Echoes of Reconstruction: Veto of Civil Rights Act 1866

Emerging Civil War is pleased to welcome back Patrick Young, author of The Reconstruction Era blog.

On March 13, 1866 the House of Representatives passed the First Civil Rights bill. It had been passed by the Senate in February. Imagine that. The first civil rights legislation passed by Congress dealing with discrimination based on race was passed four score and ten years after the nation’s founding. The bill was opposed by Andrew Johnson and he would veto it.

I remember as a young law student studying Civil Rights laws and seeing the “Civil Rights Act (1866)” in a citation in a modern equal rights case. I assumed it was a misprint. Surely the progressive law being relied on was passed in the 1960s and not the 1860s. I was happily surprised to see that I was wrong. It is good to know that notions of non-discrimination are not modern, they have been a part of how some Americans think for 157 years, at least.

Just as the Freedmen’s Bureau Act was the first instance of a broad Federal program being set up to provide material aid education for a disadvantaged sector of our society, the Civil Rights Act placed Congress and the Federal government on the side of diminishing legal discrimination against African Americans in both the North and the South.

Perhaps the most important part of the Civil Rights Act is up front in Section 1, The Citizenship Clause. Here is the text of that section of the bill as it was enacted:

An Act to protect all Persons in the United States in their Civil Rights, and furnish the Means of their Vindication.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all persons born in the United States…, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other…

This first section might seem like an unnecessary part of the bill, since slavery had already been ended the year before by the 13th Amendment abolishing slavery. While slavery had ended in 1865, the legal status of former slaves was still up in the air. Remember that Chief Justice Taney in the infamous Dred Scott decision had said that a slave had no rights that a white person was bound to respect. Did ending slavery give blacks a bundle of rights? Not in the opinion of the white men who controlled most former Confederate states. State after state in the South passed Black Codes in 1865 and 1866 effectively requiring black people to stay in conditions of servitude and depriving them of the most basic rights. Some former Confederates even suggested that since blacks were not citizens they could simply be deported as a class akin to undesirable aliens. If black people were not citizens, what right did they have to even live in the United States?

So, the first thing the Civil Rights Act did was assert that anyone born in the United States is a citizen. That is still controversial today. Even the Republicans who included it in the Civil Rights Act felt it needed further bolstering by making it the first article of the 14th Amendment introduced the following year.

The remainder of the bill’s first section makes a general assertion of a right to non-discrimination for citizens. This part of Section 1 specifies many of the forms of discrimination freedpeople experienced in 1866 that were now illegal. Its drafters knew, for example, that laws had recently been passed in the South creating different, harsher, penalties for many crimes if the defendant was black. So, for example, the Act says that blacks and whites “shall be subject to like punishment, pains, and penalties.” This was a direct solution to the intentional discrimination in the Black Codes.

In his veto message, President Johnson questioned whether it “is sound policy to make our entire colored population…citizens of the United States.” He asked; “Can it be reasonably supposed that they possess the requisite qualifications to entitle them to all the privileges and immunities of citizens of the United States?”

He described newly freed slaves as akin to immigrants newly arrived in the United States, writing:

“Four millions of them have just emerged from slavery into freedom.…It may also be asked whether it is necessary that they should be declared citizens in order that they may be secured in the enjoyment of the civil rights proposed to be conferred by the bill. 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; and it may safely be assumed that the same enactments are sufficient to give like protection and benefits to those for whom this bill provides special legislation. 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, at the end of which, before attaining the coveted prize, they must give evidence of their fitness to receive and to exercise the rights of citizens as contemplated by the Constitution of the United States.”

In other words, Blacks might be able to earn naturalization in the same way immigrants could, but they should not simply be made citizens en masse by operation of law. In fact, Johnson claimed, that making Blacks citizens immediately was a form of discrimination against immigrants! He wrote; “The bill in effect proposes a discrimination against large numbers of intelligent, worthy, and patriotic foreigners, and in favor of the Negro…” Of course, Native-born white people were not required to go through “probation” before being granted the rights of U.S. citizens.

