This post is part of an ACSblog Constitution Week Symposium. The author, Aderson Bellegarde François, is a law professor at Howard University and Supervising Attorney for the law school’s civil rights clinic.
Between 1866 and 1875, in the wake of the ratification of the 13th, 14th, and 15th Amendments to the United States Constitution, the Reconstruction Congress enacted five civil rights statutes that were not only extraordinarily forward-thinking for their time but, in many ways, were far more advanced than much of what now passes for modern civil rights law: the Freedmen’s Bureau Act of 1866, the Civil Rights Act of 1866, the Civil Rights Act of 1870, the Civil Rights Act of 1871, and the Civil Rights Act of 1875.
The Freedmen’s Act, among other things, established a social welfare agency for newly freed slaves. The 1866 Act stated, among other things, that all persons born within the United States were citizens of the United States and that, without regard to color, all such persons were entitled to the right to enter into contracts, sue, present evidence in court, buy, hold and sell property, and entitled to all the benefits of the laws enjoyed by white persons; it also provided that any person who under color of state law caused such civil right to be violated would be guilty of a federal offense. The 1870 Act added criminal penalties for deprivation of the rights enumerated under the 1866 Act; it affirmed the right to vote without regard to color, criminalized any interference with that right, and authorized use of federal troops to police polls in the South; and it made it a felony for any person to conspire to intimidate any citizen with the intent to prevent the free exercise or enjoyment of any federal right. The 1871 Act, passed after President Grant reported to Congress that widespread vigilante violence against blacks had led to virtual anarchy in many Southern states, provided for civil and criminal penalties for the deprivation of rights by persons acting under color of state law. Lastly, the 1875 Act required equal access in all places of public accommodation to all persons without regard to race, color or other previous condition of servitude and, with the recent passage of the Judiciary Act of 1875, which for the first time created “arising under” jurisdiction in the lower federal courts, the Act also granted federal courts exclusive jurisdiction of cases arising under the statute.
In the years following their passage, the Supreme Court, in decisions such as Blyew v. United States, United States v. Cruishank, The Civil Rights Cases, United States v. Harris, Hodges v. United States, and United States v. Reese, eviscerated virtually every single one of these statutes by finding significant portions of them unconstitutional.