The Civil Rights Act of 1866 was the first federal law to define American citizenship and the first to protect individual civil rights through federal enforcement. It declared that everyone born in the United States (with a narrow exception) was a citizen, and it guaranteed those citizens the same rights as white citizens to make contracts, own and transfer property, sue and be sued, and testify in court. Congress passed it over President Andrew Johnson’s veto on April 9, 1866, and its core provisions still live in federal law today as 42 U.S.C. §§ 1981 and 1982.
What the Act Established
The Act did three big things at once.
First, it created birthright citizenship as a matter of federal statute. Section 1 declared all persons born in the United States, and not subject to any foreign power, to be citizens of the United States. The one carve-out was for Indigenous people classified as “Indians not taxed,” reflecting the legal view at the time that tribal nations held a separate sovereign relationship with the federal government.1National Constitution Center. Civil Rights Act of 1866 – An Act to Protect All Persons in the United States in Their Civil Rights and Furnish the Means of Their Vindication
Second, it guaranteed a defined list of civil rights on equal terms. Every citizen had the same right in every state to make and enforce contracts, to sue and be a party to lawsuits, to give evidence in court, and to receive the full and equal benefit of all laws for the security of person and property. A companion provision covered the right to inherit, purchase, lease, sell, hold, and convey real and personal property.2Office of the Law Revision Counsel. 42 USC 1981 – Equal Rights Under the Law3Office of the Law Revision Counsel. 42 USC 1982 – Property Rights of Citizens The benchmark set by the statute was “as is enjoyed by white citizens.” Any state or local rule that fell short of that standard was unenforceable.
Third, it put federal muscle behind those rights. Cases involving civil rights violations could be removed from state courts to federal courts, so local judges sympathetic to the old order could not quietly bury them. Federal marshals, district attorneys, and Freedmen’s Bureau agents could initiate proceedings. The Act imposed criminal penalties—originally a fine of up to $1,000, imprisonment of up to one year, or both—on anyone who, acting under color of any law, regulation, or custom, deprived another person of the rights it protected. That enforcement principle survives today as 18 U.S.C. § 242, with harsher penalties when a violation causes bodily injury or death.4U.S. Department of Justice. Deprivation of Rights Under Color of Law
The Black Codes It Was Meant to Break
The 13th Amendment, ratified in December 1865, abolished slavery but did not settle the legal status of roughly four million formerly enslaved people.5Cornell Law School. 13th Amendment Within months, southern states began passing Black Codes designed to keep Black Americans in a condition as close to slavery as possible. Mississippi and South Carolina enacted the first codes in 1865, and the rest of the former Confederacy quickly followed.
The codes forced Black workers to sign annual labor contracts at the lowest possible wages, punishing refusal with arrest, fines, or unpaid labor. Some states banned Black residents from renting or buying land, restricted their occupations, and used vagrancy laws to push people back onto plantations. The 1866 Act’s list of protected rights maps directly onto these abuses. Guaranteeing the right to enter binding employment agreements dismantled the forced-contract systems. Protecting property ownership struck at codes that barred Black residents from renting or purchasing land. Opening courtrooms and allowing Black witnesses to testify reversed a long tradition of excluding Black Americans from legal proceedings.
President Johnson vetoed the bill, arguing that Black Americans were not qualified for citizenship. Congress overrode the veto, an early exercise of legislative power that set the tone for Reconstruction.6Federal Judicial Center. Civil Rights Act of 1866
How It Overturned Dred Scott
The citizenship clause did more than establish a rule going forward. It explicitly repudiated the Supreme Court’s 1857 decision in Dred Scott v. Sandford, which had held that Black Americans, whether free or enslaved, could never be citizens and had “no rights which the white man was bound to respect.” By defining citizenship at birth as a matter of federal law, Congress created a direct legal relationship between individuals and the national government that no state could override. That status was the gateway to every other protection in the Act; without it, none of the rights attached.
What Was Left Out
Two significant areas of civic life fell outside the Act.
- Voting rights. The Act granted citizenship but said nothing about voting. Federal protection against racial denial of the vote had to wait for the 15th Amendment, ratified in 1870.
- Public accommodations. Hotels, restaurants, theaters, and public transportation were not covered. Congress addressed accommodations in the Civil Rights Act of 1875, but the Supreme Court struck that law down in 1883. Effective federal protection for public accommodations did not arrive until the Civil Rights Act of 1964.
The Act’s protections also originally extended only to citizens. Non-citizens did not gain comparable protections until the 14th Amendment and later legislation broadened the category of protected persons.
How the 14th Amendment Reinforced It
Members of Congress worried almost immediately that the Act might not survive a constitutional challenge, since it was unclear whether Congress had the authority to reach so far into state law. The response was to embed the Act’s core principles directly into the Constitution.
The 14th Amendment, ratified in 1868, constitutionalized birthright citizenship in its opening sentence: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” It then barred states from abridging the privileges or immunities of citizens, depriving any person of life, liberty, or property without due process, or denying any person equal protection of the laws.7Cornell Law School. 14th Amendment
After ratification, Congress re-passed the Civil Rights Act and extended most of its protections to “all persons” rather than only to citizens, tying the statute to the Due Process Clause. That gave the Act a firmer constitutional foundation and broadened its reach.
Why It Still Matters Today
The 1866 Act is not a historical relic. Its two surviving provisions still generate active federal litigation.
Section 1981’s guarantee of the right to make and enforce contracts applies directly to employment. Workers who experience racial discrimination in hiring, firing, promotion, or the terms of their employment can sue under Section 1981 without first filing a charge with the Equal Employment Opportunity Commission, which Title VII of the Civil Rights Act of 1964 requires. Section 1981 also reaches employers of any size, while Title VII applies only to employers with 15 or more workers.2Office of the Law Revision Counsel. 42 USC 1981 – Equal Rights Under the Law
Section 1982’s property protections were expanded in the Supreme Court’s 1968 decision in Jones v. Alfred H. Mayer Co. The Court held that Section 1982 bars all racial discrimination in the sale or rental of property, including discrimination by private individuals, as a valid exercise of Congress’s power to enforce the 13th Amendment.8Library of Congress. Jones v. Alfred H. Mayer Co., 392 US 409 (1968) That reach into private conduct is something the 14th Amendment’s equal protection framework, which applies only to state action, could not accomplish on its own. Section 1982 now works alongside the Fair Housing Act of 1968, but it remains valuable because it has no administrative exhaustion requirement.
The Civil Rights Act of 1991 later added Section 1981(c), which makes explicit that the rights it protects are shielded against both governmental and nongovernmental discrimination. Between that provision and the Jones decision, the 1866 Act today covers both public and private racial discrimination in the two areas it originally addressed: contracts and property.