Mexican Americans, Racial Discrimination, and the Civil Rights Act of 1866 Gary A. Greenfield* and Don B. Kates, Jr.*- The authors examine the legislative history of section one of the Civil Rights Act of 1866, scientific concepts of race and racial classifica- tions, state racial statutes and litigation, the early federal naturaliza- tion law, the perception of Mexican Americans in the Southwest, and the discrimination which the Mexican American has encountered. They conclude that Mexican Americans generally have been per- ceived as a nonwhite racial group and that the discrimination they have encountered has been based upon that perception. They fur- ther conclude that Mexican Americans are entitled to the protections of section one of the Civil Rights Act of 1866. Since the Civil War, Congress has enacted a number of statutes designed to eradicate various forms of discrimination. The earliest of these statutes was the Civil Rights Act of 1866.1 The first section of that Act read: That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involun- tary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce con- tracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of per- son and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary not- withstanding. 2 That section is now codified as sections 1981 and 1982 of title 42 of 3 the United States Code. * B.A. 1971, Stanford University; J.D. 1975, University of California, Berkeley. ** LL.B. 1966, Yale University. Legal Officer, San Francisco Sheriff's Depart- ment. 1. Act of April 9, 1866, ch. 31, 14 Stat. 27. 2. Id.§l. 3. Section 1981 reads: All person within the jurisdiction of the United States shall have the same 19751 MEXICAN AMERICANS & RACIAL DISCRIMINATION 663 In early cases dealing with the post-Civil War amendments and civil rights statutes, the Supreme Court gave restrictive interpretations to both section one of the 1866 Act and the thirteenth amendment,4 upon which the Act was initially based. In the Civil Rights Cases,5 for example, the Court "conceded" that the thirteenth amendment em- powered Congress to eliminate all the "badges and incidents of sla- very,"'0 but declared that: "Mere discriminations on account of race and color were not regarded as badges of slavery."' 7 As for the Civil Rights Act of 1866, the Court stated in dictum8 that section one, which had been reenacted after passage of the fourteenth amendment, 9 was right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceed- ings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. 42 U.S.C. § 1981 (1970). Section 1982 reads: "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." Id. § 1982. The Civil Rights Act of 1866 was reenacted by the Enforcement Act of May 31, 1870, ch. 114, § 18, 16 Stat. 144, codified as sections 1977 and 1978 of the Revised Stat- utes of 1874, and appears now as 42 U.S.C. §§ 1981-82 (1970). 4. The text of the thirteenth amendment reads: Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Section 2. Congress shall have power to enforce this article by appropriate legislation. U.S. CONSr. amend. XIII. 5. 109 U.S. 3 (1883). 6. Id. at 20-21. 7. Id. at 25. 8. The question presented in the Civil Rights Cases was the constitutionality of the first two sections of the Civil Rights Act of 1875, Act of March 1, 1875, ch. 114, §§ 1-2, 18 Stat. 336, banning private racial discrimination in public accomodations. 109 U.S. at 8-9. 9. The fourteenth amendment was certified as having been adopted by the requi- site number of states on July 28, 1868. See 15 Stat. 708-11 (appendix to Statutes at Large for the 40th Congress). The Civil Rights Act of 1866 was reenacted in 1870. See note 3 supra. The interrelationship of the 1866 Act, its reenactment, the fourteenth amendment, and the Civil Rights Cases is protean and complex. A minority of congressmen had, in opposition to the original enactment of the 1866 Act, urged the view later adopted by the Supreme Court in the Civil Rights Cases, i.e., that the thirteenth amendment did not authorize congressional enactments