Civil Rights Act of 1866
|Long title||An Act to protect all Persons in the United States in their Civil Rights and liberties, and furnish the Means of their Vindication.|
|Colloquial acronym(s)||CRA 1866|
|Enacted by the||39th United States Congress|
|Effective||April 9, 1866|
|Public Law||14 Stat. 27-30|
|Civil Rights Act of 1991 (Section 1981) P.L. 102–166|
|United States Supreme Court cases|
|Jones v. Alfred H. Mayer Co. (1968)
Saint Francis College v. al-Khazraji (1987)
Domino's Pizza, Inc. v. McDonald (2006)
The Civil Rights Act of 1866, 14 Stat. 27-30, enacted April 9, 1866, is a United States federal law 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 in 1865 but vetoed by President Andrew Johnson. In April 1866 Congress again passed the bill. Although Johnson again vetoed it, a two-thirds majority in each house overcame the veto and the bill became law.
It provides for the equality of citizens of the United States in the enjoyment of "civil rights and immunities." What do these terms mean? Do they mean that in all things civil, social, political, all citizens, without distinction of race or color, shall be equal? By no means can they be so construed. Do they mean that all citizens shall vote in the several States? No; for suffrage is a political right which has been left under the control of the several States, subject to the action of Congress only when it becomes necessary to enforce the guarantee of a republican form of government (protection against a monarchy). Nor do they mean that all citizens shall sit on the juries, or that their children shall attend the same schools. The definition given to the term "civil rights" in Bouvier's Law Dictionary is very concise, and is supported by the best authority. It is this: "Civil rights are those which have no relation to the establishment, support, or management of government." From this it is easy to gather an understanding that civil rights are the natural rights of man; and these are the rights which this bill proposes to protect every citizen in the enjoyment of throughout the entire dominion of the Republic. But what of the term immunities? What is an immunity? Simply "freedom or exemption from obligation;" an immunity is "a right of exemption only," as "an exemption from serving in an office, or performing duties which the law generally requires other citizens to perform. This is all that is intended by the word "immunities" as used in this bill. It merely secures to citizens of the United States equality in the exemptions of the law. A colored citizen shall not, because he is colored, be subjected to obligations, duties, pains, and penalties from which other citizens are exempted. Whatever exemptions there may be shall apply to all citizens alike.
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 were enjoyed by 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."
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, § 1981, is based on section one of the Civil Rights Act of 1866.
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. In the 20th 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.
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.
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. Congressman Samuel Shellabarger said that it did not.
After the Civil Rights Act of 1866 had been enacted into law over President Andrew Johnson's veto, some members of Congress voted for the Fourteenth Amendment in order to eliminate doubts about the constitutionality of the Civil Rights Act of 1866, or to ensure that no subsequent Congress could later repeal or alter the main provisions of that Act. 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. John A. Bingham, principal author the Equal Protection Clause, stated that the purpose of the first section of the Fourteenth Amendment was to codify provisions of the Civil Rights Bill of 1866 under the U.S. Constitution. Bingham cited following provision of the act:
And such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, 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 (execution, imprisonment) and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.
After Bingham cited this provision he said:
I say, with all my heart, that that should be the law of every State, by the voluntary act of every State. The law in every State should be just; it should be no respecter of persons. It is otherwise now, and it has been otherwise for many years in many of the States of the Union. I should remedy that not by an arbitrary assumption of power, but by amending the Constitution of the United States, expressly prohibiting the States from any such abuse of power in the future.
Black status and activism
The National Equal Rights League (NERL) was led by John Mercer Langston. Dew, looking at the speeches letters of the main spokesmen, argues that there was no mention of social rights. Republican leaders Trumbull, Grimes, Julian, and Fessenden never mentioned racial integration. Congressmen Schuyler Colfax, John Sherman, Carl Schurz, Henry Lane, and Robert Schenck took the Radical Republican positions articulated by Senator Charles Sumner and House leader Thaddeus Stevens; they did not speak of social equality. Radicals such as Thaddeus Stevens, Benjamin Wade and George Julian said whites were socially, intellectually, and morally superior to blacks.
Aftermath and consequences
The activities of insurgent groups such as the Ku Klux Klan (KKK) 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.
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.
- Congressional Globe, House of Representatives, 39th Congress, 1st Session, p. 1117 (1866).
- Halbrook, Stephen. Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, 1866-1876, page 29 (Greenwood Publishing Group 1998).
- 42 U.S.C. § 1981
- See Civil Rights Act of 1866 (full text) via the Online Library of Liberty.
- Salzman, Lawrence. "Civil Rights Act of 1866" in Encyclopedia of American Civil Liberties, by Paul Finkelman, Volume 1, pages 299-300 (CRC Press, 2006).
- Bogen, David. Privileges and Immunities: Reference Guide to the United States Constitution, page 43 (Greenwood Publishing Group, 2003).
- Lund, Nelson. "Two Faces of Judicial Restraint (Or Are There More?) in McDonald v. Chicago", Florida Law Review (forthcoming).
- Harrison, John. "Reconstructing the Privileges or Immunities Clause", 10 Yale Law Journal 1385 (1992).
- Congressional Globe, House of Representatives, 39th Congress, 1st Session, page 1293 (1866).
- Johnson, Andrew. "Veto of the Civil Rights Bill" (March 27, 1866).
- Belz (2000)
- Jones v. Mayer, 392 U.S. 409 (1968).
- Yen, Chin-Yung. Rights of citizens and persons under the Fourteenth amendment, page 7 (New Era Printing Company 1905).
- See McDonald v. Chicago, 561 U.S. (2010).
- Madison, P.A. (2 August 2010). "Historical Analysis of the Meaning of the 14th Amendment's First Section". Retrieved 19 January 2013.
- See Enforcement Act of 1870 (full text) via the Online Library of Liberty.
- Lee Allen Dew, "The Reluctant Radicals of 1866," Midwest Quarterly (Spring 1967) 8#3 pp 261-276
- Player (2004).
- 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)
- Texts on Wikisource: