which we — the thing we love.

Isn’t — not possible that trying to get this Court, the federal courts to do something which so many people are asking Congress to do might in some way —

Hugo L. Black:

Do you agree that Congress can do it?

Israel Treiman:

Pardon?

Hugo L. Black:

Do you agree that Congress has power to do it?

Israel Treiman:

I would rather not ask — answer that question, Your Honor.

It’s not involved in this case.

And I have not made a sufficient study.

I —

Hugo L. Black:

Well, it seems to me like your argument is really a challenge to the power of Congress under the Section 5 of the Amendment.

Israel Treiman:

I would say if Congress does pass such a law to this, then would be the question, has Congress —

Hugo L. Black:

Well, it seems to me like that’s the argument you are making on the —

Israel Treiman:

I — then I’ve been misunderstood.

Hugo L. Black:

— while you categorize it as an argument as to what the statute does.

It seems to me what you’re saying is, we’ve got the whole statute didn’t do that because Congress didn’t have that power.

Hugo L. Black:

And for — as for myself, I have said they did with reference to Section 5.

Israel Treiman:

Well, it maybe, it maybe but I don’t — in this case involves that question because we have no legislation.

We’re dealing here with the bare terms of the Fourteenth Amendment used — Mr. Justice Stewart’s language in the Guest case.

Now if Congress does implement the Equal Protection Clause of the Fourteenth Amendment by passing some appropriate legislation such as the housing law, then perhaps, we have a serious constitutional question.

I don’t know.

I would think in view of some of the recent opinions of this Court that such legislation probably would be upheld.

But as I say I have not made a — such a study of it that I seem competent —

Hugo L. Black:

It seems to me like you’re arguing if you could not implement it, if you — the legislative directly affecting an individual —

Israel Treiman:

Oh, I — then I’m —

Hugo L. Black:

Do you think that you’ve got to look to the state.

Israel Treiman:

Oh, I’m sorry, then I’ve been misunderstood.

I have not made myself plain, Your Honor.

That is not what I —

Hugo L. Black:

Well, I had so understood as I (Voice Overlap) —

Israel Treiman:

My argument as to that had to do with a piece of legislation that is already on the books.

And what I am saying is not the Congress didn’t have power at that time to have such legislation so worded that it would be aimed that individual action.

What I’m saying is that when it did exercise its power in 1866, it did not aim at individual (Inaudible) this and I want to correct any impression that I may have made that —

Earl Warren:

Well, referring back to Marsh, there was no statute in that case does it?

Israel Treiman:

If Marsh versus Alabama?

Earl Warren:

Yes.

Israel Treiman:

Yes, that came under the Fourteenth Amendment because they were state actions —

Earl Warren:

Well, that is in the statute?

Israel Treiman:

There was state action though.

Earl Warren:

I said statute.

Israel Treiman:

But no statute there.

Earl Warren:

There was no statute there.

Now, will you say there’s no statute here?

Israel Treiman:

Correct.

Earl Warren:

Now let me ask you —

Israel Treiman:

Under the Fourteenth Amendment.

Earl Warren:

Let me ask you this.

Is the right to distribute literature in a community like this entitled to a greater protection than the right to live and exist in the community?

Israel Treiman:

I would say that raises the question as to whether the rights under the First Amendment are any greater than the rights.

But I suppose under the Fourteenth Amendment to buy a property or something like that or due process.

It’s a question of balancing values, the values of our democratic society.

And I say that that question should be resolved by Congress, Mr. Chief Justice.

Earl Warren:

What right are you balancing against the right to live than exist?

Israel Treiman:

The right of free speech or religion.

Earl Warren:

Is this — your client claim the right to a free speech here, is that what you said?

Israel Treiman:

No, no.

Earl Warren:

Well, what are you balancing in this case?

Israel Treiman:

What I’m saying — what I’m —

Earl Warren:

In this case, what are you balancing?

Israel Treiman:

Pardon?

I didn’t get what —

Earl Warren:

In this case what are you balancing?

Israel Treiman:

Well, I’m balancing — I really was not balancing.

