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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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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 25 October 2021

Reconceiving Civil Rights

Reconceiving Civil Rights

Passage and Structure of the Act

(p.40) 3 Reconceiving Civil Rights
Civil Rights in the Shadow of Slavery

George Rutherglen

Oxford University Press

The central question in the debates over the 1866 Act concerned the scope of the civil rights that it protected. The term itself had no special meaning before the act was passed, and afterward, it quickly changed to its current meaning of rights protected from discrimination on the basis of race. This chapter traces the historical meaning of “civil rights,” first back to the common law and then to Roman law, finding them to be the rights of citizens protected by private law. The particular rights enumerated in the 1866 Act conform to this definition and also to the immediate purpose of the 1866 Act: to overrule the black codes passed in the South to deprive African Americans of the full rights of citizenship. The act also followed the model of common law rights by providing detailed provisions for federal jurisdiction and judicial proceedings, in contrast to the temporary legislation authorizing the Freedmen's Bureau, which adopted an administrative model of enforcement. Opponents of the act nevertheless argued that it exceeded the power of Congress and supporters of the act relied, in addition to the power to enforce the Thirteenth Amendment, upon the implied powers of Congress. These fundamental issues of federalism have persisted to this day.

Keywords:   common law, civil law, citizenship, black codes, federal jurisdiction, freedmen's bureau, Thirteenth Amendment, federalism

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