beyond a direct prohibition of slavery itself. See, e.g., CONG. GLOBE, 39th Cong., 1st Sess. 1290 (1866) (remarks of Rep. Bingham). The majority disagreed, feeling that the thirteenth amendment allowed congressional eradication of the "incidents" of slavery, by which they meant the legal theory of slavery. That theory had provided that a slave, being simply a species of property, could not own, devise, inherit, or convey realty or personalty, nor make contracts, testify, sue or be sued. See, e.g., Kates, Abolition, Deportation, Integration: Attitudes Toward Slavery in the Early Republic, 53 J. NEGRo I-hsT. 33, 37-38 n.25 (1968). Representative Bingham, who believed that the thirteenth amendment did not an- CALIFORNIA LAW REVIEW [Vol. 63:662 "intended to counteract and furnish redress against state laws and pro- ceedings," 10 rather than against private activities. These statements by the Court were typical of those made in both earlier1 and later12 cases, with the result that section one of the 1866 Act was thought to ban only government denials of the rights accorded therein. In Jones v. Alfred H. Mayer Company,'3 however, the Court con- cluded that the thirteenth amendment, in outlawing the institution of slavery, also empowered Congress to ban both public and private ra- cial or color discrimination as vestiges of slavery not immediately eradi- cated by the prohibition of the institution itself.' 4 Moreover, the Court held that Congress, in enacting section 1982, had intended to make both public and private housing discrimination illegal.'3 As a result of the Court's reassessment of the thirteenth amendment and the Civil Rights Act, sections 1981 and 1982 have become important vehicles for combatting private discrimination, particularly in the areas of em- ployment and housing.' 6 While Title VII of the Civil Rights Act of thorize the Civil Rights Act, was the author of the fourteenth amendment. In it he intended to incorporate the principles enunciated by the 1866 Civil Rights Act and thereby put them beyond constitutional challenge. The vast majority of other supporters of the fourteenth amendment, though reading it as unnecessary for this purpose, advo- cated it as a method of placing the principles of the 1866 Act in the Constitution and beyond repeal by Southerners and their allies should they ever regain control of Con- gress. See CONG. GLoBB, 39th Cong., 1st Sess. 2459 (1868) (remarks of Rep. Stevens); id. at 2462 (remarks of Rep. Garfield); id. at 2502 (remarks of Rep. Raymond); Id. at 2511 (remarks of Rep. Elliot). Thus, after the fourteenth amendment became effective, the 1866 Act was reenacted as an addendum to the Enforcement Act of 1870 in order to dispel any possible doubt as to its constitutionality. Act of May 31, 1870, ch. 114, § 18, 16 Stat. 144. 10. 109 U.S. at 16. 11. Virginia v. Rives, 100 U.S. 313, 317-18 (1879) (dictum). 12. E.g., Hurd v. Hodge, 334 U.S. 24, 31 (1948) (dictum); Hodges v. United States, 203 U.S. 1 (1906), overruled, Jones v. Alfred H. Mayer Co., 392 U.S. 409, 441- 43 n.78 (1968). 13. 392 U.S. 409 (1968). 14. Id. at 437-44. 15. Id. at 420-37. Following the Supreme Court's lead, a number of lower federal courts have interpreted section 1981's guarantee of the right to "make and enforce con- tracts" as creating a cause of action for racial discrimination in private employment. E.g., Brady v. Bristol Myers, Inc., 459 F.2d 621 (8th Cir. 1972); Boudreaux v. Baton Rouge Marine Contracting Co., 437 F.2d 1011 (5th Cir. 1971). See also cases cited in note 16 infra. 16. Section 1981's declaration of equal rights to contract has made it a very versa- tile weapon. Besides banning private employment discrimination, e.g., Brown v. Gaston County Dyeing Machine Co., 457 F.2d 1377 (4th Cir.), cert. denied, 409 U.S. 982 (1972); Young v. International Tel. & Tel. Co., 438 F.2d 757 (3d Cir. 1971); Sanders v. Dobbs House, Inc., 431 F.2d 1097 (5th Cir. 1970); Waters v. Wisconsin Steel Works of Int'l Harv. Co., 427 F.2d 476 (7th Cir.), cert. denied, 400 U.S. 911 (1970); see Jones v.