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Historical Context in Civil Rights Act of 1866

Emancipation and Reconstruction: The backdrop of the 1866 Civil Rights Act was the ambiguous situation of African Americans after the Civil War. In 1863, Lincoln emancipated the slaves through a wartime measure, a move the Union backed up with a decisive victory over the Confederacy two years later. To simply declare the slaves free hardly represented an end to the problems they faced in a racially prejudiced landscape. In the postwar period known as Reconstruction, the South found itself burdened with both a crippled economy and the loss of the unpaid labor force that had previously powered it. When President Andrew Johnson began placing legislative control back into the hands of the Southern states, their governments sought to effectively reinstitute slavery by another name. Thus arrived the “black codes,” pernicious laws designed by ex-Confederates to jumpstart the Southern economy by forcing freedmen—former slaves, most of whom found themselves without property or work—back into servitude. President Johnson’s vision of Reconstruction was to patch up the immediate problems of the postwar South by looking to the past. The Republicans who ran Congress, however, were looking to the future.

Postwar Progressive Legislation: The Republican Congressional party of the 1860s was one of the most active and progressive legislative bodies in United States history. In the five years immediately following the Civil War, between 1865 to 1870, the Republicans passed the Thirteenth, Fourteenth, and Fifteenth Amendments, the Freedmen’s Bureau Bill, the Civil Rights Act, and the four Reconstruction Acts. Altogether, this collection of legislation represents a tremendous degree of social and governmental change. The combined accomplishments of these laws include the eradication of slavery, the granting of full citizenship and protection to African Americans, the establishment of the Freedmen’s Bureau to assist former slaves in the inhospitable conditions of the postwar South, the full enfranchisement of African American men, as well as a broad empowerment of the federal government and an attendant diminishment of states’ rights. Despite the obstacles in the way of progress, namely a deeply conservative president in the oval office, the Radical Republicans altered the course of American history in less than a decade.

Historical Context Examples in Civil Rights Act of 1866:

Text of the Act

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"Sec. 9. And be it further enacted..."   (Text of the Act)

Section 9 grants the president the ability to call upon any force in the US military in order to enforce the Civil Rights Act and to prevent crimes against it. Sections 8 and 9 represent a significant degree of privilege given to the executive branch by the legislative branch. Despite the level of presidential control set forth in the act, President Andrew Johnson criticized and vetoed the act, and even specifically questioned the powers allotted to the president in Section 9.

"Sec. 8. And be it further enacted..."   (Text of the Act)

Section 8 of the act establishes precedents for the executive branch to take direct steps in the enforcement and adjudication of the Civil Rights Act. Specifically, the president is given the power to direct the attentions and actions of judges, marshals, and district attorneys in any district of the nation in order to speed up the process of achieving justice in civil rights cases.

"Sec. 7. And be it further enacted..."   (Text of the Act)

In order to ensure the successful and thorough execution of all warrants related to the enforcement of the Civil Rights Act, the bill includes measures promising to provide enough money to law enforcement officers involved in civil rights-related cases. In addition to a five-dollar bonus offered to commissioners for each case, the act promises to cover all relevant expenses. Such an inclusion supports the notion that Republican lawmakers wanted as few barriers and obstacles as possible with regards to the enforcement of the Civil Rights Act.

"Sec. 6. And be it further enacted..."   (Text of the Act)

Section 6 sets forth explicit measures prohibiting anyone from preventing the enforcement of the Civil Rights Act. This measure is an assertion of federal authority, for it encompasses all Americans, regardless of any state laws that might clash with it. The prohibition takes the form of a threatened misdemeanor charge, set at a maximum sentence of six months of imprisonment and $1,000.

