Civil Rights Act of 1866: Citizenship, Section 1981, and 1982

The Civil Rights Act of 1866 was the first federal law to define American citizenship and to guarantee that all citizens, regardless of race, held the same basic legal rights as white citizens. Congress passed it on April 9, 1866, over President Andrew Johnson’s veto, and it has never been repealed. Its core provisions live on today as 42 U.S.C. § 1981 and 42 U.S.C. § 1982, and plaintiffs still use them to bring racial discrimination cases in federal court.

Why Congress Passed It

The Thirteenth Amendment, ratified in December 1865, ended slavery but said nothing about citizenship or civil rights. Southern legislatures moved quickly to fill that silence with “Black Codes” that restricted freed people’s ability to own land, move freely, and negotiate wages. Congress answered by using its Thirteenth Amendment enforcement power to write a floor of legal equality into federal law.

President Johnson vetoed the bill, calling it an overreach of federal authority. Congress overrode him on April 9, 1866, the first time Congress had legislated directly on civil rights.¹ The override made clear that Reconstruction policy would be set by Congress, not the White House.

Who Became a Citizen

Section 1 of the Act, at 14 Stat. 27, declared that all persons born in the United States were citizens of the United States, regardless of race, color, or previous condition of slavery.² This was the first statutory definition of American citizenship, and it was aimed squarely at the 1857 Dred Scott decision, which had held that Black people could not be citizens.

The Act carved out two groups. Persons “subject to any foreign power” were excluded, meaning foreign nationals without allegiance to the United States. “Indians not taxed” were also excluded, a phrase referring to Indigenous people living under tribal sovereignty outside the federal tax system.² Everyone else born on U.S. soil became a citizen automatically.

The Rights the Act Guaranteed

The standard the Act used was simple: whatever legal rights white citizens enjoyed, all citizens enjoyed. Those rights fell into three groups.

Contracts

Section 1 gave all citizens the right to make and enforce contracts on the same terms as white citizens.² Before the law, freed people in much of the South could not sign enforceable employment agreements or negotiate wages. Making contract rights a matter of federal law took the question away from local governments that had every reason to keep the old system going.

Property

The Act protected the right to buy, sell, lease, inherit, and hold real property such as land and buildings, as well as personal property such as tools, livestock, and household goods.² Freedom from slavery would have meant little in daily life without the ability to own things and keep them.

Access to the Courts

Section 1 also guaranteed every citizen the right to sue, to be a party in legal proceedings, and to give testimony as a witness. The testimony provision mattered because many states had barred Black witnesses from testifying against white people, which made it nearly impossible to hold white defendants accountable. The Act added that all citizens had to receive the “full and equal benefit” of laws protecting person and property, and that criminal punishments had to be applied uniformly across races.²

How the Original Act Was Enforced

Sections 2 through 6 built the enforcement side. Anyone who deprived a citizen of the guaranteed rights “under color of any law” committed a federal misdemeanor, punishable by a fine of up to $1,000, up to one year in prison, or both.² “Under color of law” reached state and local officials who used their positions to strip people of rights. It was among the earliest federal criminal provisions aimed at government actors themselves.

Federal district courts received exclusive jurisdiction, keeping the cases out of state courts.² Federal marshals served warrants, commissioners issued them, and these officers could call on bystanders or the military if local authorities refused to cooperate. Without that independent federal machinery, Southern state governments would simply have ignored the law.

The Fourteenth Amendment and the 1870 Re-enactment

Supporters worried almost immediately that the Act’s constitutional footing was too narrow. It rested on the Thirteenth Amendment’s enforcement clause, and critics argued that abolishing slavery did not give Congress the power to regulate state-level civil rights. To settle the question, Congress drafted the Fourteenth Amendment, ratified on July 9, 1868.³ Its citizenship clause wrote Section 1 of the 1866 Act into the Constitution, and its equal protection and due process clauses gave Congress broader enforcement power.

