concurring.
For me the problem in these cases is whether to follow a line of authority which I firmly believe to have been incorrectly decided.
Jones v. Alfred H. Mayer Co., 392 U. S. 409, and its progeny have unequivocally held that § 1 of the Civil Rights Act of 1866 prohibits private racial discrimination. There is no doubt in my mind that that construction of the statute would have amazed the legislators who voted for it. Both its language and the historical setting in which it was enacted convince me that Congress intended only to guarantee all citizens the same legal capacity to make and enforce contracts, to obtain, own, and convey property, and to litigate and give evidence. Moreover, since the legislative history discloses an intent not to outlaw segregated public schools at that time,1 it is quite unrealistic to assume that Congress in*190tended the broader result of prohibiting segregated private schools. Were we writing on a clean slate, I would therefore vote to reverse.
But Jones has been decided and is now an important part of the fabric of our law. Although I recognize the force of Mr. Justice White’s argument that the construction of § 1982 does not control § 1981, it would be most incongruous to give those two sections a fundamentally different construction. The net result of the enactment in 1866, the re-enactment in 1870, and the codification in 1874. produced, I believe, a statute resting on the constitutional foundations provided by both the Thirteenth and Fourteenth Amendments. An attempt to give a fundamentally different meaning to two similar provisions by ascribing one to the Thirteenth and the other to the Fourteenth Amendment cannot succeed. I am persuaded, therefore, that we must either apply the rationale of Jones or overrule that decision.
There are two reasons which favor overruling. First, as I have already stated, my conviction that Jones was wrongly decided is firm. Second, it is extremely unlikely that reliance upon Jones has been so extensive that this Court is foreclosed from overruling it. Cf. Flood v. Kuhn, 407 U. S. 258, 273-274, 278-279, 283. There are, however, opposing arguments of greater force.
The first is the interest in stability and orderly development of the law. As Mr. Justice Cardozo remarked, with respect to the routine work of the judiciary: “The labor of judges would be increased almost to the breaking *191point if every past decision could be reopened- in every case, and one could not lay one’s own course of bricks on the secure foundation of the courses laid by others who had gone before him.” 2 Turning to the exceptional case, Mr. Justice Cardozo noted: “[W]hen a rule, after it has been duly tested by experience, has been found to be inconsistent with the sense of justice or with the social welfare, there should be less hesitation in frank avowal and full abandonment. ... If judges have woefully misinterpreted the mores of their day, or if the mores of their day are no longer those of ours, they ought not to tie, in helpless submission, the hands of their successors.” 3 In this case, those admonitions favor adherence to, rather than departure from, precedent. For even if J ones did not accurately reflect the sentiments of the Reconstruction Congress, it surely accords with the prevailing sense of justice today.
The policy of the Nation as formulated by the Congress in recent years has moved constantly in the direction of eliminating racial segregation in all sectors of society.4 This Court has given a sympathetic and liberal construction to such legislation.5 For the Court now to overrule Jones would be a significant step backwards, with effects that would not have arisen from a correct decision in the first instance. Such a step would be so *192clearly contrary to my understanding of the mores of today that I think the Court is entirely correct in adhering to Jones.
With this explanation, I join the opinion of the Court.
The sponsor of the bill in the House, Representative Wilson of Iowa, disclaimed any effect of the bill upon segregated schools. Cong. Globe, 39th Cong., 1st Sess., 1117, 1294 (1866). Opponents of the bill raised this point as an objection to a provision in the bill that “there shall be no discrimination in civil rights or immunities among *190the citizens of the United States in any State or Territory of the United States on account of race, color, or previous condition of slavery . . . .” Id,., at 1122 (remarks of Rep. Rogers); id., at 1268 (remarks of Rep. Kerr); id., at 1271-1272 (remarks of Rep. Bingham) ; see id., at 500 (remarks of Sen. Cowan). The provision was deleted in part for this reason. See id., at 1366 (remarks of Rep. Wilson). In that form the bill was enacted into law.
B. Cardozo, The Nature of the Judicial Process 149 (1921).
Id., at 150-152.
See, e. g., the Civil Rights Act of 1964, 78 Stat. 241, as added and as amended, 28 U. S. C. § 1447 (d), 42 U. S. C. §§ 1971,1975a-1975d, 2000a — 2000h-6 (1970 ed. and Supp. IV); the Voting Rights Act of 1965, 79 Stat. 437, as added and as amended, 42 U. S. C. §§ 1973-1973bb-4; the Civil Rights Act of 1968, Titles VIII, IX, 82 Stat. 81, 89, as amended, 42 U. S. C. §§3601-3631 (1970 ed. and Supp. IV).
See, e. g., Trafficante v. Metropolitan Life Ins. Co., 409 U. S. 205; Griggs v. Duke Power Co., 401 U. S. 424; Daniel v. Paul, 395 U. S. 298; Allen v. State Board of Elections, 393 U. S. 544.