The colorblind reading of Section 1981 advanced by Newson’s majority opinion is profoundly antitextual. The Civil Rights Act of 1866 was intentionally written in a race-conscious manner. The act declares that citizens “of every race and color … shall have the same right … to make and enforce contracts, 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 person and property, as is enjoyed by white citizens.” Recognizing that enslaved Black Americans never had rights to contract and property—rights essential to equal citizenship—Congress used sweeping language to ensure that persons of “every race and color” would “enjoy” the same economic freedoms as “white citizens.” The statute is not aimed at the use or consideration of race at all; instead, it uses the rights of white citizens as a baseline to guarantee to Black Americans rights of economic citizenship that white citizens have long taken for granted. Newsom quotes the relevant statutory language, but pays the text lip service.
Congress chose this text for good reason: The Reconstruction-era Civil Rights Act was critical to enforcing the 13th Amendment, eradicating badges of slavery and ensuring that Black Americans freed from bondage were entitled to basic economic rights and enjoyment of the fruits of their labor. It came in direct response to former enslavers seeking to impose new forms of servitude and reduce Black Americans to serfdom. With these new race-conscious protections, the Reconstruction-era Civil Rights Act’s Framers insisted, “all features of slavery which are oppressive in their character, which extinguish the rights of free citizens, and which unlawfully control their liberty shall be abolished and destroyed forever.” The Fearless Fund ruling perverts the statute’s roots in securing economic justice, even as it forbids Black-led businesses from using their own money to ameliorate systemic patterns of economic exclusion and inequality.
The Congress that enacted the Civil Rights Act of 1866 knew that private efforts were crucial to racial and economic uplift. One of the singular successes of Reconstruction was the creation of the nation’s first schools and colleges for Black Americans in the South, spurred by charitable giving by abolitionists and others who devoted significant resources to education in recognition that knowledge is power. In throwing up new roadblocks to the use of private money to redress racial and economic inequality, the Fearless Fund ruling is both deeply antitextual and antihistorical.