Violent resistance continued anyway. The Ku Klux Klan and similar groups used terror to keep Black citizens from voting, serving on juries, or holding office. Congress passed the Enforcement Acts of 1870 and 1871 in response.⁴ The 1870 Act re-enacted the key provisions of the 1866 law and anchored them to the Fourteenth and Fifteenth Amendments as well as the Thirteenth. That belt-and-suspenders foundation is what made it possible for courts to revive these provisions a century later.

Section 1981 in Federal Court Today

Section 1 of the 1866 Act now lives at 42 U.S.C. § 1981. It provides that all persons within U.S. jurisdiction have the same right as white citizens to make and enforce contracts, sue, be parties to lawsuits, give evidence, and enjoy the full and equal benefit of all laws for the security of persons and property.⁵

It is one of the most frequently used civil rights statutes in employment discrimination cases. Plaintiffs often file Section 1981 claims alongside Title VII claims, but the two do different work. Section 1981 covers only intentional racial discrimination. Title VII reaches a wider set of protected characteristics and also covers policies with a discriminatory impact even without discriminatory intent. In the other direction, Section 1981 has no requirement to file a charge with the Equal Employment Opportunity Commission before suing, and it has no cap on compensatory or punitive damages. Title VII imposes both.

The Civil Rights Act of 1991 added subsection (b) to Section 1981, defining “make and enforce contracts” to include the entire contractual relationship: formation, performance, modification, termination, and the enjoyment of all benefits and conditions. Before that amendment, the Supreme Court had narrowed the statute to contract formation only, leaving hostile work environments, discriminatory promotions, and retaliatory firings outside its reach. Subsection (c) added that the rights apply against both private parties and state actors.⁵

Two Supreme Court decisions frame modern Section 1981 practice. In Runyon v. McCrary (1976), the Court held that Section 1981 prohibits racial discrimination in private contracts, not just discrimination by government actors.⁶ In Comcast Corp. v. National Association of African American-Owned Media (2020), the Court held that a Section 1981 plaintiff must prove that race was a “but-for” cause of the injury: the discrimination would not have happened without racial bias.⁷ That is a demanding standard, and it governs the case from the complaint through trial.

Section 1982 and Property Discrimination

The property half of the 1866 Act now sits at 42 U.S.C. § 1982. It gives all U.S. citizens the same right as white citizens to buy, sell, lease, inherit, hold, and transfer real and personal property.⁸

The provision was largely dormant until Jones v. Alfred H. Mayer Co. (1968). A Black couple alleged that a developer had refused to sell them a home because of their race. The Court held that Section 1982 “bars all racial discrimination, private as well as public, in the sale or rental of property,” and that Congress had the power to reach private conduct under the Thirteenth Amendment.⁹

Jones was decided just weeks after the Fair Housing Act of 1968 became law, and the two statutes now operate together. Section 1982 is narrower because it covers only racial discrimination in property transactions, while the Fair Housing Act reaches discrimination based on race, color, religion, sex, national origin, familial status, and disability. Section 1982 has no administrative exhaustion requirement, though, so a plaintiff can go straight to federal court without first filing a complaint with the Department of Housing and Urban Development. For a straightforward case of racial discrimination in a sale or lease, a law Congress passed more than 160 years ago is still one of the most direct routes to relief.

1
U.S. House of Representatives. The Civil Rights Bill of 1866
2
GovInfo. 14 Stat. 27 – Civil Rights Act of 1866
3
National Archives. 14th Amendment to the U.S. Constitution – Civil Rights (1868)
4
U.S. Senate. The Enforcement Acts of 1870 and 1871
5
Office of the Law Revision Counsel. 42 USC 1981 – Equal Rights Under the Law
6
Library of Congress. Runyon v. McCrary, 427 U.S. 160 (1976)
7
Supreme Court of the United States. Comcast Corp. v. National Association of African American-Owned Media, No. 18-1171
8
Office of the Law Revision Counsel. 42 USC 1982 – Property Rights of Citizens
9
Library of Congress. Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968)