Civil Rights Act of 1866 II
Bill Long 8/18/05
Defining The Contours of Civil Rights
The purpose of this essay is to review the remainder of Sect. 1 of the CRA of 1866 and then to discuss two large issues that were before Congress when the Act was passed: (1) whether Congress had authority to pass the Act and (2) whether the Act reaches private acts of discrimination or only is confined to discriminatory state action.
Understanding Section 1
Though Congress dropped the "rights and immunities" clause in Section 1, it listed several rights now open to Black people which were understood under the concept of "privileges and immunities." It provided:
"[All persons..shall have the same 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 procedings for the security of person 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."
Forty years prior to this, Justice Bushrod Washington, riding circuit, referred to a bundle of rights that he called "fundamental," which help illumine the nature of the 1866 Act.
"which [rights] belong, of right, to the citizens of all free governments; ....they may...be comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one state to pass through, or to reside in any other state...to claim the benefit of the writ of habeas corups; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than ar epaid by the other citizens of the state.." Corfield v. Coryell (1823).
Four basic rights are laid out in the Act: (1) the rights to legal process; (2) broad rights to contract; (3) full and equal benefits of the laws; and (4) like (but not more severe) punishments. In addition, the 1866 Act should be understood as a direct repudiation of some of the Black Codes, which had limited the ability of Blacks to give testimony or to own property.
The Problem of Congressional Power
One of the debates in Congress during Winter 1866 was whether Congress in fact had power to enact such a sweeping Act. It was passed under Sect. 2 of the 13th Amendment, granting Congress authority to enforce the Amendment with appropriate legislation. Yet, several Senators objected. Senator Cowan said:
"[the thirteenth] amendment, everybody knows and nobody dare deny, was simply made to liberate the negro slave from his master. That is all there is of it" (CG, 39th Cong, 1st Sess., 499).
Yet, the Radical Republican Senator Howard could say,
"I happened to be a member of the Judiciary Committe at the time this amendment was drafted and adopted...It was in contemplation of friends and advocates to give to Congress precisely the power over the subject of slavery and the freedom which is proposed to be exercised by the bill now under our consideration...Its intention was to make [the Negro] the opposite of a slave, to make him a freeman" (Id. at 503-04).
However, even someone as radical as John Bingham (OH) thought that this legislation was outside the scope of Congressional power. This issue actually would not be settled by the Supreme Court until the 20th century (they agreed the Act was constitutional); in the meantime Congress passed the 14th Amendment and re-enacted the CRA of 1866, which certainly would make the re-enacted (and slightly different) Act constitutional.
The Reach of the CRA of 1866
The notion of the "reach" or "scope" of the Act ought not to be missed. Did Congress, in passing the Act, want to proscribe private acts of discrimination, such as discrimination in purchasing property or in a private contract, or was it only intending to prohibit discriminatory actions done under the color of state law? Section 2 of the Act seems to support the latter approach:
"That any person who, under color of any law, statute, ordinance, regulation, or custom, shall subject, or cause to be subjected....any inhabitant..to the deprivation of any right secured..by this act...shall be deemed guilty of a misdemeanor."
Yet, Sec. 1 makes no reference to a state action and, for many people, it would have been inconceivable for a Congress, which was well aware of the private acts of discrimination reported by Carl Schurz, to pass a law that would only protect freedmen if state-sponsored actions were in view. Indeed, the Supreme Court ultimately (in 1968) decided that the langauge "the same right" in Sec. 1 meant that the statute encompassed freedom from discrimination by both the government and private persons.
When seen in its historical context, we understand both the clarity and ambiguity of the CRA of 1866. Its clarity resides in its repudiation of the Black Codes and its bringing civil rights, enumerated above, to all citizens. Its ambiguity in 1866 rested primarily, however, on whether the basic civil rights were a prelude to, bound up with, or in any way related to rights to vote and to have access to accommodations available to the White society. As is often the case when controversial legislation passes (and this was vetoed by President Johnson, though Congress overrode his veto in April 1866), people just "agree to disagree" about its meaning, considering that the Courts will, over the next decades, limn its meaning for America. That story will be told in later essays.
Copyright © 2004-2008 William R. Long