Civil Rights Act of 1866 (Judicial Interpretation)

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CIVIL RIGHTS ACT OF 1866 (Judicial Interpretation)

Judicial interpretation has transformed the Civil Rights Act of 1866 from a simple effort to dismantle the black codes into one of the most important existing civil rights laws. In assessing judicial treatment of the act, it is helpful to consider section one of the act separately from section three. Other sections have not led to noteworthy judicial development. Section one of the act, which granted all persons the same rights as white persons to make and enforce contracts, sue, be parties, give evidence, inherit, purchase, lease, sell, hold, and convey real and personal property, and to the full and equal benefit of all laws and proceedings for the security of person and property, was reenacted in modified form by the Civil Rights Act of 1870, was divided into two sections by the revised statutes of 1874, and survives as sections 1981 and 1982 of Title 42, United States Code. Section three of the act, which set forth the procedures for vindicating rights protected by section one, was scattered throughout the United States Code. Portions of it survive as civil rights removal statutes and as part of section 1988 of Title 42. Judicial interpretation of the 1866 act is not unrelated to these statutory reshufflings. Cut adrift from their moorings in the entire 1866 act, the act's remnants are amenable to many more interpretations than the original provision.

Cases decided in the years immediately following the 1866 act's passage are particularly important in ascertaining its original meaning. The revised statutes of 1874 would strip the act's descendants of any close resemblance to the original measure. And once the courts became accustomed to applying the fourteenth amendment, much of the 1866 act would become superfluous. In addition, ratification of the Fourteenth Amendment eliminated most doubts about the act's constitutionality.

Prior to ratification of the Fourteenth Amendment, most courts were willing to sustain the act under Congress's thirteenth amendment power to proscribe slavery. But at least Kentucky's highest court in Bowlin v. Commonwealth (1867) declared the act unconstitutional. Other courts avoided such a declaration only by interpreting the act not to prohibit some forms of racial discrimination that the act's words arguably covered.

In the reported interpretations of the act, for example, courts divided over whether states could continue to outlaw marriages between whites and blacks. State courts in Tennessee (1871), Indiana (1871), and Alabama (1878) found marriage not to be a contract within the meaning of section 1, and therefore rejected attacks on antimiscegenation laws that relied on the 1866 act. State courts in Louisiana (1874) and Alabama (1872) relied at least in part on the 1866 act to find intermarriage legal, but the Alabama case was soon overruled. Not until loving v. virginia (1967) did the Supreme Court hold the Fourteenth Amendment to ban antimiscegenation laws.

State courts also divided over whether the 1866 act abrogated state laws prohibiting blacks from testifying against whites. The Kentucky court found Congress's effort to do so unconstitutional, but an 1869 Arkansas decision found the act to authorize such testimony. In 1869, the California Supreme Court relied on the 1866 act's evidentiary provision to dismiss an indictment against a mulatto, because Chinese witnesses had testified at his trial and state law prohibited them from testifying against white men. But a year later, despite the 1866 act, the California court sustained the state's evidentiary ban on testimony by Chinese against whites.

After the 1870s, section 1 diminished in importance. The state laws against which it most successfully operated, laws mandating racial discrimination in areas covered by section 1, could also be attacked directly under the Fourteenth Amendment. And with section 1 and the Fourteenth Amendment undermining the most egregious provisions of the Black Codes, there remained only one important area to which section 1 might be applied—private discrimination. When the civil rights cases (1883), united states v. harris (1883), and united states v. cruik-shank (1876) limited Congress's Thirteenth and Fourteenth Amendment power to legislate against private racial discrimination, there was doubt about whether section 1 constitutionally could be applied to private discrimination. One early lower federal court opinion, United States v. Morris (1903), suggested the 1866 act's applicability to private discrimination, but Supreme Court statements in Virginia v. Rives (1880) and corrigan v. buckley (1926) suggested that the act did not apply to private conduct. (See strauder v. west virginia, 1880.),

Hurd v. Hodge (1948), a companion case to shelley v. kraemer (1948), gave section 1 some new life. The court applied section 1 to prohibit courts in the district of columbia from enforcing a racially restrictive covenant. The breakthrough came in jones v. alfred h. mayer co. (1968), where the Court held both that Congress meant the 1866 act to proscribe private discrimination and that Congress constitutionally could outlaw private discrimination under the Thirteenth Amendment. As the result of Jones, Johnson v. Railway Express Co. (1974), and runyon v. mccrary (1976), the remnants of the 1866 act were transformed from historical relics into federal laws broadly prohibiting private racial discrimination in the sale or lease of all housing, in schools, in employment and in virtually all other contracts. In many respects the 1866 act's newly discovered coverage exceeds that of comprehensive modern civil rights laws. General Building Constructors Association, Inc. v. Pennsylvania (1982) limited the 1866 act's reach by holding that liability may not be imposed under the act without proof of intentional discrimination.

Section 3 of the 1866 act traveled a less visible path through the courts. Its primary significance has been to determine when a violation of former section 1 authorizes an original or removal action in federal court. (See removalofcases.) In blyew v. united states (1872), over the dissents of Justices joseph p. bradley and noah swayne, the Court held that Kentucky's testimonial disqualification of black witnesses did not confer original jurisdiction on a lower federal court to hear a state murder case at which the black witnesses were to testify. In a series of civil rights removal cases, the Court held that what had been section 3 authorized removal to federal court where state laws expressly mandated a racial distinction that prevented blacks from receiving equal justice, as when blacks were excluded from juries. But the Court found removal not to be authorized where the same result was achieved through other than formal state statutory command.

Under section 3's remnants, actions that arise under state law but are removed to federal court are tried in federal court by applying state law. In Robertson v. Wegmann (1978), however, the Court misconstrued the shred of the 1866 act commanding this result to require application of state law to cases arising under federal law. The same remnant, section 1988, also has been relied on in Sullivan v. Little Hunting Park, Inc. (1969) to authorize damages for violations of section 1 rights and in Tomanio v. Board of Regents (1980) to require the use of state statutes of limitations in federal civil rights cases.

Theodore Eisenberg
(1986)