"be fined in the sum of one thousand dollars..."   (Text of the Act)

This passage establishes monetary incentives for federal marshals to regulate the laws set forth in the Civil Rights Act. However, rather than offering marshals money for properly executing warrants, the act threatens to fine them $1,000, a sum equivalent to nearly $15,000 in 2018, adjusted for inflation. Since the marshals serve under the executive and judicial branches, the Civil Rights Act was considered an extension of their duties, and, similar to the military officers assigned to support the Freedmen’s Bureau, additional compensation was not included.

"Sec. 4. And be it further enacted..."   (Text of the Act)

Section 4 advances a similar goal to that of Section 3. While the previous section laid the groundwork for a nationally unified judicial system to process civil rights crimes, Section 4 seeks to create a nationally unified law-enforcement coalition. In a move characteristic of the so-called Radical Republicans of the Reconstruction era, the drafters of this act seek to both spread the jurisdiction of their act across all states and to control the enforcement of it by law enforcement officials at all levels, federal, state, and local.

"Sec. 3. And be it further enacted..."   (Text of the Act)

The central purpose of Section 3 is to instantiate a unified judicial body to oversee civil rights trials in the United States. These trials would concern cases which breach the laws set forth in other sections of the Civil Rights Act as well as the Freedmen’s Bureau Bill of 1865. This is an ambitious aim, for it seeks to organize and direct the actions of state court systems so that they function in unison with the federal court system. This exemplifies one of the guiding principles of the Republicans in Congress during the Reconstruction era: to envision and create a more powerful federal government at the levels of lawmaking, governance, and adjudication.

"the act establishing a Bureau for the relief of Freedmen and Refugees..."   (Text of the Act)

Section 3 of this act, which concerns the reporting of civil rights-related crimes to the court system, expands its domain to the Freedmen’s Bureau. Established in 1866, the Freedmen’s Bureau provided aid and resources to African-American refugees of the Civil War and freedmen, former slaves navigating the postwar South. The Civil Rights Act and Freedmen’s Bureau Bill were similar in their aims—namely to advance the rights and welfare of African Americans. Therefore, it follows that infringements against the Civil Rights Act would overlap with those against the Freedmen’s Bureau Bill.

"the circuit courts of the United States..."   (Text of the Act)

The circuit court system in the United States has its roots in medieval English law, which conceived of a circuit of courts which London-based judges would travel annually, hearing and judging rural cases. The United States has circuit court systems, both at the federal and state levels. The Civil Rights Act enlists the aid of the circuit courts, as well as the more central district courts, in order to further the judicial reach of the Civil Rights Act.

"in every State and Territory in the United States..."   (Text of the Act)

As with many of the bills, acts, and amendments the Republican lawmakers pushed through Congress in the Reconstruction era, the Civil Rights Act grants the federal government supremacy over state governments. The first section of the act stipulates that the citizenship granted to African Americans holds true “in every State and Territory of the United States,” a clause which supersedes the various definitions of citizenship set forth by the states.

"excluding Indians not taxed..."   (Text of the Act)

The phrase “excluding Indians not taxed” appears in numerous pieces of American legislation in the 18th and 19th centuries, including Article I of the Constitution and the Fourteenth Amendment. Vexingly enough, the phrase is never defined in these legal documents. The phrase was also used in federal census-taking instructions throughout much of the 19th century and was only first explicitly defined in 1880. As the 1880 instructions state, “by the phrase ‘Indians not taxed’ is meant Indians living on reservations under the care of Government agents, or roaming individually, or in bands, over unsettled tracts of country.” The purpose of the clause is to exclude Native Americans—specifically those living under their own laws and regulations—from the official count of American voters.

"or by reason of his color or race..."   (Text of the Act)

The singular pronoun “he” in its various forms has historically been used in the English-speaking world to serve as a gender-neutral pronoun for a singular antecedent. However, as seen in the language of the Fourteenth Amendment, the rights granted by that amendment and the 1866 Civil Rights Act were not ubiquitous across genders. For example, women’s suffrage would not be realized until August 26th, 1920.

