civil rights act of 1866 and thirteenth amendment and right to contract

The debate over the scope of the 13th Amendment, which I discussed earlier, preoccupied the Congress in 1864 and 1865. In a nutshell the concern was whether the Amendment should be read narrowly, as only proscribing the "peculiar institution" of chattel slavery, or broadly, as giving Congress power to outlaw what became known as the "badges and incidents" of slavery. That is, did the Amendment only have a negative reach (eliminating slavery) or could it also be seen as a positive authorization to grant additional powers/rights to the freed slaves? Different Congressmen would answer that question differently. Therefore, we are not going to find a single bright thread in the legislative history where all interpret things in the same way.

Significant for me, however, is the passage of legislation creating the Freedman's Bureau in 1865. The Bureau was created precisely because Congress felt that Blacks needed both protection and assistance in trying to adjust to the new life after slavery. Why would Congress create such a Bureau, with such extensive powers, if it saw the Amendment as having quite limited scope? As an indication of how the Freedman's Bureau and the concept of expanding civil rights were linked, once the 39th Congress convened in December 1865, two bills, extending the life of the Freedman's Bureau (S. 60) and the Civil Rights Bill (S.61) were introduced on the same day (January 5, 1866).

Understanding the Bill's Background

Two urgent factors stimulated quick Congressional action on a civil rights bill. First, the passage of the Black Codes by eight of the Southern States in the last half of 1865 signaled to all who had ears to hear that much of the South seemingly wanted to return to the status quo ante, even if they had to give up the institution of slavery. In the mind of many, the concept of freed Blacks did not carry with it the notion of equal rights for Blacks. Second, President Andrew Johnson, in a move that he came to regret, appointed Brigadier General Carl Schurz to travel through the South in Fall 1865 to document the condition of the freed slaves. His report, which received ample airing in the Northern press, fueled Radical Republican fears that the South was indeed attempting to create a system parallel to the now discredited slave system. Thus, when the Civil Rights Act of 1866 was introduced, its major substantive provision defined the nature of the new citizenship that was open to Blacks now that slavery was abolished. It intended to "fill out" the meaning of the 13th Amendment as well as to nip the Black Codes in the bud.

Introducing The Act

The Bill would emerge from the Senate Judiciary Committee, chaired by Moderate Republican Lyman Trumbull from IL. (The Fourteenth Amendment, which the 39th Congress would also approve in Spring 1866 and send to the States, emerged however from the Joint Committee on Reconstruction, co-chaired by Fessenden in the Senate and Stevens in the House). Trumbull connected the 13th Amendment and the Act in these words:

"Mr. President, I regard the bill to which the attention of the Senate is now called as the most important measure that has been under consideration since the adoption of the constitutional amendment abolishing slavery. That amendment declared that all persons in the United States should be free. This measure is intended to give effect to that declaration..." Congressional Globe, 39th Congress, First Session, p. 474.

Thus, Section 1 of the Act, preserved as Ch. 31 in the collected laws of the 39th Congress, 12 Stat. 27-29, began as follows:

"That 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*; 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..."

[*The notion of national citizenship is something new in this Act. I will explore how this phrase, which is also incorporated in Sec. 1 of the 14th Amendment, served to overrule the holding in the Dred Scott case when I look at that Amendment.]

Before getting to an enumeration of the rights involved in the 'same right,' however, we should pause and consider that an earlier version of the Act, rejected by the House, had one other clause in this section. It would have provided, after the words "and such citizens": "and that there shall be no discrimination in civil rights or immunities..." This clause is fascinating because it introduces the phrase, "rights and immunities," which would be similar to language in the 14th Amendment*,

[*The phrase "Privileges and Immunities" already appeared in Art. 4, Sec. 2 of the Constitution. "The Citizens of each States shall be entitled to all Privileges and Immunities of Citizens in the several States."]

and it emphasizes that there should be no discrimination among citizens. The House replaced the latter phrase with its own: "as is enjoyed by white citizens," with which the Senate concurred. Several members of the House were concerned that the "no discrimination" clause would pave the way for interracial marriages and declarations that miscegenation statutes, which were only struck down a century later, might be unconstitutional.

Conclusion

What I hadn't previously pointed out, which this essay illustrates, is that the CRA of 1866 is sort of sandwiched between two Constitutional Amendments: the 13th and 14th. It looks backwards to the former, because it tries to fill out the meaning of emancipation by articulating civil rights now available to Blacks, but it anticipates the latter by using phrases that would also appear there. Yet the actual rights conferred by the CRA of 1866 should not be overloooked. The next essay considers them.

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