I was trying to — in this case, I was trying to say in reply to your question that if the problem is one determining which is more important, the right to distribute literature or the right to enjoy property properly by not having to live in segregated communities, by buying the house whenever the house is on the market without — being prevented doing so by discriminatory conduct.

If that is the problem, I say then you’re dealing with policy making.

I say that that is something for the legislature to determine rather than the Courts.

In any event I say that as of this time, the legislature has not yet decided.

It may if it passes a fair housing bill that that —

Earl Warren:

Have decided that in Marsh either, does it?

Israel Treiman:

It decided it as to —

Earl Warren:

The Congress?

Israel Treiman:

Pardon?

Earl Warren:

The Congress hadn’t decided it in Marsh either, did it?

Israel Treiman:

In Marsh?

Earl Warren:

Yes.

Israel Treiman:

I don’t quite understand your question how would the Congress —

Earl Warren:

There were no statute in Marsh, was there?

It was decided on the (Voice Overlap) —

Israel Treiman:

Because there was clearly — according to the Court, state action involved to the extent of the property that had been opened up for public use.

This was the theory at Marsh.

And that’s why to Watchtower case distinguishes it.

And it points out in its opinion —

Hugo L. Black:

You did not understand about Marsh, did you?

I didn’t.

Israel Treiman:

Pardon?

Hugo L. Black:

I say, you did not understand about the Marsh case, did you as I did not.

That we we’re holding anything except the Fourteenth Amendment didn’t forbid it because there was state action.

But we held was that there were state action.

It was a town treated by the state as to any other city in the state and with the streets open and everything else.

But we did not say that the Fourteenth Amendment guaranteed these people to have that right under any in all circumstances.

It’s a private ownership.

Israel Treiman:

Right.

And as a matter of fact, the New York Court of Appeals points that out immediately.

It says Marsh’s activities all took place on a sidewalk in Chickasaw Alabama, a company town.

Then it goes on a point out, made it plain that a municipal corporation cannot ban the distribution of literature on its streets, sidewalks and public places so as public areas.

And that is why I thought Mr. Justice Black, you kept saying in your opinion.

I don’t — whether you repeated it but I know your famous language which has been quoted very often, that private property does become circumscribed by constitutional and other legal rights the moment it has been opened up for general use.

Abe Fortas:

But who kept them off the street in Marsh?

Israel Treiman:

The owner, yes.

Byron R. White:

And what makes — what made it — what characterize that town as representing some arm of the state, what was it that made it that way?

Israel Treiman:

I don’t think there’s any question what that town did — resemble a regular incorporated town just as (Voice Overlap) —

Byron R. White:

So, the acts of the owner who ran the town where the acts of the state.

Hugo L. Black:

That’s in effect what we held, isn’t it?

Israel Treiman:

Only as to the streets and sidewalks, Your Honors.

That is my point.

And let me — it seems to be –Was it held that a state —

Byron R. White:

Well, I know —

Israel Treiman:

Pardon?

Hugo L. Black:

The state couldn’t disguise its operation by letting it be done by private owner in his name.

Israel Treiman:

I don’t.

Of course not.

Hugo L. Black:

But we did not unhold that this was acting under the Fourteenth Amendment.

We held that the Fourteenth Amendment didn’t forbid it because of the nature of this property which has become to all intents and purposes an incorporated town in Alabama which was recognized as such by every agency of the state.

Israel Treiman:

But a —

Hugo L. Black:

I happen to know about Chickasaw —

Israel Treiman:

Yes.

Hugo L. Black:

I’ve been there many times.

Israel Treiman:

But Your Honor, it certainly did not hold that the constitutional prohibition would apply to every portion of the town of Chickasaw.

Hugo L. Black:

Not even if he hold it —

Israel Treiman:

Even the private owner —

Hugo L. Black:

— it would apply to every piece of private property.

Israel Treiman:

When used or intended for general public use, that’s their language.

And that we agree with wholeheartedly.

And that is the reason why on the Watchtower case, this very Court refused to grant —

Hugo L. Black:

But that of course does not answer your problems on this statute, does it?