"as is enjoyed by white citizens, and shall be subject to like..."   (Text of the Act)

The last part of the first section lists the specific rights that American citizens have, as well as the punishments they face for violations. While it may appear redundant to provide such a lengthy list, the Republican Congress was facing obstinate opposition from Southern and Democratic lawmakers, as well as President Johnson, who actively sought ways around providing civil rights to African Americans.

"That all persons born in the United States and not subject to any foreign power..."   (Text of the Act)

The Civil Rights Act of 1866 begins with a clear statement in the first section: all American citizens, regardless of race and color, have the same rights as anyone else. Congress included the clause “of every race and color” to specifically provide a race-based provision for the rights granted by citizenship. While this act did have power to combat the South’s “black codes,” it also serves as a precursor to the Fourteenth Amendment to the United States Constitution, which specifically clarifies the citizenship of all Americans, regardless of race.

"and furnish the Means of their Vindication..."   (Text of the Act)

The first line of the Civil Rights Act of 1866 clearly states its purpose: to not only protect all Americans in their civil rights, but also to offer all of the ways (to “furnish”) in which this protection will be enforced (“the means of their vindication”). With the Emancipation Proclamation, the Thirteenth Amendment, and the end of the Civil War, African Americans found themselves no longer in bondage. However, the institution of slavery had permeated all aspects of social life, and the former Confederate states instituted discriminatory and oppressive “black codes.” To address such policies, the Republican Congress actively sought ways to provide support for African Americans. This act serves as one of them.

"the Constitution guarantees nothing with certainty if it does not insure to the several States the right of making and executing laws in regard to all matters arising within their jurisdiction..."   (Presidential Veto)

Johnson offers another objection to the Civil Rights Act here, though it is more of a general objection to the balance of power between the federal and state governments. According to Johnson, “the Constitution guarantees nothing with certainty if it does not insure to the several States the right of making and executing laws in regard to all matters.” Not only does Johnson decline to cite the portion of the US Constitution upon which he constructs his claim, his assertion is an exaggeration by any standard. The Constitution guarantees many things—rights, regulations, programs, and more—with certainty.

"always essential to the preservation of individual rights; and without impairing the efficiency of ministerial officers, always necessary for the maintenance of public peace and order...."   (Presidential Veto)

Johnson objects to the Civil Rights Act’s attempts to organize the judicial system and marshal service in the proper adjudication and enforcement of the Civil Rights Act. The drafters of the act suspected that there may be either inertia or disobedience with regards to the practical deployment of the Civil Rights Act. Johnson criticizes each one of these attempts to guide these various federal departments, in each case citing a broad principle that would be threatened—“public liberty,” “the preservation of individual rights,” and, most apocalyptically of all, “public peace and order.” In none of these cases does Johnson offer any rationale as to why increased federal ordinance will beget catastrophe. Because Johnson does not offer clear rationale for these objections, instead relying on appealing to public fears, his objections lack persuasive power, revealing that his primary aim is to advance his states’ rights agenda.

"As respects the Territories, they come within the power of Congress, for as to them the lawmaking power is the Federal power; but as to the States no similar provision exists vesting in Congress the power “to make rules and regulations” for them...."   (Presidential Veto)

In this paragraph, Johnson expresses some of the core political philosophies of the Democratic party. The Democrats of the 1860s were the conservatives of their age, interested—as are the Republicans of modern American politics—in downscaling federal taxation, legislation, and control. In the 19th century, one of the central issues dividing Democrats and their more progressive allies, the Republicans, was that of states’ rights. To the Republicans who drafted the Civil Rights Act, there was little question that the federal government ought to be able to pass legislation which implicates every citizen and which supersedes every other level of governance, whether state or civic. The Democrats, Johnson included, fundamentally disagreed with such a vision. To them, states and state governments occupied the same stratum of importance as the federal government. Thus, Johnson questions the validity of federal laws, asserting that for “States no similar provision exists vesting in Congress the power ‘to make rules and regulations’ for them.” To the Republicans controlling Congress, it was clear that state legislatures occupied a lower rung on the lawmaking hierarchy than the Federal Congress. To Johnson, no such hierarchy ought to exist. His veto is built on an argumentative structure that is concerned more with states’ rights than civil rights.

