On August 14, 1862, President Lincoln hosted a delegation of five local Black ministers he had invited to the first-ever meeting of any president with Black leaders. As the small group met with Lincoln at the White House, the President was still awaiting a significant Union military victory, which he considered a prerequisite for announcing his plan to issue the Emancipation Proclamation on January 1, 1863.1 Though the legal status of slaves who escaped to Union lines remained murky during this early Civil War period—these former slaves often were labeled and kept as “contraband”2—Lincoln continued to push his belief in foreign colonization as the most promising option for freed slaves.Asserting that the races should be “separated,” Lincoln convened this August meeting to seek help from Black leaders with his plan to relocate Black Americans to Central America, where they could thrive in a “similarity of climate with your native land.”3 David Blight, in his Pulitzer Prize–winning biography of Frederick Douglass, summarized “this infamous meeting” as “Lincoln’s worst racial moment … [when] a nearly desperate president gave a one-way lecture looking for self-sacrificing black men to volunteer to leave their country to assuage the fears of white people who now had to imagine the end of slavery.”4As he pushed for his colonization plan, Lincoln declared to the ministers: “But for your race among us there could not be war, although many men engaged on either side do not care for you one way or another.”5 Lincoln acknowledged that Black people, slave or free, had suffered “the greatest wrong inflicted on any people”; he nevertheless went on to assert that “[o]n this broad continent, not a single man of your race is made the equal of a single man of ours.”6 In front of invited members of the press, Lincoln told the Black delegation that if they did not take on leadership for voluntary repatriation, they would thereby demonstrate “an extremely selfish view of the case.”7Across the country, “Blacks generally exploded with ire at Lincoln’s colonization address.”8 Frederick Douglass sardonically noted that Lincoln’s “but for” rhetorical claim was akin to a “horse thief pleading that the existence of the horse is the apology for his theft or the highway man contending that the money in a traveler’s pocket is the sole cause of his robbery.”9 And Horace Greeley, the influential editor of the New York Tribune, skewered Lincoln for being “unduly influenced by the counsels … of certain fossil politicians hailing from the Border States.”10Lincoln sought to regain ground by publishing a public letter eight days after his unfortunate colonization meeting. Though his response remained deeply problematic, it also illustrated the core problem in Lincoln’s earlier “but for” claim about Black people and the Civil War. In what was to become a famous letter, Lincoln wrote: “My paramount object in this struggle is to save the Union, and is not whether to save or destroy slavery.”11 He continued, “If I could save the Union without freeing any slave I would do it, and if I could save it by freeing all the slaves I would do it; and if I could save it by freeing some and leaving others alone I would also do that.”12By November 1863, Lincoln’s Gettysburg Address proclaimed that the untold amount of blood and suffering during the Civil War promised “a new birth of freedom.”13 With Black Americans finally allowed to enlist, their storied courage and gruesome losses had much to do with turning the tide of the war as well as of public opinion. As the end of the awful war approached in 1865, Lincoln lobbied with unusual enthusiasm for adoption of the Thirteenth Amendment.14 This history offers only one of many examples during Lincoln’s presidency that illustrate the complexity, if not the impossibility, of isolating specific causation in matters of race and public policy. In pursuit of some single legal cause, the difficulty becomes even more salient, particularly when it is purportedly anchored by a statute passed by a multi-membered political body more than 150 years ago.To be fair, determining the cause or causes of the Civil War has bedeviled generations of historians and their students. Nonetheless, Lincoln’s rather desperate “but for” claim within his evolving view of slavery exemplifies a common fallacy in efforts to discern, isolate, and articulate but-for causation in complex situations. Though Lincoln moved rapidly toward accepting that all Black people born in the United States ought to be citizens protected by their government, his stumble into crass “but for” reasoning in 1862 illustrates the bad habit—all too common among even smart lawyers and judges—of isolating specific ideas from their contexts. As Thomas Reed Powell famously put it, “If you think that you can think about a thing inextricably attached to something else without thinking of the thing which it is attached to, then you have a legal mind.”15 