The Verdict of Quiescent Years

Abstract

In a long period of quiescence, three intertwined issues preserved the vitality of civil rights as a source of progressive law. Aliens become covered by the 1866 Act in amendments made in 1870, and in litigation reaching the Supreme Court in Yick Wo v. Hopkins, they successfully invoked the act and the Equal Protection Clause to bar invidious discrimination on the basis of race. Litigation at the time, and much later also, sought to protect aliens in their right to pursue a livelihood, by also invoking rights against discrimination. All of this was in contrast to decisions under the Thirteenth Amendment, which remained narrowly focused in this period on protection against slavery and peonage. One of the rights denied to aliens was the right to hold property, but it figured prominently in decisions concerned with racially restrictive local ordinances and covenants. The former constituted government action well within constitutional prohibitions against racial discrimination, but the latter could be construed to be private action, rather than state action, and so outside the scope of the Fourteenth Amendment. The decisions in this period eventually extended the state action doctrine to prevent enforcement of private contracts that contained racially restrictive covenants that barred racial minorities from entire neighborhoods. The 1866 Act furnished an alternative ground for these decisions, one that pointed the way toward circumventing the state action restriction of claims directly under the Fourteenth Amendment.