"So, too, they are made subject to the same punishment, pains, and penalties in common with white citizens, and to none other. Thus a perfect equality of the white and colored races is attempted to be fixed by Federal law in every State of the Union over the vast field of State jurisdiction covered by these enumerated rights...."   (Presidential Veto)

In this paragraph, Johnson levels two criticisms against the Civil Rights Act. First, the act offers African Americans the same panoply of rights available to white citizens without explicitly stating the punishments to which they are subject. Johnson seems to ignore that the primary right granted—that of citizenship—inherently entails certain demands and limitations. Second, it is a breach of states’ rights to prevent any state from exercising “any power of discrimination between the different races.” This second point, unrelated to the first, is the crux of Johnson’s veto and lies near the heart of his politics. The issue is states’ rights. Despite his position as the most powerful figure in the federal government, Johnson could not accept an act by which the federal government would supersede the respective desires of the state governments.

"Those rights are, by Federal as well as State laws, secured to all domiciled aliens and foreigners, even before the completion of the process of naturalization;..."   (Presidential Veto)

In this passage, Johnson argues that the Civil Rights Act is unnecessary—the rights it grants are already secured to native-born citizens and foreigners alike, without any need to explicitly delineate the scope or reach of the ruling. John then pivots, stating that anyone wishing to be granted citizenship ought to “pass through a certain probation”; his vision is one of meritocracy. By this logic, it would be unfair to grant citizenship to African Americans without forcing them through a vetting process while continuing to submit foreigners to such a process. If Johnson’s method of argumentation thus far appears to lack cohesion, that is because his points do not follow a logical sequence, emerge from a core principle, or substantiate a central thesis.

"when eleven of the thirty-six States are unrepresented in Congress at the present time,..."   (Presidential Veto)

One of President Johnson’s critiques of the Civil Rights Act is that it was passed in Congress without the presence of the eleven ex-Confederate states of the South. Johnson may have felt frustration at this fact, for one of his first acts as president was to institute his own Reconstruction policies—all without the permission of Congress—which included resurrecting the state governments and legislative bodies of the South. When the new Southern lawmakers arrived in the capitol, however, Johnson watched Congress reject the Southern statesmen. This is the context in which Johnson laments the lack of Southern representation in Congress.

"The power to confer the right of State citizenship is just as exclusively with the several States as the power to confer the right of Federal citizenship is with Congress...."   (Presidential Veto)

Johnson’s objection to Section 1 of the Civil Rights Act reflects one of the most essential political beliefs of the Democratic party, of which Johnson was a member. The Democrats, led by Johnson, represented the conservative end of the political spectrum; the Republicans, the progressive. Then, as now, the conservative agenda included an overarching desire to scale down the powers of the central government and to bolster the autonomy of individual states and local institutions. Perhaps the primary objection Johnson levels at the Civil Rights Act is that it places a tremendous amount of legislative, executive, and judicial power in the hands of the federal government and out of the hands of the states. Johnson is correct in this assertion, and yet he does not fully explain the benefit of denying the Civil Rights Act; in this passage, his chosen cause is that of “state citizenship,” an issue that has rarely, if ever, garnered serious discussion.

"with my sense of duty to the whole people..."   (Presidential Veto)

When Johnson cites his “sense of duty to the whole people,” it is not entirely clear to whom he is referring. It may be that “the whole people” is intended to encompass the Americans not expressly helped by the Civil Rights Act, namely white men. It could also refer to white Southerners, a group that had benefited from disempowering African Americans and that continued to do so throughout the Reconstruction era. In any event, Johnson’s language is vague in its attempts to convey broad concern and therefore constitutes an ineffective piece of rhetoric.

