Civil Rights in the Shadow of Slavery: The Constitution, Common Law, and the Civil Rights Act of 1866

By George Rutherglen | Go to book overview

4
The High Tide of Reconstruction
THE FOURTEENTH AMENDMENT AND LATER
LEGISLATION

Are we now legislating for a day, or a year, or for all time?
Are we legislating for our own generation alone, or
legislating here today for the teeming millions of all races,
classes, and conditions of men who are to people this
great Republic?

REP. CHARLES G. WILLIAMS in support of the Civil Rights Act of 1875

THE PASSAGE OF the Civil Rights Act of 1866 hardly settled disputes over its constitutionality. Having occupied center stage as the act was framed, passed, vetoed, and then passed again, these disputes merged seamlessly into the debates over the Fourteenth Amendment and subsequent civil rights legislation. All the issues that animated the debate over the act reappeared as these further measures were drafted, debated, and interpreted: the grant of citizenship to persons within the United States, the content of the privileges and immunities of citizenship, the rights of aliens, the meaning of equal protection and due process, and the power of Congress to give effect to all these rights. The doctrinal sources of these disputes follow the clauses in Section 1 of the Fourteenth Amendment—citizenship, privileges or immunities, equal protection, and due process—and these can be traced back, with important variations, to section 1 of the 1866 Act. This chapter will not add to the already voluminous literature on the origins of the Fourteenth Amendment, which itself remains just as contentious as the debates that took place during Reconstruction. Nor will this chapter rehearse the role of the 1866 Act as the predecessor and model for the amendment, except as background. This chapter does not focus on the light that the act sheds on the amendment, but the opposite: the reflected light that the amendment sheds on the act.

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