Many of us have learned some American history surrounding Juneteenth. How much do you know about the Civil Rights Act? When was it enacted? I would have said “In the 60s.” Although that is correct, it is also wrong. It was enacted in 1866!
It flowed directly out of the end of the Civil War. The 13th Amendment abolished slavery, and it empowered Congress, in Section 2, to pass federal law to enforce that abolition.
The Act had an interesting history. As a bill, it passed both houses of Congress in 1865, but was vetoed by President Andrew Johnson. Congress again passed it in 1866, but a Congressional override (a supermajority) of Johnson’s second veto was necessitated. In trying to justify his veto, Johnson made reference to “federal overreach” and “states’ rights.”
The 1866 Act was entitled, in full: “An Act to protect all Persons in the United States in their Civil Rights and liberties, and furnish the Means of their Vindication.” It preceded the 14th Amendment to the Constitution (adopted in 1868), which is the primary wellspring of American jurisprudence regarding equal protection of the law.
It defined American citizenship (without including Indigenous groups) to include “all persons born in the United States” and provided that all citizens should be treated equally under law. It granted (sought to confirm, arguably) all citizens the right to make and enforce contracts, and to own (and pass down) property, real and personal. Its interpretation and application, and that of subsequent Civil Rights Acts and their interpretations in the U.S. Supreme Court, would seek to address other areas of racial discrimination for decades to come, in public accommodations, transportation, rights to hold public office, and even voting rights, for decades to come.
Another civil rights act passed in 1871, and again in 1875, both seeking to address some of the shortcomings of the 1866 Act. Although a complete history is far beyond the scope of this note, here are some seminal occurrences along this timeline:
1856 – Dred Scott v Sanford decision
1865 – 13th Amendment to the U.S. Constitution
1866 – The Civil Rights Act of 1866
1866 – Ku Klux Klan founded
1868 – 14th Amendment to the U.S. Constitution
1871 – The Civil Rights Act of 1871
1876 – The Civil Rights Act of 1875
1883 – The Civil Rights Cases
1896 – Plessy v Ferguson decision (“separate but equal”)
1954 – Brown v Board of Education decision (overruling Plessy v Ferguson)
America has a long history of debate, enactment, reversal, definition and interpretation with the Civil Rights of its citizens. America is, in so many ways, still becoming . . .
1 Thanks to Richard Rothstein, for illuminating the very existence, and importance, of this earlier Civil Rights Act in his volume, The Color of Law, Liveright Publishing Corporation 2017.
Rosi & Gardner, P.C.
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