Civil Rights Act of 1866: Definition, Passage, and Legacy

The Civil Rights Act of 1866 was the first federal statute to define who counted as an American citizen and to guarantee that citizens of every race held the same basic legal rights as white citizens. Congress passed it on April 9, 1866, over President Andrew Johnson’s veto, to shut down the Black Codes that former Confederate states were using to re-subjugate freed people. Its core provisions survive today as 42 U.S.C. §§ 1981 and 1982 and are still litigated in federal court every week.

Why Congress Passed It

Within months of Appomattox, southern legislatures began enacting statutes known collectively as the Black Codes. Mississippi’s 1865 code let any civil officer arrest a Black worker who left an employer before a labor contract expired and return him by force. It treated any freed person without work as a “vagrant” subject to fines and forced labor. South Carolina barred Black residents from any trade or business beyond farm work without special permission and required newcomers of color to post a bond backed by two property-owning white sureties within twenty days. Both states also forbade Black residents from owning firearms without written permission from local white officials.¹

Republican leaders in Congress saw freedom being erased by statute. Senator Lyman Trumbull of Illinois, the bill’s chief sponsor, argued that the “abstract truths and principles” of the Thirteenth Amendment meant nothing “unless the persons who are to be affected . . . have some means of availing themselves of their benefits.”² The Act was Congress’s mechanism for overriding every Black Code on the books.

What the Act Declared About Citizenship

The opening line was the most revolutionary sentence in the statute: all persons born in the United States and not subject to any foreign power were citizens of the United States.³ Until 1866, no federal law defined citizenship at all. That silence had let the Supreme Court hold in Dred Scott v. Sandford (1857) that people of African descent, free or enslaved, could never be citizens and had “no rights which the white man was bound to respect.”⁴ The Act made birthright citizenship a matter of federal statute and cancelled Dred Scott as a legal rule.

The citizenship clause carried one exclusion: it did not apply to “Indians not taxed,” a category referring to members of tribal nations who kept a separate political relationship with the federal government.³ Blanket U.S. citizenship for Native Americans living within tribal jurisdictions did not arrive until the Indian Citizenship Act of 1924.

The Rights the Act Actually Guaranteed

The statute did not stop at defining citizens. It spelled out what citizenship meant in daily life. Every citizen “of every race and color, without regard to any previous condition of slavery or involuntary servitude” was entitled to the same protections enjoyed by white citizens, and criminal punishments had to apply equally across the population.³ That single standard invalidated Black Code provisions that imposed different rules or harsher penalties based on race.

The Act then named three specific rights, each aimed at a way the Black Codes had cut off economic independence:

The right to make and enforce contracts, so a freed person could negotiate wages, choose an employer, and enter business agreements without state or racial interference.
The right to buy, sell, lease, inherit, and hold real estate and personal property on the same terms as white citizens.
The right to sue, be sued, testify, and take part fully in legal proceedings, ending the rule in many jurisdictions that Black witnesses could not testify against white parties.³

Contracts, property, and access to courts were the minimum tools for building a livelihood. Deny any one, and a person is trapped in dependence.

What the Act Left Out

The 1866 Act was deliberately narrow in one respect: it said nothing about voting, jury service, or holding public office. Those were treated as political rights rather than civil rights, and including them would have destroyed the bill’s chances in a Congress where several northern states also restricted Black suffrage. The gap mattered. A freed man in Mississippi could in theory sign a labor contract and buy land, but he could not vote for the officials governing him or sit on the jury that might decide his case. Voting rights for Black men waited on the Fifteenth Amendment in 1870, and even then enforcement collapsed for most of a century.

Johnson’s Veto and the Override

President Andrew Johnson vetoed the bill on March 27, 1866. He argued that defining citizenship belonged to the states, not Congress; that federal control over testimony, property, and contracts had no logical stopping point; and that the enforcement sections would expose state judges to federal prosecution for applying their own state laws. In substance, he was defending the planter class that wanted to keep control of Black labor through the codes the Act was designed to destroy.

Congress overrode him. On April 9, 1866, the Senate followed the House in reaching the two-thirds majority the Constitution requires, and the bill became law.⁵ It was the first time Congress had forced landmark civil rights legislation through over presidential opposition, and it made clear that Congress, not the President, would set Reconstruction policy.

How the Act Was Enforced

Congress knew local courts in the South would not enforce this law willingly, so it routed enforcement through federal courts. Federal district courts received exclusive jurisdiction over criminal prosecutions under the Act and shared jurisdiction with circuit courts over civil cases involving denial of protected rights.³ If a local judge refused to recognize a Black citizen’s property claim, the case could be removed to federal court, bypassing the officials most likely to be complicit.

