CIVIL RIGHTS ACT OF 1866 (FRAMING) 14 Stat. 27

Responding to the black codes, Congress in 1866 passed its first civil rights bill to enforce the thirteenth amendment. The bill's definition of national citizenship superseded the decision in dred scott v. sandford (1857), which had excluded blacks. A citizen was any person not an Indian or of foreign allegiance born in any state or territory, regardless of color. All citizens were to enjoy full and equal protection of all laws and procedures for the protection of persons and property, and be subject to like punishments without regard to former slave status. In all jurisdictions citizens were to have equal rights to sue, contract, witness, purchase, lease, sell, inherit, or otherwise convey personal or real property. Anyone who, "under color of any law … or custom," prevented any person from enjoying those rights, or who subjected any person to discriminatory criminal punishments because of race or previous involuntary servitude, was subject to misdemeanor prosecutions in federal courts. Congress further authorized the removalofcases from state to federal courts of persons denied civil rights and of federal officer defendants, prosecuted by states, protecting civil rights; that provision connected the civil rights bill to the freedmen ' sbureau and the habeas corpus statutes. All federal officials could initiate proceedings under the bill. Federal judges were to appoint special commissioners to enforce judgments under the bill (a use of fugitive slave law processes for opposite purposes). Alternatively, judges could employ the army or state militias, under the President's command, as posses. Last, Congress expanded the Supreme Court's appellate jurisdiction to include questions of law arising from the statute.

President andrew johnson's powerful veto of the Civil Rights Bill, though overridden by Congress, touched both honorable traditions of the states' monopoly of rights and ignoble concepts of race hierarchy. He insisted that the bill would create a centralized military despotism and invoked the recent ex parte milligan (1866) decision. Congress, he argued, was creating black citizens of the same states it was excluding from representation.

Though trenchant, the veto never touched on the question of the remedies available to injured citizens or the nation, when states failed to carry out their duty to treat their own citizens equally. If no statutory remedies existed, then both nation and states were returned to the conditions of 1860. Anxious to make clear the fact of the nation's advance from that pitiable condition, the Congress pushed ahead with a fourteenth amendment proposal and, in 1867, resorted to military reconstruction as a desperate stop-gap.

But the Fourteenth Amendment, unlike the Thirteenth (which the Civil Rights Act enforced) constrained only state action, at least according to Supreme Court judgments commencing with the Slaughterhouse case (1873). In May 1870, the Congress "re-enacted" the 1866 Civil Rights law, this time under the Fourteenth and fifteenth amendments (though section 16 of the 1870 law still punished discriminatory felonious private acts). In 1874, a revision of the federal statutes appeared, breaking up the text of the 1866 statute into scattered sections.

Harold M. Hyman
(1986)

(see also: Section 1983, Title 42, United States Code.)

Bibliography

Howe, M.A. Dewolfe 1965 Federalism and Civil Rights. [Massachusetts Historical Society] Proceedings 77:15–27.

Hyman, Harold M. and Wiecek, William M. 1982 Equal Justice under Law: Constitutional Development 1835–1875. Chaps. 9–11. New York: Harper & Row.

Kaczorowski, Robert J. 1971 Nationalization of Civil Rights: Theory and Practice in a Racist Society, 1866–1883. Ph.D. diss., University of Minnesota.