Words matter. So does context.16This essay focuses on the strikingly ahistorical United States Supreme Court decision in Comcast Corp. v. National Ass’n of African American–Owned Media.18 The Court’s strained yet unanimous view of the country’s first civil rights law has been little noticed,19 but it is likely to have a substantial effect over time. The Court introduced a new requirement that a civil rights plaintiff must persuade a fact finder that the defendant’s racial discrimination was the “but-for” cause of an alleged harm to establish a violation of the Act. Justice Gorsuch’s opinion for the Court claimed that this result was compelled by “clues” accumulated “collectively … from the statute’s text, its history, and our precedent.”20Despite the Court’s professed devotion to textualism in numerous decisions during its 2019 Term, Comcast offers a troubling illustration of the Justices’ willingness to manipulate categories and to use sleight of hand when they do not wish to be textually bound. The lengthy litigation and the frustrating, prolonged settlement failures involving the plaintiffs in Comcast may partially explain why the decision came out as it did, and unanimously at that. “African American entrepreneur Byron Allen,” the operator of seven television stations, filed suit alleging racial discrimination after his Entertainment Studios Network (ESN) network unsuccessfully sought “[f]or years … to have Comcast, one of the nation’s largest cable television conglomerates, carry its channels.”21 Yet what might initially seem a narrow decision in a messy and not terribly sympathetic case is almost certain to have profound ripple effects. Tragically, it also joins a long line of Supreme Court decisions that have helped eviscerate the “promise of freedom” that Congress specifically made within the text of its early Reconstruction statutes as well as the post–Civil War constitutional amendments.22Part I of this essay summarizes the text and context of the pathbreaking 1866 Civil Rights Act—our nation’s first civil rights statute—which boldly redefined United States citizenship and specifically listed rights inherent in it.23 Part II analyzes the Comcast opinion and its conclusion that federal civil rights claims under the 1866 Civil Rights Act ought to be analyzed as tort claims. Remarkably, torts are mentioned nowhere in the statute. As part III illustrates, the current Court’s much-vaunted textualist approach proved at least double-edged during the Court’s 2019 Term, which included Comcast. In the Court’s often-strained textualism during that Term, the Justices generally paid at least some attention to the actual texts of the statutes and treaties under review. Comcast, however, offers a striking contrast. The decision lacked any basis whatsoever in the statutory text at issue.Despite the lengthy and somewhat embittered litigation in Comcast, the underdeveloped nature of its facts may help explain why all the justices joined in the result. Yet the Court’s inattention to the text and history of the Civil Rights Act of 1866 points to great future mischief. It also raises the specter of result-oriented judicial cynicism.A but-for causation test has much to do with the relative roles of judges and juries in tort cases and very little to do with the language of statutes or the discernible intent of legislators. Nearly a century ago, Leon Green—torts expert, leading legal realist, and long-tenured Dean of the Northwestern University School of Law—convincingly demonstrated the artificiality of but-for causation as a legal doorkeeper.24 Much more recently, an article by my colleague Mari Matsuda further described how but-for restrictions in tort law impose social costs on those least able to bear them.25 There also have been compelling arguments for the creation of constitutional torts, frequently keyed to the substantial damage done by the denial of civil rights to the important dignitary claims of plaintiffs as well as to the basic protection owed them as American citizens.26 Nonetheless, the Court has not embraced such theories about government’s obligation to protect the civil rights of citizens.27 The Court’s exceptionally broad extension of “qualified immunity” for state government officials—and particularly for police officers—functions very much in the opposite direction.28 As in Comcast, the Court seems to delight in establishing abstract legal barriers to avoid messy facts.29Before Comcast, alleged racial discrimination as a factor generally was sufficient to survive summary judgment in civil rights claims. Even after the Court began to require discriminatory motive as a prerequisite for a valid Equal Protection claim in the 1970s,30 the justices nonetheless accepted that a standard of causation far short of “but-for” remains appropriate in the discrimination context. In Personnel Administrator of Massachusetts v. Feeney,31 for example, a case about alleged sex discrimination (not race discrimination), the Court rejected Helen Feeney’s claim: she consistently scored high on qualifying examinations for Massachusetts civil service jobs, yet just as consistently could not land any of those jobs because competing veterans (almost all of them male) received an “absolute preference.” Yet Justice Stewart’s majority opinion declared that “the dispositive question” was whether Ms. Feeney “has shown that a gender-based discriminatory purpose has, at least in some measure, shaped the Massachusetts veterans’ preference legislation” that Feeney unsuccessfully challenged.32In Comcast, the factual allegations cried out for further proceedings in the courts below. Yet the Supreme Court, understandably frustrated by a case that had lingered for over a decade, ruled that a Rule 12(b)6 dismissal was in order because the plaintiffs (hereinafter ESN) had not alleged “but-for” causation. Never mind that ESN actually made a contract claim, alleging racial discrimination precisely within the 1866 Civil Rights Act’s guarantee of an equal right “to make and enforce contracts … as is enjoyed by white citizens.”33 The Court simply shifted legal categories. It ignored the clear, protective language of the statute by moving the entire case from contract to tort law, which seems an innovative form of legal gaslighting in a textualist era.The Court’s strikingly brief legal analysis began this way: “It is ‘textbook tort law’ that a plaintiff seeking redress for a defendant’s legal wrong typically must prove but-for causation.”34 This assertion is hardly accurate even as a generalization about the multifaceted field of tort law, and it is entirely inaccurate about tort law in the 1860s.35 Nonetheless, the Court managed to separate—yet also at times to combine—strands from the broad, bold coverage of the 1866 Civil Rights Act and the considerably different reach of Title VII of the Civil Rights Act of 1964 (at least as the Court has construed it).36The Ninth Circuit opinion below had created a circuit court split about what must be alleged and what must be proved to establish an “actionable” claim of racial discrimination. This entire issue arose only recently, however, as lower-court judges began to reach restrictive decisions in the Title VII and Age Discrimination in Employment Act of 1967 (ADEA) contexts and then extend them to Sections 1981 and 1982. Mainly, the Title VII and ADEA decisions involved alleged retaliation in workplace conflicts.37 But modern workplace conflicts are a far cry from the brutal realities recently freed slaves faced—in fact and in law—in 1866. Moreover, as Justice Frankfurter stated in a different, poignant context: “But history also has its claims.”38Remarkably, the Supreme Court in Comcast relied on its own sweeping assumptions about tort law rather than attending to either the original text or the current statutory language directly derived from the 1866 statute. Indeed, the Court proceeded without even a hint of awareness of the well-established history of the Civil Rights Act of 1866 and its important place in Reconstruction.39 At its core, the Act provided that all citizens were thenceforth to enjoy “the full and equal benefits of all laws and proceedings for the security of person 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 notwithstanding.”40The Thirty-Ninth Congress had to pass the Civil Rights Act of 1866 over President Andrew Johnson’s veto, rejecting his bitter veto message, which fervently embraced a states’ rights approach to Reconstruction. In fact, this was the first time that Congress overrode a presidential veto of major legislation. The statute declared that all recently liberated slaves, as well as everyone else born in the United States and its territories (with the exception of “Indians not taxed”) now were United States citizens.41 It then specified a sweeping range of rights in which all citizens would be fully and equally protected by federal law.42 Many Congressmen enthusiastically celebrated this opportunity to use, on behalf of freedom, the kind of federal power that had been employed to return fugitive slaves to their masters. The Thirteenth Amendment’s unprecedented Enforcement Clause afforded new authority, and many delighted in superseding Chief Justice Taney’s Dred Scott decision.43Congress stressed the dramatic need for federal protection of former slaves endangered by those who sought to return them to conditions as close as possible to slavery itself. In the summer and fall of 1865, the former Confederate states held conventions, and South Carolina and Mississippi soon led the way in passing stringent Black Codes. These Black Codes, quickly adopted by eight states, severely restricted the rights of the freedmen and sought to compel them to continue to work under conditions akin to slavery—often in the same places where they had been slaves.44 Overtly discriminatory laws were wrapped in the garb of “states’ rights,” the