Historical Reconstruction, Reconstruction History and the Proper Scope of Section 1981

24 Pages Posted: 2 Mar 2010 Last revised: 16 Jul 2018

See all articles by Barry Sullivan

Barry Sullivan

Loyola University Chicago School of Law

Date Written: January 1, 1989


On April 25, 1988, the United States Supreme Court, with four justices dissenting, entered an unusual order, restoring Patterson v. McLean Credit Union to the oral argument calendar and requesting supplemental briefs on the question "whether or not the interpretation of 42 U.S.C. Section 1981 adopted ... in Runyon v. McCrary should be reconsidered." The parties in Patterson, like Congress and both courts below, had not questioned the general principle articulated in Runyon, that Section 1981 prohibits racial discrimination by private parties. The Court acted entirely on its own motion in raising this question as to the continued validity of its own precedent. In doing so, the Court signalled its intention to look back, not only to 1968, when it held in Jones v. Alfred H. Mayer Co. that Section 1982 reached private discrimination, or to 1976 when it explicitly extended that holding in Runyon to cover Section 1981, but also to 1866, when Congress first enacted these sections. Thus, the Court's order warrants revisiting the legal history of Reconstruction.

The principal aim of this esay is to show that history does not supply the quantum of proof required to warrant the overruling of Runyon. Indeed, far from showing that Runyon was wrongly decided, the historical materials provide ample support for the Court's holding that the Civil Rights Act of 1866 was intended to reach private, as well as official, discrimination.

Keywords: 42 U.S.C. 1981, Civil Rights, Civil Rights Act of 1866, Private Discrimination, Reconstruction Era

JEL Classification: J7, J71, J78, K1, K10, K40

Suggested Citation

Sullivan, Barry, Historical Reconstruction, Reconstruction History and the Proper Scope of Section 1981 (January 1, 1989). Yale Law Journal, Vol. 98, No. 3, 1989, Available at SSRN: https://ssrn.com/abstract=1559374

Barry Sullivan (Contact Author)

Loyola University Chicago School of Law ( email )

25 E. Pearson
Chicago, IL 60611
United States

HOME PAGE: http://www.luc.edu/law/faculty/sullivan.html

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