III 116th CONGRESS 1st Session S. RES. 429 IN THE SENATE OF THE UNITED STATES November 18, 2019 Mr. Schumer (for Ms. Harris (for herself, Mr. Blumenthal , Mr. Booker , Mrs. Feinstein , Ms. Hirono , Mr. Wyden , and Ms. Warren )) submitted the following resolution; which was referred to the Committee on the Judiciary RESOLUTION Recognizing the importance of the Civil Rights Act of 1866 and the laws derived from the Civil Rights Act of 1866.

Whereas, in the aftermath of the Civil War, the reunified United States struggled to reconstruct the war-torn States and establish laws granting newly freed slaves the same rights afforded to White citizens; Whereas the reconstruction of the United States following the conclusion of the Civil War necessarily included the integration of newly emancipated African Americans into broader society and, with that emancipation, the receipt by those emancipated African Americans of civil and legal protections; Whereas, as a response to the uncertain and unequal status of newly freed slaves, the 13th Amendment to the Constitution of the United States was ratified by the States on December 6, 1865, formally abolishing slavery within the United States, or any place subject to their jurisdiction ; Whereas, on April 9, 1866, Congress overrode a Presidential veto to enact the Act of April 9, 1866 (commonly known as and referred to in this preamble as the Civil Rights Act of 1866 ) (14 Stat. 27, chapter 31), a law written to protect and clarify the newly bestowed rights of persons of African descent; Whereas the Civil Rights Act of 1866 declared that all persons born in the United States are entitled to be citizens, without regard to race, color, or previous condition of slavery or involuntary servitude; Whereas the Civil Rights Act of 1866 was enacted— (1) to establish that all persons born in the United States are to be considered citizens; (2) to clearly define the rights guaranteed by United States citizenship; and (3) to make it unlawful for any person to deprive another person of those rights on the basis of race; Whereas the Civil Rights Act of 1866 served the role of overriding Black Codes , laws enacted in southern States to restrict the freedom of African Americans and keep formerly enslaved persons from thriving in society; Whereas the first section of the Civil Rights Act of 1866 created an avenue for citizens who fell victim to intentional racial discrimination by allowing a citizen to go before a Federal court and allege that the citizen was discriminated against while engaging in lawful activity; Whereas the first section of the Civil Rights Act of 1866 was used to challenge the laws established by southern States to limit the rights and opportunities of newly freed slaves; Whereas, under section 1977 of the Revised Statutes ( 42 U.S.C. 1981 ), which is derived from section 16 of the Act of May 31, 1870 (commonly known as and referred to in this preamble as the Enforcement Act of 1870 ) (16 Stat. 140, chapter 114) and the first section of the Civil Rights Act of 1866, African American citizens are given the right to enforce contracts, give evidence in court, sue and be sued, and purchase, sell, and convey real and personal property; Whereas, in 1975, the Supreme Court recognized in Johnson v. Railway Express Agency, Inc., 421 U.S. 454 (1975), that section 16 of the Enforcement Act of 1870 allowed for private employers to be held accountable for discrimination within their ranks; Whereas section 1977 of the Revised Statutes ( 42 U.S.C. 1981 ) applies to all contracts, including those between employer and employee, and has become a vital tool for employment discrimination claimants; Whereas section 1977 of the Revised Statutes ( 42 U.S.C. 1981 ) stands as one of the only laws protecting against employers openly discriminating on the basis of race when contracting with other parties; Whereas it is well established that section 1977 of the Revised Statutes ( 42 U.S.C. 1981 ) has been invoked to challenge race discrimination in employment matters and has held bad actors accountable for contract discrimination; Whereas, in 1989, in Patterson v. McLean Credit Union, 491 U.S. 164 (1989), the Supreme Court narrowly interpreted section 1977 of the Revised Statutes ( 42 U.S.C. 1981 ) to apply only to contract formation, finding that only certain points in a contractual engagement could be subject to the protections afforded in that section; Whereas the ruling in Patterson v. McLean Credit Union, 491 U.S. 164 (1989), functioned as a major setback to ensuring that all aspects of the interaction between an employee or individual with a business would be free of racial discrimination; Whereas, in 1991, Congress, by statute, as part of the Civil Rights Act of 1991 ( Public Law 102–166 ; 105 Stat. 1071), disagreed with a plethora of Supreme Court decisions that undermined Federal antidiscrimination laws and challenged the restrictive interpretation of section 1977 of the Revised Statutes ( 42 U.S.C. 1981 ) expressed by the Supreme Court in Patterson v. McLean Credit Union, 491 U.S. 164 (1989); Whereas the 2008 decision in CBOCS West, Inc. v. Humphries, 553 U.S. 442 (2008), further determined that section 1977 of the Revised Statutes ( 42 U.S.C. 1981 ) prohibits not only direct discrimination, but retaliation against those alleging discrimination; Whereas the intent of Congress is clear through the legislative history of section 1977 of the Revised Statutes ( 42 U.S.C. 1981 ), which definitively illustrates that the law was meant to provide and enforce robust protection against race discrimination in contracting; Whereas section 1977 of the Revised Statutes ( 42 U.S.C. 1981 )— (1) in subsection (a), provides that [a]ll persons within the jurisdiction of the United States shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens ; and (2) in subsection (b), defines make and enforce contracts to include the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship ; Whereas section 1977 of the Revised Statutes ( 42 U.S.C. 1981 ) clearly enumerates the protections afforded to minorities in the United States when contracting with businesses and makes clear that all aspects of the creation, modification, and termination of contracts are subject to the scrutiny of that section; Whereas the most direct interpretation of section 1977 of the Revised Statutes ( 42 U.S.C. 1981 ) ensures that all racial minorities in the United States be granted the opportunity to enter into contractual agreements free of discrimination; and Whereas section 1977 of the Revised Statutes ( 42 U.S.C. 1981 ) serves as a critically important tool to ensure that no person is denied the ability to contract with another on the basis of race: Now, therefore, be it

That the Senate— (1) recognizes and honors the historical significance of section 1977 of the Revised Statutes ( 42 U.S.C. 1981 ) and the instrumental contributions of that law to the pursuit of equal protection for all citizens of the United States; (2) reaffirms its commitment to the 13th, 14th, and 15th Amendments to the Constitution of the United States, to the Act of April 9, 1866 (commonly known as and referred to in this resolving clause as the Civil Rights Act of 1866 ) (14 Stat. 27, chapter 31) (and the laws derived from that Act), and to the civil rights and liberties of all racial minorities across the United States; and (3) reaffirms the congressional intent behind the first section of the Civil Rights Act of 1866 (and the laws derived from that Act), which was, and remains, the protection of the rights of minorities seeking refuge from racial discrimination in business.