Though many civil rights laws have helped create a more egalitarian American society, looking back to the nation’s first law protecting civil rights after the end of slavery offers fresh insight into lingering questions still debated today, writes George Rutherglen, a professor in the University of Virginia School of Law, in his new book.
“Civil Rights in the Shadow of Slavery” examines the legacy of the Civil Rights Act of 1866, a law passed by Congress soon after the Civil War ended.
In 1866, the Supreme Court decision in Dred Scott v. Sanford, which said African-Americans were not citizens, was still formally in effect. Slavery had been abolished, but the legal status and legal rights of the former slaves remained unsettled. The 1866 act was the first legislation to address this issue and it served as the steppingstone and model for the 14th Amendment, which conferred citizenship on “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.”
“Something had to be done about Dred Scott,” Rutherglen said. “The need for action led first to the 1866 act and then to the 14th Amendment, which unfortunately eclipsed the inherent significance of the act itself.”
Rutherglen said the 1866 legislation exemplified how both Congress and the courts “can work together to make civil rights a reality.”
Debates on affirmative action, voting rights and same-sex marriage – key issues before the Supreme Court this term – show that civil rights jurisprudence is still a live issue, he said.
“One of the things that really surprised me in working on this book is how central provisions of the act are to continuing controversies,” he said. “Almost anything that’s happened in civil rights touches on the Civil Rights Act of 1866.”
Rutherglen said the act set the stage for Congress to take a more active role in advancing civil rights.
“Whether the 14th Amendment prohibits segregated schools isn’t an easily isolated issue, or a matter of great controversy today,” he said. “Exactly how to implement the prohibition against officially segregated schools, and what was done by way of legislation and implementation after Brown v. Board of Education – that’s a much more difficult and complicated topic.
“The way Congress brings constitutional values down to earth, the way Congress makes them enforceable, really determines their content,” he added.
U.Va. law professor and civil rights expert Risa Goluboff said the book was “incredibly important” in American civil rights history and showcases Rutherglen’s “exhaustive research, careful attention to detail and sophisticated analysis.”
“It tackles all the biggest questions, both historically and for contemporary law: how rights get created; who gets to (or has to) enforce them – and especially how the Supreme Court and Congress struggle over that enforcement, and how that enforcement changes over time,” she said. “Although other scholars have studied little pieces of the history George presents here, no one has followed the course of that momentous legislation from its origins before the Civil War through the 19th and 20th centuries and to its continued life in the 21st century.”
The 1866 act’s most obvious impact in 20th-century civil rights involved its provision for the right to make and enforce contracts, which came up for consideration in Jones v. Alfred H. Mayer Co. in 1968.
“For many years, this provision in the 1866 act was thought to be a very narrow, technical provision about the capacity of different individuals to enter into contracts,” Rutherglen said. “But in one of the last decisions of the Warren Court, it was suddenly reinterpreted as a prohibition against private discrimination in contracting. This dramatically expanded its scope, its significance, the availability of common law remedies for private forms of discrimination.”
That reinterpretation paved the way for numerous claims for damages filed by victims of racial discrimination and national origin discrimination. The ruling also led to the Civil Rights Act of 1991, which expanded damage remedies for victims of sexual harassment.
“And this is, I think, typical of the influence that the act has had,” Rutherglen said.
Though the act has had a lasting impact, the legislation did not fulfill its original goals.
In the 19th century, “its influence waned at exactly the same moment that Congress stopped passing new civil rights legislation,” he said. “As soon as Congress withdrew from the field, the whole force and effectiveness of the civil rights laws fell dramatically.”
Civil rights and racial discrimination remain critical to understanding the current legal landscape “partly because overcoming the legacy of slavery has proved to be such a difficult task,” he said. “Exactly how to overcome that past is an issue that has to be addressed anew in every generation in this country.”
Rutherglen said the scope of civil rights has continued to expand in the past several decades, despite a fairly conservative national political scene.
“Once an argument for equal treatment gets going, it takes on a life of its own,” he said. “If you say blacks and whites have to be treated equally, then that forces the argument that, well, men and women have to be treated equally. And old and young have to be treated equally. So there is a kind of internal logic and momentum to these arguments that, again, in my view has its origins all the way back in 1866.”
Just four years after the act was passed, for example, it was re-enacted to protect the rights of foreign-born Americans. And that trajectory continues today.
“I anticipate that within a few years we’ll have federal legislation against employment discrimination on the basis of sexual orientation, which is another expansion,” he said.