Israel Treiman:

On Section 1982?

Hugo L. Black:

Yes.

Israel Treiman:

No, no.

Here, we’re dealing with the Fourteenth Amendment.

Hugo L. Black:

Dealing with the interpretation of the statute as to what Congress has said and what it’s forbidden?

Israel Treiman:

As to that claim, there are two claims in this case.

One claim is based solely on 1962 independently the Fourteenth Amendment.

The other is based solely on the First Section of the Fourteenth Amendment on the whole cloth of that Section without any kind of statutory stitching whatsoever.

In its bare terms, I get — I refer to the language of Mr. Justice Stewart in the Guest case, in its barest terms.

And it is our position, if it please the Court, that until and unless the Fourteenth Amendment is implemented by appropriate legislation no right of action exists in this type of situation as against the (Inaudible).

Byron R. White:

Could you —

Hugo L. Black:

Mr.–

Byron R. White:

Could you — excuse me, go ahead.

Hugo L. Black:

No, no, go ahead, please.

Byron R. White:

Could you tell me how — let’s assume for the moment that 1982 does cover the state and was directed at a private refusal to sell.

Then how does the plaintiff get into the Court?

Israel Treiman:

Mr. Justice White —

Byron R. White:

Under what statute?

Israel Treiman:

You have asked another —

Byron R. White:

Under what statute?

Israel Treiman:

— cutting question and it’s a question that I have posed in my brief.

I don’t know.

The Court will have to fashion some kind of a remedy for the plaintiff.

Byron R. White:

Well, the — what’s wrong with 1983?

Because there you had — do you have to find state action?

Israel Treiman:

Even the Government admits that that Section does not apply because it clearly says under color of law and it’s a very distinction that Mr. Justice Fortas made in the Price case.

Section 1943 is like Section 242, which Mr. Justice Fortas so enlighteningly I thought, (Voice Overlap) —

Byron R. White:

Yes, but you can — I suppose —

Israel Treiman:

That was under color of law.

Byron R. White:

I suppose that this subdivision even if it wasn’t so much so organized and so operated as to represent the state within the meaning of the Fourteenth Amendment in Marsh.

Even if it weren’t that, I suppose that you — it would be possible to find the color of a state statute for purposes of 1983 just because if the authority in the statutes to organize this town, or to organize this —

Israel Treiman:

But the Government doesn’t —

Byron R. White:

— subdivision, and to exercise these powers.

Israel Treiman:

Even the Government in its brief says that it admittedly that Section does not apply for purposes —

Byron R. White:

The Government’s brief doesn’t bind us, you know.

Israel Treiman:

Pardon.

No.

Earl Warren:

Mr. Trieman, who —

Israel Treiman:

I don’t think even the petitioners claim that, Mr. Justice White.

Byron R. White:

They don’t bind this either?

Earl Warren:

Mr. Treiman, who owns the water system that supplies this subdivision?

Israel Treiman:

It comes from the county water company just as the other utilities come from public utilities.

Earl Warren:

Public utilities?

Israel Treiman:

Yes, and the complaint alleges that.

Earl Warren:

Is it publicly owned utility?

Israel Treiman:

They are — no, I don’t think so.

They are privately owned but they’re quasi public utilities and —

Earl Warren:

Who owns —

Israel Treiman:

— regulated by the state.

Earl Warren:

Who owns the sewer system?

Israel Treiman:

That also is — I think this particular subdivision is beyond the limits reached by the Saint Louis Metropolitan Sewer Agency.

And so it is, I think, handled by a private sewer agency.

And the subdevelop — the subdivision developer has to build a trunk line to some sort of a treatment plant that is maintained by that sewer agency.

And I think they can use some facilities of that sewer agency.

Earl Warren:

Who furnishes the fire service system?

Israel Treiman:

I would say that is done by — what is the name of that — there’s an organization of communities that furnish —

Earl Warren:

Public agency?

Israel Treiman:

Yes.

I don’t deny that at all.

Fire police protection, surely.

Earl Warren:

Fire and police protection by the public?

