Civil Rights Act of 1866

Impact

The Civil Rights Act of 1866 represented the first effort of Congress to pass a civil rights bill. That the act conferred citizenship on former slaves, enumerated civil rights, supplied various methods of enforcement by both executive officials and judges, and imposed penalties and punishments on officials for failing to perform their duties speaks volumes for the effort of Congress to provide legal equality for Blacks and whites under state laws. The act reversed the historic status of Blacks before the law in clear and certain terms. At the creation of the Republic, Blacks had been dealt their fate from the bottom of the deck. They were not legal persons and therefore had no legal rights. The act thus offered the promise of a monumental leap forward.

At a minimum, the Civil Rights Act was designed to destroy the repressive effects of the Black Codes. State officials would be barred by the terms of the statute from denying to Black Americans the opportunity to exercise their newly granted rights to buy and sell property, negotiate and sign contracts, and initiate lawsuits, among others. But the act had limitations. It did not confer political rights; the franchise, for example was not extended on a national basis. That decision remained in the hands of the states. And, significantly, it did not apply to private action but only to state actors. Senator Lyman Trumbull, chair of the Senate Judiciary Committee and author of the bill, described its benefits for new freedmen as the “right to acquire property, the right to come and go at pleasure, the right to enforce rights, to make contracts” (Avins, p. 122).

The effectiveness of the Civil Rights Act was dampened, immediately, when President Andrew Johnson vetoed the measure. His opposition, on political, policy, and legal grounds, afforded southerners ammunition to attack the bill and curb its promise. Moreover, the reconstruction of the United States was fragile, and sea-changing provisions of the statute were not easily incorporated by a nation struggling to find its balance. The political climate in the South, moreover, was not conducive to effecting support for Blacks. The Republican Party did not find success in the region, a failure that was in part attributable to Johnson's patronage and pardon policies, which were supportive of the Democrats. In truth, not all Republicans supported the efforts to promote equality. Racial animosity and violence against Blacks reflected  in part the lectures and harangues from the Johnson White House that exploited the tensions surrounding the policies and fed the frustrations of citizens anxious about their own recovery. The violations of the rights of new freedmen largely went unpunished. The remedies were for the most part useless in a system in which the army, which might have aided Blacks, was being hamstrung by a Justice Department that was controlled by the White House. At bottom, a statute that did not protect Blacks against private acts was destined to be less than adequate. That lesson was seen as well in the failure of the Fourteenth Amendment, at least as far as the Supreme Court was concerned, to prevent private acts of racial discrimination, the most far-reaching and notorious of actions undermining the cause of freedom for the former slaves.

The passage of the Civil Rights Act generated questions about whether it was constitutional. Some argued that it was a necessary and proper exercise of congressional power under the Thirteenth Amendment to eliminate slavery. Doubts were laid to rest, however, with the approval of the Fourteenth Amendment, widely viewed as constitutionalizing the Civil Rights Act, that is, incorporating or embodying its provisions in the amendment. Still, controversy surrounds the intentions of the framers of the Fourteenth Amendment, including heated debate on the question of whether it outlaws private acts of discrimination as well as the uncontested prohibition on discrimination by state actors.

The courts have transformed the Civil Rights Act into one of the nation's most important civil rights laws, far beyond its initial goal of undercutting the Black Codes. Over the years, the 1866 legislation has been revised and reenacted in different sections of the U.S. Code, but despite the legislative partitions, the original legislation has enjoyed a measure of vindication. For example, courts have divided on the issue of whether states might ban interracial marriages. Some courts found such marriages to be protected under Section 1 of the statute. It was not until 1967 that the Supreme Court, in Loving v. Virginia, held that interracial marriages were protected by the Fourteenth Amendment. In addition, some courts invoked Section 1 to strike down state laws that prohibited Blacks from testifying against whites. In the 1870s, Section 1 lost much of its relevance, since issues involving its interpretation could be considered in light of the Fourteenth Amendment.

In what some critics have characterized as an exercise in judicial revisionism, the Supreme Court, in Jones v. Alfred H. Mayer Co. (1968), found that Congress did, under the 1866 act and the Thirteenth Amendment, outlaw private acts of racial discrimination. As a consequence, the Civil Rights Act became a powerful weapon in banning discrimination in the sale or lease of all housing, employment matters, schools, and virtually all contracts. Thus the impact and potential of the act were, perhaps, greater and more extensive than its architects had imagined.