This week I am taking a close look at the 1866 Civil Rights Act. This was our first Federal civil rights act barring many forms of racial discrimination.
Perhaps the most important part of the Civil Rights Act is up front in Section 1, The Citizenship Clause. Here is the text of that section of the bill as it was enacted:
An Act to protect all Persons in the United States in their Civil Rights, and furnish the Means of their Vindication.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, 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, in every State and Territory in the United States, 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 proceedings 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.
This first section might seem like an unnecessary part of the bill, since slavery had already been ended the year before by the 13th Amendment abolishing slavery. While slavery had ended in 1865, the legal status of former slaves was still up in the air. Remember that Chief Justice Taney in the infamous Dred Scott decision had said that a slave had no rights that a white person was bound to respect. Did ending slavery give blacks a bundle of rights? Not in the opinion of the white men who controlled most former Confederate states. State after state in the South passed Black Codes in 1865 and 1866 effectively requiring black people to stay in conditions of servitude and depriving them of the most basic rights. Some former Confederates even suggested that since blacks were not citizens they could simply be deported as a class akin to undesirable aliens. If black people were not citizens, what right did they have to even live in the United States.
So, the first thing the Civil Rights Act did was assert that anyone born in the United States is a citizen. That is still controversial today. Even the Republicans who included it in the Civil Rights Act felt it needed further bolstering by making it the first article of the 14th Amendment introduced the following year.
The remainder of the bill’s first section makes a general assertion of a right to non-discrimination for citizens. This part of Section 1 specifies many of the forms of discrimination freedpeople experienced in 1866 that were now illegal. Its drafters knewfor example, that laws had recently been passed in the South creating different, harsher, penalties for many crimes if the defendant was black. So, for example, the Act says that blacks and whites “shall be subject to like punishment, pains, and penalties.” This was a direct solution to the intentional discrimination in the Black Codes.
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