Civil Rights in the Shadow of Slavery: The Constitution, Common Law, and the Civil Rights Act of 1866
The Civil Rights Act of 1866 created civil rights as we know them today: as rights to participate in public life free of discrimination. It was the first civil rights act in our nation's history and it laid the foundation for all subsequent civil rights legislation. While numerous scholars have focused on the origins of the Act in Reconstruction and its role as a precursor to the Fourteenth Amendment, this book is the first to examine its place in the long history of civil rights, from antebellum disputes over slavery and citizenship to the meaning and enforcement of civil rights today. As George Rutherglen demonstrates, the Act has structured debates and controversies about civil rights from Reconstruction to the present. The history of the Act speaks to the fundamental issues that continue to surround civil rights law: the contested meaning of racial equality; the distinction between public and private action; the division of power between the states and the federal government; and the role of Congress as well as the Supreme Court in protecting constitutional rights. In 1866 Congress faced the first of many pressing questions of Reconstruction--the status of the newly freed slaves--and gave it an answer whose significance endures to this day: they were citizens with full civil rights. That answer looks back to the origins of civil rights in the common law and forward to modern developments in constitutional law. The Act served as the model for the Fourteenth Amendment and it immediately became a source for constitutional interpretation of that amendment. But the Act accomplished far more. It gave Congress a central role in the process of defining and enforcing constitutional rights, a process continued by every subsequent piece of federal civil rights legislation. This book recounts this story and the influence that the Act has exercised ever since, as the first of many efforts to build civil rights out of the abolition of slavery.