"with my objections to its becoming a law...."   (Presidential Veto)

President Andrew Johnson vetoed the Civil Rights Act, just as he vetoed much of the progressive legislation the Radical Republicans passed in Congress from 1865 to 1869. Johnson’s reasons for the vetoes are difficult to pin down with absolute certainty, but are far from mysterious. Johnson was forever at political and philosophical odds with the Republicans. He was Southern, deeply conservative, and a former slave owner. His vision for Reconstruction was to raise the South to its former state of economic stability, not to drastically change the face of American culture, as the Republicans wished.

"It is another step, or rather stride, toward centralization and the concentration of all legislative powers in the National Government..."   (Presidential Veto)

The Civil Rights Act of 1866 became law on April 9th. It was the first major law to be passed despite a president’s veto. Congress would do this several other times during Johnson’s tenure as president, with this first instance irreparably damaging the relationship between the executive and legislative branches. Johnson’s objections in this veto on constitutional grounds likely motivated Congress to write and pass the Fourteenth Amendment to ensure that civil rights would be protected in the Constitution.

"Besides, the policy of the Government from its origin to the present time seems to have been that persons who are strangers to and unfamiliar with our institutions and our laws should pass through a certain probation..."   (Presidential Veto)

Prior to the Fourteenth Amendment, the United States Congress had passed the Naturalization Act of 1798 and the Naturalization Law of 1802. President Johnson is drawing on the 1802 law, which provided the requirements through which a person may obtain citizenship: be a “free white” person, declare intent to become a citizen three years in advance, remain in residency for five years. Since Johnson advocates for a particular probation, the legal grounding for his logic is flawed. In 1802, when the Naturalization law was written, the country had yet to remove the “free white” requirement, making it an outdated source in the context of the Civil Rights Act.

"In no one of these can any State ever exercise any power of discrimination between the different races.… ..."   (Presidential Veto)

President Johnson’s advocacy for the states to have the right to “exercise any power of discrimination” represents one of the chief points of frustration that Frederick Douglass expressed in his essay “Reconstruction” in December of 1866. Johnson and the conservative Democrats touted the importance of states’ rights; however, Douglass articulated that a lack of consistency across a country only harms a population and that civil rights need to be supported by the federal government to provide safety and security for the citizenry.

"House of Representatives Override..."   (Veto Override)

On April 9, 1866, the House of Representatives voted to override President Johnson’s veto. A vast majority of the House voted in favor of the override, with 122 votes for, 41 against, and 21 abstentions. It was a nearly unanimous vote for the well-represented Republican party, who had 132 seats compared the Democrats’ 41.

"Senate Override..."   (Veto Override)

On April 6, 1866, the Senate successfully voted to override President Johnson’s veto. It was a strong majority vote, with 33 for and 15 against the override. With 37 Republicans in the Senate, compared to the Democrats’ 9, the Republican party had an upper hand in the vote.

"In the Senate of the United States, April 6, 1866. ..."   (Veto Override)

The Senate quickly overrode President Johnson’s veto—just ten days after he made his decision. This quick turnaround on the part of the Senate, and the House of Representatives just three days later, indicates that Republican lawmakers knew that Johnson would object to the legislation. Earlier in 1866, Johnson had vetoed the second Freedmen’s Bureau Bill, which contained many provisions that eventually made their way into the Civil Rights Act of 1866.

"Secretary of the Senate...."   (Veto Override)

In the United States Senate, the Secretary of the Senate is an elected officer who manages the day-to-day operations of the governing body, such as opening and closing daily sessions as well as examining and signing acts that the Senate passes.

"J. W. FORNEY,..."   (Veto Override)

John Weiss Forney (1817–1881) served as Secretary of the Senate from 1861 to 1868, during the presidencies of Abraham Lincoln and Andrew Johnson. After Lincoln’s assassination, Forney supported Johnson for a time, but quickly joined fellow Republicans in Congress in opposing the Johnson’s regressive Reconstruction policies.

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