concurring.
As a matter of social policy, I have no dispute with the panel’s position: I wholeheartedly favor laws prohibiting all types of invidious discrimination. As a matter of legislative interpretation, however, I question the panel’s conclusion in Part 111(c)(1) that Congress, in enacting § 1981, intended that a plaintiff would be able to establish a claim based on anti-Iraqui or anti-Arab discrimination. I join in the panel’s holding nonetheless because I believe it is a not-unreasonable alternative given the Supreme Court’s interpretation of § 1981. I question that interpretation, however, and I also have strong reservations about the implications of today’s decision, which in large part would seem to follow from the Supreme Court’s construction.
Enacted in the aftermath of the Civil War, which was fought to a great extent over slavery, § 1981 was intended to place blacks on an equal footing with whites by prohibiting racial discrimination in private contracts. See Jones v. Alfred H. Mayer Company, 392 U.S. 409, 427-28, 88 S.Ct. 2186, 2197, 20 L.Ed.2d 1189 (1968). Based on my reading of the statute, its legislative history, and the broader historical context in which it was enacted, I am persuaded that Congress designed its protections to apply solely to blacks. Admittedly there may have been one or two congressmen like Representative Shallabarger, who wished to go further. But nothing in the legislative history indicates that such a stance represented the view of the majority in Congress.
An interpretation of § 1981 that would confine its coverage to blacks charging racial prejudice, however, would now seem to be precluded by McDonald v. Santa Fe Trail Transportation Company, 427 U.S. 273, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976). There, the Supreme Court held that white plaintiffs seeking to challenge so-called reverse discrimination could maintain suit under § 1981. Rejecting the position that the Act was designed solely to protect blacks, the Court declared that the 39th Congress “was intent upon establishing in the federal law a broader principle than would have been necessary simply to meet the particular and immediate plight of the newly freed Negro slaves.” Id. at 295, 96 S.Ct. at 2585. The prospect of discrimination against whites may have appeared highly unlikely at the time, the Supreme Court stated, yet the statute created a principle that prohibited such unequal treatment; “the Act was meant, by its broad terms, to proscribe discrimination in the making or enforcement of contracts against, or in favor of, any race.” Id. at 295, 96 S.Ct. at 2585.
McDonald does not directly control the case at hand, to be sure. It simply holds that § 1981 was intended to protect not only blacks but also members of other “races,” and that white plaintiffs may therefore bring suit under it. The present case could be distinguished. Here, it might be argued, the plaintiff, although a Caucasian, does not claim to be discriminated *520against as a Caucasian, as in McDonald; rather, he alleges that he was discriminated against as an Arab or an Iraqui. And discrimination against Arabs or Iraquis, the argument would conclude, is not racial discrimination cognizable under § 1981.
The problem with this position is that it rests on a technical definition of race as black and white, or perhaps black, white and yellow, in keeping with the classic anthropological definition of race as the three major groups, Caucasoid, Negroid and Mongoloid. I agree with the panel that there is no evidence that Congress intended a narrow scientific definition of race when it passed § 1981. Moreover, adopting an anthropological definition would lead to anomalous results: while a white would be able to claim anti-white discrimination under the statute, for example, a Mexican-American or an Indian would be unable to make out a claim, unless they contended they were unfairly treated by virtue of being Caucasians.
Having rejected a narrow definition of race, the majority comes forward with a much broader one. Race, it concludes, means “membership in a group that is ethnically and physiognomically distinctive.” Ante at 517. I do not believe the Court should be conducting this definitional exercise to begin with, because in my view § 1981 was designed solely to protect blacks. But since McDonald appears to have removed that option, and of necessity forces a selection of some definition of race, the one selected by the majority seems more sensible than the anthropological approach.
Yet it too leads to troubling results. Now, in any suit under § 1981, a jury may be asked to determine whether the plaintiff has been subjected to discrimination as a result of belonging to a group that is “ethnically and physiognomically distinctive” —a rather far cry from the language of, and the purpose behind, § 1981. Although the panel stops short of holding that national origin discrimination is encompassed by § 1981, virtually any nationality can be seen as ethnically and physiognomically distinctive. The result, I believe, constitutes a dramatic expansion in the number of plaintiffs who may now proceed under the statute, well beyond what Congress intended when it passed the law.1 In effect, a statute aimed at racial discrimination is being converted into one also focused on national origin discrimination.
I agree that prohibiting private discrimination based on national origin, as Title VII expressly does, is salutary; indeed, prohibiting any type of invidious discrimination is salutary. I also realize that it may be tempting for federal judges to “interpret” the statute to achieve the desired result. Because we are not directly answerable to the voters, however, we are not well suited to make what is essentially a policy choice. That task, under our system of government, is assigned to Congress, the branch of government that is most representative of the people. And the more judges succumb to the temptation to make such policy choices under the guise of interpretation, the more we risk diminishing confidence in our judgments. In light of the Supreme Court’s decision in McDonald, however, I am constrained to join the result reached by the panel.
. In light of the continual flow of immigrants to the United States, the consequences of this expansion are quite substantial. Persons from most of the Middle East and Asia, for example, would now appear able to sue under § 1981. As of 1980, there were 2,539,800 persons born in Asia living in the United States, as well as 43,400 from Egypt and 71,500 from North Africa. United States Department of Commerce, Bureau of Census, Statistical Abstract of the United States (1985), at 87. I do not mean to suggest that this inflow is in any way undesirable; the figures, rather, point up the extent of the expansion of the statute, which underpins, I believe, the need for Congress, as opposed to the judiciary, to decide on the appropriateness of this result.