On April 9, 1866, 150 years ago, the Civil Rights Act of 1866 was passed by Congress. While it was not the brutal struggle of the Civil War, enacting the legislation was an embattled affair, replete with constitutional implications that set the stage for impeachment of a president. Later, the law would be gutted by a partisan federal Supreme Court and Jim Crow legislation in the states. However, the spirit of the law would be resurrected in the 20th century by Congress and the courts, extending its provisions in social, economic and political arenas. Today, the 1866 law has implications in defining the meaning of equality for race, gender and age.
To the Senate of the United States:
I regret that the bill which has passed both Houses of Congress, entitled “An Act to protect all persons in the United States in their civil rights, and furnish the means of their vindication,” contains provisions which I cannot approve, consistently with my sense of duty to the whole people, and my obligations to the Constitution of the United States. I am, therefore, constrained to return it to the Senate (the House in which it originated) with my objections to its becoming law.
Washington, D.C., March 27, 1866.
With this veto message to Congress, President Andrew Johnson rejected the Civil Rights Act of 1866.
The act had its genesis in the Emancipation Proclamation of 1863, which proclaimed all persons held as slaves within the states in rebellion are “thenceforth and forever free.” After ratification of the Thirteenth Amendment in 1865, Congress believed the logical next step was to define citizenship and equal protection under the law for all Americans. Moderate Republican Senator Lyman Trumbull of Illinois sponsored “An Act to protect all persons in the United States in their civil rights, and furnish the means of their vindication” and believed President Johnson would sign the bill as a compromise against other more onerous bills being proposed by Senator Thaddeus Stevens and the Radical Republics. However, President Johnson believed the act violated states’ rights and his veto set off a political firestorm that emboldened the Radical Republicans and eventually led to Johnson’s impeachment. Within three weeks after the veto, Congress passed the bill with the required 2/3rds majority, marking the first time that a presidential veto on a major piece of legislation had been overturned.
The Civil Rights Act of 1866 reversed the 1857 Supreme Court ruling in Dred Scott v. Sanford, which denied a native-born, free African American the right to sue in court. In a ruling written by Chief Justice Roger B. Taney, the Court decided that because Scott’s ancestors were from Africa and thus, he was wasn’t a citizen, he had no right to take the case to court. The 1866 legislation also sought to overrule the Black Codes, laws passed by Southern states to restrict African Americans’ freedom after the Civil War. The act declared “all persons born in the United States” (with the exception of American Indians) were "hereby declared to be citizens of the United States" and that “such citizens of every race and color . . . shall have the same right . . . as is enjoyed by white citizens . . .” It was the first federal law that granted all citizens equal protection under the law regardless of race or color. These rights would soon be preserved in the Constitution through the Fourteenth Amendment (1868) which addressed citizenship and equal protection under the law.
As the name implies, the 1866 act granted individuals protection in their “civil rights,” such as the right to make and enforce contracts, to sue, to inherit, purchase, lease, sell, and to hold real and personal property. However, these were not considered “political rights” which would involve the right to vote and hold public office or “social rights” relating to equal access to public accommodations. These rights would come many decades later during the late nineteenth and twentieth centuries, beginning with the Fifteenth Amendment, court decisions, further Congressional legislation, and petitioning the government through public demonstrations.
Since its enactment, central provisions of the Civil Rights Act of 1866 have been put forth to test the range of citizens’ social and political rights. The belief was that if all citizens are equally protected under the law, then they are protected in all areas of the law. But the path was not an easy one. While Congress attempted to extend the 1866 law’s provisions with the Fourteenth and Fifteenth amendments and the Civil Rights Acts of 1870 and 1875, the post-Reconstruction Supreme Court, in a multitude of cases known collectively as The Civil Rights Cases (1883), handed down decisions that struck down every one of these actions. In total, the Court ruled that the Civil Rights Act of 1866 (and by extension the Fourteenth Amendment, et. al.) did not have authority in the private sector. The Court decided that the laws and the amendments only prevented states from discriminatory actions not private individuals or organizations. The result was African Americans (and other citizen minorities) were relegated to inferior status in nearly all areas of political, economic and social life. The Supreme Court capped this off with its decision in Plessy v. Ferguson (1896) declaring that separate accommodations were legal as long as they were equal. Following these cases, Congress and the Executive Branch withdrew from taking substantive civil rights action for nearly a century, leaving African Americans at the mercy of Jim Crow laws and second class status.
In the 20th century, civil rights advocates once again brought forth the spirit of the 19th century Civil Rights Acts and the Fourteenth Amendment to challenge segregation and extend the meaning of equal protection. Provisions of the 1866 and 1875 acts were incorporated into the Civil Rights Acts of 1964 and 1968 and the Voting Rights Act of 1965. The 1866 legislation has also been utilized in the courts to challenge both public and private job and housing discrimination on the basis of race. Today, cases that often come before the Supreme Court—affirmative action, voting rights, abortion, and marriage rights—will draw legal precedent from various provisions of the Civil Rights Act of 1866.