The African American, according to the president, “must of necessity, from his previous unfortunate condition of servitude, be less informed as to the nature and character of our institutions than he who, coming from abroad, has, to some extent at least, familiarized himself with the principles of a Government to which he voluntarily intrusts ‘life, liberty, and the pursuit of happiness.’ Yet it is now proposed, by a single legislative enactment, to confer the rights of citizens upon all persons of African descent born within the extended limits of the United States, while persons of foreign birth who make our land their home must undergo a probation of five years, and can only then become citizens upon proof that they are ‘of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same.’” Here we find an easy willingness to play immigrants off against African Americans.

In his veto message, Johnson pulled out all of the racial prejudice stops. He understood that some Northerners might be willing to put their own biases aside in the case of making blacks citizens. 170,000 African Americans had, after all, joined the Union Army during the Civil War and helped secure the reunification of the United States. So he reminded Americans that blacks would not be the only beneficiaries of the Citizenship Clause of the Civil Rights Act. At the time, there was a national moral panic over the recent arrival of two small groups of immigrants, the Chinese and “gypsies,” or Roma. Johnson tried to exploit the fear of these groups among white Americans to rally support for his veto. Johnson wrote that the Civil Rights Act would make not only Blacks citizens, but also “the Chinese of the Pacific States, Indians subject to taxation, the people called gypsies, as well as the entire race designated as blacks, people of color. Negroes, mulattoes, and persons of African blood.” He must have felt certain that even the least prejudiced white man could find someone to hate or fear on that list.

Johnson’s objection to the Civil Rights Act extended beyond his objection to conferring immediate citizenship on United States-born non-white people. He was also deeply troubled by the prohibition in Section 1 of the Act prohibiting laws that discriminate based on race. Johnson wrote that in the Civil Rights Act “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. In no one of these can any State ever exercise any power of discrimination between the different races. In the exercise of State policy over matters exclusively affecting the people of each State it has frequently been thought expedient to discriminate between the two races.” He said that he particularly objeted to the elimination of laws banning blacks and whites from marrying. Intermarriage between the races was, he wrote, viewed as “revolting, and regarded as an offense against public decorum,” and was illegal in the former Confederate states as well as in some of the Northern states.

President Johnson was particularly annoyed that white public officials who engaged in unlawful racial discrimination would now face fines or imprisonment for their action. Johnson characterized the protections of the new law as “evil.” In his veto message he argued that if left alone, white and Black Southerners would work things out, ignoring the brutal campaign of terror then being waged in the South against the freed former slaves.

Johnson wrote:

To me the details of the bill seem fraught with evil. The white race and the black race of the South have hitherto lived together under the relation of master and slave capital owning labor. Now, suddenly, that relation is changed, and as to ownership capital and labor are divorced. They stand now each master of itself. In this new relation, one being necessary to the other, there will be a new adjustment, which both are deeply interested in making harmonious. Each has equal power in settling the terms, and if left to the laws that regulate capital and labor it is confidently believed that they will satisfactorily work out the problem. Capital, it is true, has more intelligence, but labor is never so ignorant as not to understand its own interests, not to know its own value, and not to see that capital must pay that value. This bill frustrates this adjustment. It intervenes between capital and labor and attempts to settle questions of political economy through the agency of numerous officials whose interest it will be to foment discord between the two races, for as the breach widens their employment will continue, and when it is closed their occupation will terminate.

This is a claim that would be made for years by white supremacists: The source of racial discord in the South was not slavery or Jim Crow, it was the meddling of Federal officials, outsiders, whose jobs depended on stirring up trouble between the races.

Johnson charged that by protecting the civil rights of blacks, the Act was itself discriminatory against whites. He wrote that the Civil Rights Act would “establish for the security of the colored race safeguards which go infinitely beyond any that the General Government has ever provided for the white race. In fact, the distinction of race and color is by the bill made to operate in favor of the colored and against the white race.”

Johnson was the first American president to claim that equality for African Americans represented discrimination against whites.

With a growing toll of murdered Blacks in the South during the months before the veto, the Senate and House overrode the President’s rejection and passed the bill into law.