Civil Rights Act of 1866 - Enactment, Constitutionalization, and Reenactment

Enactment, Constitutionalization, and Reenactment

Senator Lyman Trumbull was the Senate sponsor of the Civil Rights Act of 1866, and he argued that Congress had power to enact it in order to eliminate a discriminatory "badge of servitude" prohibited by the Thirteenth Amendment. In the 20th century, the U.S. Supreme Court ultimately adopted Trumbull's Thirteenth Amendment rationale for congressional power to ban racial discrimination by states and by private parties, in view of the fact that the Thirteenth Amendment does not require a state actor.

To the extent that the Civil Rights Act of 1866 may have been intended to go beyond preventing discrimination, by conferring particular rights on all citizens, the constitutional power of Congress to do that was more questionable. For example, Congressman William Lawrence argued that Congress had power to enact the statute because of the Privileges and Immunities Clause in Article IV of the original unamended Constitution, even though courts had suggested otherwise.

In any event, there is currently no consensus that the language of the Civil Rights Act of 1866 actually purports to confer any legal benefits upon white citizens. Congressman Samuel Shellabarger said that it did not.

After the Civil Rights Act of 1866 had been enacted into law over President Andrew Johnson's veto, some members of Congress voted for the Fourteenth Amendment in order to eliminate doubts about the constitutionality of the Civil Rights Act of 1866, or to ensure that no subsequent Congress could later repeal or alter the main provisions of that Act. Thus, the Citizenship Clause in the Fourteenth Amendment parallels citizenship language in the Civil Rights Act of 1866, and likewise the Equal Protection Clause parallels nondiscrimination language in the 1866 Act; the extent to which other clauses in the Fourteenth Amendment may have incorporated elements of the Civil Rights Act of 1866 is a matter of continuing debate.

Ratification of the Fourteenth Amendment was completed in 1868. Two years later, the 1866 Act was reenacted, as Section 18 of the Enforcement Act of 1870.