Civil Rights Act of 1866

The Civil Rights Act of 1866, 14 Stat. 27, enacted April 9, 1866, is a federal law in the United States that was mainly intended to protect the civil rights of African-Americans, in the wake of the American Civil War. The Act was enacted by Congress over the veto of President Andrew Johnson.

Content

Formally titled An Act to protect all Persons in the United States in their Civil Rights, and furnish the Means of their vindication, the Act declared that people born in the United States and not subject to any foreign power are entitled to be citizens, without regard to race, color, or previous condition of slavery or involuntary servitude. A similar provision was written a few months later in the proposed Fourteenth Amendment to the United States Constitution. Regarding citizenship by birth in the U.S.: "...all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States."

The Civil Rights Act of 1866 also said that any citizen has the same right as a white citizen to make and enforce contracts, sue and be sued, give evidence in court, and inherit, purchase, lease, sell, hold, and convey real and personal property. Persons who denied these rights to former slaves were guilty of a misdemeanor and upon conviction faced a fine not exceeding $1,000, or imprisonment not exceeding one year, or both.

The statute does not protect foreign visitors, diplomats, or Native Americans in the United States on reservations. It was intended to provide the freedmen (freed slaves) with the full range of civil rights that was enjoyed by white citizens.

This statute was a major part of general federal policy during Reconstruction, and was closely related to the Second Freedmen's Bureau Act of 1866. According to Congressman John Bingham, "the seventh and eighth sections of the Freedmen's Bureau bill enumerate the same rights and all the rights and privileges that are enumerated in the first section of this [the Civil Rights] bill."^[1]

Parts of the Civil Rights Act of 1866 are still in effect in the 21st century, according to the United States Code:^[2]

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

This section of the United States Code is based on section one of the Civil Rights Act of 1866.^[3]

Enactment, constitutionalization, and reenactment

Senator Lyman Trumbull was the Senate sponsor of the Civil Rights Act of 1866, and he argued that Congress had power to enact it in order to eliminate a discriminatory "badge of servitude" prohibited by the Thirteenth Amendment.^[4] In the twentieth century, the U.S. Supreme Court ultimately adopted Trumbull's Thirteenth Amendment rationale for congressional power to ban racial discrimination by states and by private parties, in view of the fact that the Thirteenth Amendment does not require a state actor.^[4]

To the extent that the Civil Rights Act of 1866 may have been intended to go beyond preventing discrimination, by conferring particular rights on all citizens, the constitutional power of Congress to do that was more questionable. For example, Congressman William Lawrence argued that Congress had power to enact the statute because of the Privileges and Immunities Clause in Article IV of the original unamended Constitution, even though courts had suggested otherwise.^[5]

In any event, there is currently no consensus that the language of the Civil Rights Act of 1866 actually purports to confer any legal benefits upon white citizens.^[6] Congressman Samuel Shellabarger said that it did not.^[7][8]

After the Civil Rights Act of 1866 had been enacted into law over President Andrew Johnson's veto,^[9][10] some members of Congress voted for the Fourteenth Amendment in order to eliminate doubts about the constitutionality of the Civil Rights Act of 1866,^[11] or to ensure that no subsequent Congress could later repeal or alter the main provisions of that Act.^[12] Thus, the Citizenship Clause in the Fourteenth Amendment parallels citizenship language in the Civil Rights Act of 1866, and likewise the Equal Protection Clause parallels nondiscrimination language in the 1866 Act; the extent to which other clauses in the Fourteenth Amendment may have incorporated elements of the Civil Rights Act of 1866 is a matter of continuing debate.^[13]

Ratification of the Fourteenth Amendment was completed in 1868. Two years later, the 1866 Act was reenacted, as Section 18 of the Enforcement Act of 1870.^[14]

Aftermath and consequences

The activities of insurgent groups such as the Ku Klux Klan undermined the act; and it failed to immediately secure the civil rights of African Americans. Since 1866 it has been illegal in the U.S. to discriminate in jobs and housing on the basis of race. However, federal penalties were not provided for, so that remedies were left to the individuals involved. Because those being discriminated against had limited access to legal help, this left many victims of discrimination without recourse. Since the latter half of the 20th century and passage of related civil rights legislation, there have been an increasing number of remedies provided under this act, including the landmark Jones v. Mayer and Sullivan v. Little Hunting Park, Inc. decisions in 1968.^[15]

Section 1981 (the original Civil Rights Act of 1866) was the first major anti-discrimination employment statute. This act prohibited employment discrimination based on race and color. This Act has been interpreted by the Supreme Court to protect all ethnic groups.

See also

• Saint Francis College v. al-Khazraji

Footnotes

1. ^ Halbrook, Stephen. Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, 1866-1876, page 29 (Greenwood Publishing Group 1998).
2. ^ 42 U.S.C. § 1981
3. ^ See Civil Rights Act of 1866 (full text) via the Online Library of Liberty.
4. ^ ^{a b} Salzman, Lawrence. "Civil Rights Act of 1866" in Encyclopedia of American Civil Liberties, by Paul Finkelman, Volume 1, pages 299-300 (CRC Press, 2006).
5. ^ Bogen, David. Privileges and Immunities: Reference Guide to the United States Constitution, page 43 (Greenwood Publishing Group, 2003).
6. ^ Lund, Nelson. "Two Faces of Judicial Restraint (Or Are There More?) in McDonald v. Chicago", Florida Law Review (forthcoming).
7. ^ Harrison, John. "Reconstructing the Privileges or Immunities Clause", 10 Yale Law Journal 1385 (1992).
8. ^ Congressional Globe, House of Representatives, 39th Congress, 1st Session, page 1293 (1866).
9. ^ Johnson, Andrew. "Veto of the Civil Rights Bill" (March 27, 1866).
10. ^ Belz (2000)
11. ^ Jones v. Mayer, 392 U.S. 409 (1968).
12. ^ Yen, Chin-Yung. Rights of citizens and persons under the Fourteenth amendment, page 7 (New Era Printing Company 1905).
13. ^ See McDonald v. Chicago, 561 U.S. (2010).
14. ^ See Enforcement Act of 1870 (full text) via the Online Library of Liberty.
15. ^ Player (2004).

Further reading

• Belz, Herman. A New Birth of Freedom: The Republican Party and Freedom Rights, 1861 to 1866 (2000)
• Foner, Eric. Reconstruction: America's Unfinished Revolution, 1863–1877 (1988)
• Hyman, Harold M. A More Perfect Union (1975)
• Player, Mack A. Federal Law of Employment Discrimination in a Nutshell (2004)
• Tsesis, Alexander. The Thirteenth Amendment and American Freedom: A Legal History (2004)