Federal marshals, deputy marshals, and court-appointed commissioners could arrest violators and bring them before a federal court. Section 5 authorized these officers to call on military forces or local militia when needed to execute warrants. That was not theoretical. Federal troops were stationed across the South throughout Reconstruction, and the Act gave enforcement officers explicit legal authority to use them.³

Anyone who, acting under state law or local custom, deprived a person of a protected right faced a fine of up to $1,000, imprisonment of up to one year, or both. The provision was aimed at state officials — sheriffs, judges, registrars — who used their offices to enforce discriminatory laws. The Act’s “under color of law” language would become one of the most consequential phrases in later civil rights jurisprudence.³

Constitutional Basis and the Fourteenth Amendment

Congress grounded its authority in Section 2 of the Thirteenth Amendment, which gives Congress power “to enforce this article by appropriate legislation.”⁶ The reasoning ran: the Thirteenth Amendment abolished slavery, the Black Codes were re-imposing it in substance, and legislation to dismantle them was appropriate enforcement.

Doubt about whether that authority stretched to contracts, property, and courtroom access pushed Congress to write its principles into the Constitution itself. The Senate passed the Fourteenth Amendment on June 8, 1866, two months after the Civil Rights Act, and the states ratified it on July 9, 1868.⁷ Its Citizenship Clause tracked the Act’s birthright rule. Its Equal Protection Clause barred any state from denying “the equal protection of the laws.” Former Confederate states were required to ratify the amendment as a condition of regaining their congressional seats, locking the 1866 Act’s principles into a foundation no future legislature could repeal by simple majority.

A Long Dormancy, Then a Revival

The Act was recodified as 42 U.S.C. § 1981 (contracts, legal proceedings, equal protection) and 42 U.S.C. § 1982 (property). For nearly a century afterward, courts read these sections narrowly, treating them as bans on state-sponsored discrimination only. Private individuals and businesses that discriminated faced no liability under them. Through the Jim Crow decades, the statutes were largely inert.

That changed in 1968. In Jones v. Alfred H. Mayer Co., a Black couple sued a private housing developer in St. Louis County that refused to sell them a home because of their race. The Supreme Court held that § 1982 “bars all racial discrimination, private as well as public, in the sale or rental of property,” and that Congress had power under the Thirteenth Amendment to reach private conduct. The Court read the amendment as authorizing Congress to eliminate not only the legal institution of slavery but also its “badges and incidents,” including racial barriers to property ownership. The statute’s long dormancy, the Court wrote, did “not diminish its force today.”⁸

How Sections 1981 and 1982 Work Today

Section 1981 is now one of the most heavily used federal civil rights statutes in employment law. It protects the equal right of all persons to make and enforce contracts without regard to race, covering the full life of a contractual relationship: formation, performance, modification, termination, and enjoyment of all benefits and conditions.⁹ It reaches all private employers and labor organizations.¹⁰

Compared with Title VII of the Civil Rights Act of 1964, § 1981 has some real procedural advantages for plaintiffs. It lets a person sue in federal court directly, without first filing a charge with the EEOC, and it has no cap on compensatory or punitive damages. It does not apply to federal, state, or local government employers, but it reaches private conduct that Title VII sometimes cannot.

Section 1982 continues to guarantee equal rights to buy, sell, lease, and hold property in every state and territory.¹¹ Because it draws its constitutional authority from the Thirteenth Amendment rather than the Fourteenth, it reaches purely private discrimination without needing any link to state action. A homeowner who refuses to sell because of race, a landlord who rejects a tenant on the same grounds, or a bank that imposes different lending terms based on a borrower’s race can all face liability under a statute passed in the spring of 1866. It operates alongside the Fair Housing Act of 1968 rather than in place of it.

The Act had real limits. It excluded Native Americans under tribal jurisdiction, ignored voting rights, and relied on a federal enforcement apparatus that would fall apart when Reconstruction ended. What survived was the core idea: citizenship has to carry concrete, enforceable rights that no state can strip away. The words Trumbull steered through the 39th Congress are still in the United States Code, and plaintiffs still invoke them in federal court.

1
Constitution Center. Black Codes (1865)
2
Constitution Center. Civil Rights Act of 1866
3
GovInfo. 14 Stat. 27 – Civil Rights Act of 1866
4
Justia Law. Dred Scott v. Sandford, 60 U.S. 393 (1856)
5
United States House of Representatives: History, Art, & Archives. The Civil Rights Bill of 1866
6
Congress.gov. Overview of Enforcement Clause of Thirteenth Amendment
7
U.S. Senate. Landmark Legislation: The Fourteenth Amendment
8
Library of Congress. Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968)
9
Office of the Law Revision Counsel. 42 U.S. Code 1981 – Equal Rights Under the Law
10
U.S. Equal Employment Opportunity Commission. Other Employment and Civil Rights Laws Not Enforced by the EEOC
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Office of the Law Revision Counsel. 42 U.S. Code 1982 – Property Rights of Citizens