Civil Rights Act of 1866

The Civil Rights Act of 1866 became law on April 9, 1866, by a two-thirds majority overriding President Andrew Johnson’s veto. The first aim of the Act was to provide federal protection to emancipated African Americans, giving practical effect to the Thirteenth Amendment. It was the first in a series of Reconstruction- era Civil Rights Acts.

An immediate concern of the Thirty-Ninth Congress was to invalidate the Black Codes emerging from southern legislatures after the Civil War. Promulgated first in 1865, these laws limited the civil rights of freedmen to own real and personal property, to freely seek employment or redress in the courts on terms equal to whites, and established harsher criminal penalties for blacks than for whites, among other depredations.

Although early Black Codes were invalidated by the Act, oppressive elements of them were renewed and survived the Act, such as vagrancy laws that put blacks without employment in jeopardy of being jailed, fined, or forced into compulsory labor. Together with terrorizing effects of the Ku Klux Klan and similar organizations, the purposes of the Act were substantially undermined.

Sections 1 and 2 of the Act have proved most important in the history of civil rights. Section 1 declared all persons born in the United States, excepting Indians not taxed, as citizens of the United States, contrary to the decision of Dred Scott v. Sandford. It granted to all citizens the right ‘‘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 and property, as is enjoyed by white citizens.’’ Section 2 provided a criminal penalty for persons who, under color of state law, deprived any citizen of the rights granted on account of race. This was a significant expansion of basic rights and liberties to former slaves. While not specifically protecting freedom of expression, the law was designed to guarantee minimum due process protections for former slaves, and many of the law-makers believed this would help protect their rights to speech, petition, and assembly. The act would also lead to the Fourteenth Amendment, which ultimately made most of the Bill of Rights applicable to the states.

James Wilson sponsored the Act in the House of Representatives; Lyman Trumbull in the Senate. The latter captured its spirit with the statement that ‘‘any statute which is not equal to all, and which deprives any citizen of civil rights which are secured to other citizens, is an unjust encroachment upon his liberty; and is, in fact, a badge of servitude which, by the Constitution, is prohibited.’’

Whether the Act was within the Constitutional authority of the federal government, however, was a controversial point in Congress. Representative John Bingham, a framer of the Fourteenth Amendment, strongly supported the aims of the Act but believed it beyond constitutional authority. This cloud was a substantial motivation for the ratification of the Amendment, which eliminated any uncertainty.

The Act was reenacted in full by the Enforcement Act of 1870. Sections 1 and 2 of the Act are perpetuated in 42 U.S.C. }} 1981-82, which is the form in which it has remained relevant to modern controversies.

Jones v. Alfred H. Mayer Co., decided by the Court in 1968, addressed a complaint by Jones and his wife that a housing developer refused to sell them a residence on account of their race. The Court held on the basis of its reading of the legislative history of the Civil Rights Act of 1866 that 42 U.S.C. } 1982 prohibited ‘‘all racial discrimination, private as well as public, in the sale or rental of property, and that the statute, thus construed, is a valid exercise of the power of Congress to enforce the Thirteenth Amendment.’’

A dissent took strong objection to the majority’s account of the legislative history, declaring it ‘‘ill considered and ill-advised’’ to apply the Act to private discrimination, rather than solely to state action. It had been clear to the Court in 1883 in the Civil Rights Cases, for instance, that the Act ‘‘was intended to counteract State laws and proceedings, and customs having the force of law’’ and not the actions of individuals without color of state law. The Civil Rights Cases invalidated the Civil Rights Act of 1875, however, and as to the 1866 Act its discussion was dicta.

The majority interpretation was extended to section 42 U.S.C. } 1981 in Runyon v. McCrary, which held that the Civil Rights Act of 1866, as codified the United States Code, prohibits racial discrimination generally in the making and enforcement of private contracts.

Regardless of the merits of dissenting opinions, the principle that the 1866 Civil Rights Act prohibits private racial discrimination was expressly reaffirmed in Patterson v. McClean Credit Union, after the Court invited arguments to reconsider the issue and has not since been in jeopardy of reversal.

LAWRENCE G. SALZMAN

References and Further Reading

• Bernstein, David E. Only One Place of Redress: African Americans, Labor Regulations and the Courts from Reconstruction to the New Deal. Duke University Press, 2001.
• Bickel, Alexander M., The Original Understanding and the Segregation Decision, Harvard L. Rev. 1 (1955): 69.
• Fairman, Charles. 7 History of the Supreme Court of the United States: Reconstruction and Reunion 1864–1868, 1207–1300, MacMillan Co., 1971.
• Foner, Eric. Reconstruction: America’s Unfinished Revolution 1863–1877. New York: Harper & Row, 1988.

Cases and Statutes Cited

• Civil Rights Act of 1875, 18 Stat. 335 (1875)
• Civil Rights Cases, 109 U.S. 3 (1883)
• Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856)
• Enforcement Act of 1870, 16 Stat. 141 (1870)
• 42 U.S.C. }} 1981–82 Jones et ux. v. Alfred H. Mayer Co., et al., 392 U.S. 409 (1968)
• Patterson v. McClean Credit Union, 491 U.S. 164 (1989)
• Runyon v. McCrary, 427 U.S. 160 (1976)

See also Bingham, John Armor; Civil Rights Act of 1875; Civil Rights Cases, 109 U.S. 3 (1883); Dred Scott v. Sandford, 60 U.S. 393 (1857); Fourteenth Amendment; Ku Klux Klan; Slavery and Civil Liberties; Thirteenth Amendment; Vagrancy Laws