main thrust of President Johnson’s Reconstruction policy.Not surprisingly, the Republicans in control of the Thirty-Ninth Congress found such developments deeply disturbing.45 Many of them—often after specific mention of the valor of Black soldiers and the huge number of casualties they had suffered during the Civil War—embraced the concept that allegiance to a government ought to be accompanied by protection by that government.46 They insisted over and over again that the Civil Rights Act of 1866 would now guarantee freedom because it afforded all citizens full and equal legal protection. The statute went so far as to impose criminal liability on those who deprived others of their rightful equality. The Comcast opinion correctly pointed this out, only to use it to distinguish away the force of the statute’s provisions.47 Yet, in addition, the 1866 Civil Rights Act offered unprecedented authority to remove cases to federal court if and when states failed in their duty to enforce the Thirteenth Amendment’s “grand yet simple declaration of universal freedom.”48As the core comparator for the civil rights that the statute listed and sought to protect, Congress clearly and specifically referred to the rights and immunities of white citizens. The Thirty-Ninth Congress understood, of course, that white citizens were not former slaves. Nor were whites being widely victimized through violence and blatant racial discrimination. The statute’s use of the rights of white citizens as its metric meant that everyone was legally entitled to be treated as well as white citizens were supposed to be treated—and thereby protected broadly from race-based discrimination.49 It guaranteed a broad range of rights that included the rights to make and enforce contracts, to own property, and to participate fully in the legal system. This pathbreaking federal law guaranteed that these rights would be protected for citizens “of every race and color,” without regard to any previous condition of slavery or involuntary servitude.50 Further, all citizens were to be “subject to like punishment, pains and penalties, and to none other.”51 This bold declaration clearly was to supersede “any law, statute, ordinance, regulation, or custom[] to the contrary.”52Naïve as the ambitions of the Thirty-Ninth Congress turned out to be, there was absolutely no indication in the statute that Congress meant to ignore racism where its manifestations combined with other forces. There was no indication that Congress intended to prohibit only that discriminatory conduct that could be shown to have changed the outcome of a transaction. Simply put, nowhere did Congress hint at a requirement that a plaintiff could not invoke the broad protection of the statute absent proof of but-for causation. Rather, through the 1866 Civil Rights Act, “Congress transformed the common law of civil rights into the public law of equal citizenship.”53There can be no question that members of the Thirty-Ninth Congress had a complex mix of motives, many idealistic and surely some not. They wove a tangled web that included, for example, paternalism, the Republican Party’s long-standing faith in free labor, direct political calculation, and even the desire to keep former slaves from migrating north by vigorously protecting their rights in the South.54 Classic American optimism also played a role when the first civil rights statute “sought to fill the vacuum surrounding the legal status of the freedmen (as they were called) and to forestall the efforts of state legislatures to demote the freedmen to the status of second-class citizens (or worse).”55 There clearly was a need to guarantee the new freedom anchored in the Thirteenth Amendment, and Congress emphatically rejected President Johnson’s efforts to return as rapidly as possible to the older normalcy.56And, despite the Comcast opinion’s pronouncement to the contrary,57 the 1866 Civil Rights Act explicitly provided for vindication of the rights it protected through civil litigation. Indeed, Section 3 established access to federal district and circuit courts for “all causes, civil and criminal, affecting persons who are denied or cannot enforce in [the state courts] the rights secured to them by the first section of this act.”58 It is no surprise, then, that the Supreme Court’s precedents have allowed claims anchored in 42 U.S.C. §§ 1981 and 1982, the Act’s modern remnants, to challenge racial discrimination successfully, even when brought by private citizens against private parties.59Finally, Congress took very seriously the equal rights it sought to enshrine in the Civil Rights Act.60 Less than a year later, for example, when the lame-duck session of that Thirty-Ninth Congress confronted the harsh reality of the widespread denial of those rights and the ineffectiveness of the Freedmen’s Bureau in implementing them, it sent Union troops into the recalcitrant South, which it divided into five sections under military control.61The Comcast opinion began as follows:Few legal principles are better established than the rule requiring a plaintiff to establish causation. In the law of torts, this usually means a plaintiff must first plead and then prove that its injury would not have occurred “but for” the defendant’s unlawful conduct. The plaintiffs before us suggest that 42 U.S.C. § 1981 departs from this traditional arrangement. But looking to this particular statute’s text and history, we see no evidence of an exception.62This remarkable paragraph is startling for a number of reasons, the first being its conclusory insistence that “this particular statute”—which nowhere looks like, sounds like, or gives any indication of being a torts provision—can be hijacked by the law of torts. The second reason is the paragraph’s oversimplification of the law of torts so as to all but assure error about torts doctrine. Yet the Comcast opinion proceeded with these two points as its guiding principles.Justice Gorsuch’s next paragraph briefly summarized some of the facts of the case at issue, albeit with a clear undertone of impatience. His opinion implied that after negotiations failed, the plaintiffs allowed the case to drag on for years, sought an exorbitant amount, and ought to have accepted Comcast’s reasons for not granting them cable access for their channels.63 Moreover, though ESN acknowledged that Comcast had asserted legitimate business reasons, ESN insisted that these were pretextual and even suggested that Comcast had paid civil rights groups to offer public support “and to win favor before the Federal Communications Commission.”64 The Court’s factual summary concluded: “As relevant here, ESN alleged that Comcast’s behavior violated 42 U.S.C. § 1981(a), which guarantees, among other things, ‘[a]ll persons … the same right … to make and enforce contracts … as is enjoyed by white citizens.’”65 This section stated the allegation accurately—there was no mention of any tort claim.Once the opinion got into a discussion of the law, Justice Gorsuch became a skillful magician, drawing the audience’s attention away from the Civil Rights Act of 1866 and keeping it away—even while flipping a few disjointed provisions into the air. As he flashed tort terminology and citations that conjured stacks of ancient treatises, the Act that Congress adopted seemed to disappear. It is hardly a surprise, therefore, that his Comcast opinion, considered with care, is weirdly untethered from the usual statutory construction anchors.Unfortunately, the Comcast opinion also shows that Senior Federal Circuit Judge Jon O. Newman was overly optimistic when he recently stated, “[A]ll federal judges (I have been one for forty-nine years) begin the task of interpreting a federal statute by examining the text of the relevant provision.”66 Instead, the Comcast opinion began by entirely ignoring the text of the federal statute, replacing it with an abstract and historically inaccurate oversimplification of nineteenth-century tort law.This goes beyond a violation of the teachings of “textualism,” as even an opinion by a judge who embraces the importance of statutory history and court-made doctrine nonetheless would start with the current text of the statute in question. For instance, the Court long ago directly invoked the Act’s language that addressed racial discrimination in property and contract law in applying its protections against racially restrictive covenants.67 Then, in the series of important property and contract decisions launched by Jones v. Alfred H. Mayer Co.,68 the Court directly applied the Act’s language to contract and property matters, with no insertion of a but-for tort concept. Indeed, tort doctrine did not figure in those decisions at all.Despite Justice Gorsuch’s declaration that the Court would reach for clues in its precedents and the statutory text and history, his opinion proved entirely uninterested in any of those. He mentioned Jones v. Alfred H. Mayer only en passant,69 thereby escaping the bounds of its language and holding. Jones, with 42 U.S.C. § 1982 as its basis, invalidated private racial discrimination in a housing contract. Justice Stewart’s majority opinion boldly proclaimed:[The Thirteenth Amendment would be] a mere paper guarantee if Congress were powerless to assure that a dollar in the hands of a Negro will purchase the same thing as a dollar in the hands of a white man. At the very least, the freedom that Congress is empowered to secure under the Thirteenth Amendment includes the freedom to buy whatever a white man can buy, the right to live wherever a white man can live. If Congress cannot say that being a free man means at least this much, then the Thirteenth Amendment made a promise the Nation cannot keep.70This reliance on the Thirteenth Amendment and on the statutory definition of the rights for which it provided the foundation, as well as the rest of Justice Stewart’s opinion, contrasts