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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: 26 October 2021

Resurrecting Civil Rights

Resurrecting Civil Rights

Reading an Old Act for a New Era

(p.126) 7 Resurrecting Civil Rights
Civil Rights in the Shadow of Slavery

George Rutherglen

Oxford University Press

Civil rights returned to dominate the nation's domestic agenda with Brown v. Board of Education. Although not directly involved in that case, the 1866 Act furnished part of the background for this dramatic expansion of constitutional prohibitions against racial discrimination. In particular, the act offers an alternative basis for the decision in the companion case to Brown, Bolling v. Sharpe. That opinion applied to the federal government under the Fifth Amendment the same principles against racial discrimination applicable to the states under the Fourteenth Amendment. This result, although politically compelled, involved awkward reasoning that read the later amendment back into the earlier one, a step that can more easily be accommodated by the broad coverage of the 1866 Act. The scope of that coverage figured in another decision at the end of the Civil Rights Era, Jones v. Alfred H. Mayer Co., which interpreted the act to prohibit private discrimination. This result also had political support, in the form of modern civil rights legislation enacted under the Commerce Clause, but it served to solidify prohibitions against racial discrimination without regard to the intricacies of the state action doctrine. In doing so, it also revived the 1866 Act as a source of modern civil rights claims, chiefly in the field of employment discrimination law.

Keywords:   Brown v Board of Education, Bolling v Sharpe, Jones v Alfred H Mayer Co, Fourteenth Amendment, Fifth Amendment, civil rights era, private discrimination, state action, employment discrimination

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