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Civil Rights in the Shadow of SlaveryThe Constitution, Common Law, and the Civil Rights Act of 1866$
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George A. Rutherglen

Print publication date: 2012

Print ISBN-13: 9780199739707

Published to Oxford Scholarship Online: January 2013

DOI: 10.1093/acprof:oso/9780199739707.001.0001

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Citizenship, Slavery, and the Constitutional Origins of the Act

Citizenship, Slavery, and the Constitutional Origins of the Act

(p.18) 2 Citizenship, Slavery, and the Constitutional Origins of the Act
Civil Rights in the Shadow of Slavery

George Rutherglen

Oxford University Press

The immediate origins of the 1866 Act lie in the Thirteenth Amendment, but its content goes back to the Privileges and Immunities Clause in the original Constitution. The interpretation of that clause in the antebellum decision of Corfield v. Coryell offered a list of rights broadly similar to those protected by the act but was necessarily limited to rights already conferred by state law on state citizens. Under Dred Scott v. Sandford, African Americans were excluded from the coverage of the clause and all other federal protections of citizenship. Although the Thirteenth Amendment negated the practical effect of Dred Scott, it left to Congress the task of officially overruling the decision and bridging the gap between freedom and citizenship. As the 1866 Act bears witness, Congress took an active role from the very beginning in exercising its enforcement powers to determine the meaning and effect of the Thirteenth Amendment.

Keywords:   privileges and immunities, Corfield v. Coryell, Dred Scott v. Sandford, citizenship, Thirteenth Amendment, constitutional interpretation

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