dramatically with the Court’s newly imposed requirement that a plaintiff must prove not only that racial discrimination occurred but that each particular harm the plaintiff suffered would not have occurred without that discrimination. This new test is nothing short of an enormous obstacle for any plaintiff. Historians, sociologists, economists, and journalists report extensively on the myriad economic, social, class, political, and other causes—public and private—that have helped to establish and nurture inequality and mistreatment of racial minorities in the United States. A minority plaintiff—even one who has been the victim of unlawful discrimination—may not always be able to show that each harmful result of that discrimination would not have occurred otherwise. Therefore the requirement of but-for proof frequently will have the effect of allowing perpetrators of racial discrimination to escape liability, shielded by the very pervasiveness of racism.Jones and its view of the Civil Rights Act of 1866 proved to be an important precedent pointing toward the full and equal protection of all American citizens. Within a year, for example, the Court, by then headed by Chief Justice Warren Burger, extended Jones to reach discrimination in the transfer of membership in a recreational association in Sullivan v. Little Hunting Park.71 It soon extended the prohibition on private discrimination to § 1981.72 The Court held in Runyon v. McCrary in 1974 that the 1866 Act “prohibits private, commercially operated, nonsectarian schools from denying admission to prospective students because they are Negroes.”73 As in the case of many other educational institutions, the segregated private academy sued in Runyon had put forth numerous reasons for excluding Black children. These reasons ranged from specific and realistic business concerns to the complex racial, social, political, class, and educational attitudes of its clientele and on to the complex and varied views of the people who ran the school.74 In other words, many factors were identified as contributing to the injury at issue. But discrimination, by its existence, was actionable. But-for causation was never even mentioned.Justice Gorsuch claimed to find “further clues” from “[t]he larger structure and history of the Civil Rights Act of 1866.”75 But the “clues” he unearthed were either mythical or seriously misrepresented in his majority opinion.As clues, Justice Gorsuch initially offered two remarkable assertions. First: “Nothing in the Act specifically authorizes private lawsuits to enforce the right to contract.”76 Second: “Instead,” he continued, “this Court created a judicially implied private right of action, definitively doing so for the first time in 1975.”77 (One is left to wonder what criteria distinguish definitive Supreme Court decisions from its other precedents.) Justice Gorsuch used these revisionist assertions as a rationale that tied section 1 of the 1866 Act (the provision at issue) to the criminal provision in section 2 with its use of the phrase “by reason of his color or race,” from which he then worked backward to insist on a but-for causation requirement in section 1.78Text, history, and precedents all demonstrate how misleading Gorsuch’s artful dodging turns out to be. He entirely missed § 3 of the 1866 Act, which could hardly have been more clear in establishing federal court jurisdiction for anyone deprived of the protections enumerated in § 1 (which included making and enforcing contracts). It stated:That the district courts of the United States within their respective districts, shall have, exclusively of the courts of the several States, cognizance of all crimes and offences committed against the provisions of this act, and also, concurrently with the circuit courts of the United States, of all causes, civil and criminal, affecting persons who are denied or cannot enforce in the courts or judicial tribunals of the State or locality where they may be any of the rights secured to them by the first section of this act.79Thus, the Civil Rights Act of 1866 did authorize private suits to enforce equal contracting rights. And, as an unsurprising corollary, the Supreme Court did not only in 1975 create a private right of action to do so. Indeed, the Court had been sustaining civil rights claims brought by private parties—definitively—much earlier.80Comcast’s judicial fiat thereby erased the statutory language of, and decades of precedent under, §§ 1981 and 1982. What remains is a wholly judicially manufactured barrier to civil rights enforcement.The second “clue” claimed by Justice Gorsuch turns out to be another non-clue. Near the end of § 3, the Thirty-Ninth Congress sought to fill any gaps in the law it was promulgating that could hamper the statute’s ability to vindicate the broad rights it identified. Accordingly, Congress made a single mention of “common law”—in no way in conflict with the statute’s guarantees—di