Israel Treiman:

Right, just as any other citizen.

I, as a private homeowner, I don’t have to be a subdivision developer to have that, those facilities available to me.

I’m sorry.

I’ve see the red light.

Thank you for your patience.

Samuel H. Liberman:

Mr. Chief Justice —

Earl Warren:

Mr. Liberman.

Samuel H. Liberman:

— may it please the Court.

Byron R. White:

Could you suggest to me how you do get in the Court if 1982 covers this?

Do you need a separate remedy statute —

Samuel H. Liberman:

Your Honor, I said —

Byron R. White:

(Voice Overlap) just walk in under the general jurisdictional —

Samuel H. Liberman:

I have three answers.

And the first is that, I think that 1983 could cover under any customer usage of the state.

I think perhaps a better statute would be Section 1988 which is derived from Section 3 of the Civil Rights Act of 1866 and specifically says that civil actions may get the remedy from the state common law as modified by statutes.

Thirdly, I would say that regardless that there was any statute that Congress did not intend to create a right without a remedy in this situation.

That this legislation was a result going back to the civil war perhaps at that time the bloodiest war ever fought in the history of mankind.

And following the Thirteenth Amendment, (Inaudible) was enacted once, passed over the veto of President Johnson and then enacted the third time in 1870.

And I think it’s difficult to argue that Congress contended to merely create hollow words —

Byron R. White:

Well, what do you do, you come in and you just simply alleged jurisdiction and say this was within the equitable jurisdiction of the Court?

Samuel H. Liberman:

That’s — I think that would be the third ground that we —

Byron R. White:

Do you know any cases like that?

Potter Stewart:

Do you rely on cases like Republic Steel I suppose?

Samuel H. Liberman:

Yes, I really — I wouldn’t see what — if any harder than somebody makes an illegal left turn and smacks in to me.

I can file a suit and say it was negligent of him to make that left turn and get a judicial remedy even though the (Voice Overlap) —

Potter Stewart:

Well, it may not be quite that simple but —

Samuel H. Liberman:

Well, but in addition, I do think that there is a statutory authority for a civil remedy in the Court in this type of case.

As to the interpretation of the statute, I wanted to go back briefly to the passages quoted from Mr. Treiman’s brief.

On page 15, you’ll note that the quotation, the first both to laws barbaric and treatment inhumane are the words meted out by our white enemies to our colored friends, obviously referring to both state law and private action.

Across the page on page 14, I think the quote is obviously referring in Section 2 of the Civil Rights Act of 1866, which is limited, done or a color of state law.

But that limitation — the Congress knew how to make and made it in much legislation and left it out in the Section 1 and Section 3.

So, that I think you can fairly interpret their intention as living it out intentionally when they didn’t mean for it to be there.

This legislation unlike the prior Freedmen’s Bureau Bill applied to all states not just to the states which had been in rebellion.

And I think that it was aimed at the results and the holding of this Court in Scott versus Sanford.

To some extent, it was not just to wipe out inimical state laws.

It was to grant the rights to which people were entitled regardless of whether the particular state they were in had a law that would’ve limited that right or not as applied everywhere.

So that — so our contention that the law — we don’t argue that it would overwrite any state law to the contrary because it says right at the end, any law statute ordinance regulation accustomed to the contrary not withstanding.

But we think it had a broader purpose as well.

If it were only attempting to remove a certain disqualifications, I think this would’ve been accomplished by the constitutional amendments anyway.

But it also would’ve been accomplished by the other parts of Section 1 of that Act, which gave all persons the equal right to make enforced contracts, to sue and be parties, give evidence in Court.

Samuel H. Liberman:

And to the same — fall on equal benefit of all laws and proceedings by the security of persons and properties.

So, I think that language alone would’ve remove any disqualification whether by state law or otherwise and that when they go on to say, shall have the same right to inherit, and to purchase and to lease.

That they meant that he would have the substantive right, the same right as is enjoyed by all other citizens.

And if this was the interpretation which Congress had and which is the only fair interpretation on the basis of the language of the statute.

Earl Warren:

Very well.