Civil Rights Act of 1866

• 1. Introduction

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  The Civil Rights Act of 1866 became law on the 9th of April, 1866, without a president's signature. The mechanism that made that possible had never before been used on a major piece of legislation in the United States. Congress had overridden a presidential veto. President Andrew Johnson refused to sign, and Congress pushed the bill through anyway. What drove lawmakers to take such a step, and what did they hope this law would accomplish? The act was the first federal law to define American citizenship. It was designed, in the aftermath of the Civil War, to protect the civil rights of people of African descent. Whether it could keep that promise would depend on constitutional battles still to come. It would also depend on the behavior of violent private groups that no statute alone could stop.

• 2. Reversing Dred Scott

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  The Dred Scott decision of 1857 had reached a sweeping conclusion. People of African descent born in the United States could not be citizens, the Supreme Court had ruled. Senator Lyman Trumbull, the author of the Civil Rights Act of 1866, designed the new law to overturn that ruling directly. He built the act around three interconnected objectives. The first was a broader definition of citizenship, one that would replace the Dred Scott standard. The second was the attachment of specific civil rights to that citizenship. The third was making it unlawful to deprive any person of those rights. The prohibited grounds were race, color, or prior condition of slavery or involuntary servitude.

  Congressman James F. Wilson introduced the legislation in the House and tried to explain what the phrase "civil rights and immunities" actually covered. His answer was deliberately narrow. The term did not, he argued, mean that all citizens could vote, sit on juries, or send their children to the same schools. He described civil rights using Bouvier's Law Dictionary as his reference. In that framing, civil rights were those which have no relation to the establishment, support, or management of government.

  Congressman John Bingham later observed that the Freedmen's Bureau Act of 1866 enumerated the same rights as the Civil Rights Act's first section. The question of whether Congress actually had authority to enforce those rights was already on the horizon. It would prove more contentious than the veto battle itself.

• 3. Johnson's Double Veto

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  On the 5th of April, 1866, the Senate voted to override President Andrew Johnson's veto. Johnson had vetoed the bill once already, and Congress had passed it a second time. He vetoed it again, and each chamber returned a two-thirds majority to override him. The vote tallies revealed how completely the battle had divided along party lines.

  In the Senate, Republicans supported passage 32 to 4. Every Democrat in the chamber voted against; all 11 of them. A single Unconditional Unionist voted in favor, and one senator did not vote. The picture in the House was even more decisive. Republicans voted 117 in favor and only 2 against. Democrats cast 33 votes against the bill and none in favor. Four Unconditional Unionists backed the measure. Twenty-one House members did not vote.

  Johnson's opposition reflected how far the act's reach actually extended. The law contained specific rights, specific protections, and criminal penalties for those who violated them. What it said, exactly, would shape every legal argument that followed.

• 4. Rights on Paper

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  All people born in the United States and not subject to any foreign power were entitled to citizenship, the act declared. That principle applied regardless of race, color, or previous condition of slavery or involuntary servitude. From that citizenship flowed a specific list of rights.

  Any citizen had the same right that a white citizen had to make and enforce contracts. Citizens could sue and be sued and give evidence in court. They could inherit, purchase, lease, sell, hold, and convey real and personal property. The law guaranteed the full and equal benefit of all laws and proceedings for the security of person and property. Penalties applied in the same direction: citizens were subject to like punishment, pains, and penalties, and to no other.

  Anyone who denied these rights on account of race or previous enslavement was guilty of a misdemeanor. The penalty on conviction was a fine not exceeding $1,000, or imprisonment not exceeding one year, or both.

  The act's language closely echoed provisions then being drafted for the proposed Fourteenth Amendment. That kinship was not coincidental. It reflected anxieties within Congress about whether the 1866 Act had secure enough constitutional foundations to stand on its own.

• 5. Constitutional Fault Lines

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  John Bingham would go on to write the first section of the Fourteenth Amendment. During the debate over the Civil Rights Act of 1866, however, he questioned whether Congress had the authority to pass it at all. Bingham also supported the deletion of a key provision during the legislative process. That provision would have barred all discrimination in civil rights and immunities throughout every state and territory. The prohibited grounds were race, color, or previous condition of servitude. Bingham worried that courts might construe "civil rights" more broadly than sponsors intended. That could give the act a reach nobody in Congress had agreed upon.

  Senator Trumbull argued from a different position. He believed the Thirteenth Amendment, which abolished slavery, also gave Congress power to eliminate discriminatory badges of servitude. In the twentieth century, the Supreme Court ultimately adopted Trumbull's reasoning. It held that the Thirteenth Amendment did not require a state actor. That meant Congress could use it to ban racial discrimination by private parties, not just by state governments.

  After the act passed over Johnson's veto, some members of Congress backed the Fourteenth Amendment to remove doubts about the 1866 Act's constitutionality. Others wanted to ensure that no future Congress could repeal its core provisions. The Citizenship Clause written into the Fourteenth Amendment in 1868 paralleled the 1866 Act's citizenship language. The Equal Protection Clause paralleled the act's nondiscrimination language. Representative Samuel Shellabarger argued that the act did not confer new legal benefits on white citizens. No consensus has formed on that question.

  The Fourteenth Amendment was ratified in 1868. Two years later, Congress reenacted the 1866 Act as Section 18 of the Enforcement Act of 1870. That step was meant to dispel any remaining doubt about the statute's constitutional standing. But the practical question of whether the act's protections could be enforced on the ground was a different matter entirely.

• 6. Long Reach

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  The Ku Klux Klan was one of the forces that prevented the Civil Rights Act of 1866 from delivering its promises immediately. Racial discrimination in employment and housing had been technically illegal under federal law since 1866. But federal penalties for those violations did not arrive until the second half of the twentieth century. Without those enforcement mechanisms, victims of discrimination who lacked access to legal assistance were frequently left without recourse.

  The year 1968 brought two decisions that expanded the act's enforcement. Jones v. Mayer and Sullivan v. Little Hunting Park, Inc. both became landmark rulings in the body of remedies available under the 1866 Act. The number of those remedies has continued to grow since then.

  Parts of the original 1866 Act remain enforceable today. Section 1 of the act, as revised and amended, appears in the United States Code as 42 U.S.C. section 1981. Section 2 appears as 18 U.S.C. section 242. Together, these provisions protect the right to make and enforce contracts, to sue and be parties, and to give evidence. They also guarantee the full and equal benefit of all laws for the security of persons and property.

  The Revised Statutes of 1874 gave the act another textual home. The law that Lyman Trumbull wrote in 1866 has been interpreted, amended, and applied by American courts in every decade since.