Jump to ContentJump to Main Navigation
Civil Rights in the Shadow of SlaveryThe Constitution, Common Law, and the Civil Rights Act of 1866$
Users without a subscription are not able to see the full content.

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

Show Summary Details
Page of

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: 11 April 2021

Discerning the Future from the Past

Discerning the Future from the Past

The Contemporary Significance of the Act

(p.159) 9 Discerning the Future from the Past
Civil Rights in the Shadow of Slavery

George Rutherglen

Oxford University Press

Before 1866, civil rights existed only as an uncertain implication of state citizenship. The 1866 Act transformed civil rights into the foundation of an entirely new field of law, which has proliferated in the nearly century and a half since its enactment. The parallels between the act and current law exhibit the expansive tendency of principles of equality and nondiscrimination, as well as the durable features of common law remedies and means of enforcement. The history of the act also reveals the important role that Congress plays in constitutional interpretation, directly by enforcing constitutional rights by “appropriate legislation” and indirectly by shaping the legal landscape in which constitutional decisions are handed down. The long dialogue between Congress and the Supreme Court over the interpretation and constitutionality of the act provides an instructive example of how politics and law can work together, not separately, to bring constitutional ideals of equality closer to reality. The disagreements and discontinuities in this dialogue also reveal how haphazard progress toward equality has been. For many decades, it was suspended altogether and it might never have been revived. The contingencies that permeate the history of the act demonstrate both how durable—and how fragile—our nation's commitment to civil rights has been.

Keywords:   congress, supreme court, constitutional interpretation, equality, civil rights, common law

Oxford Scholarship Online requires a subscription or purchase to access the full text of books within the service. Public users can however freely search the site and view the abstracts and keywords for each book and chapter.

Please, subscribe or login to access full text content.

If you think you should have access to this title, please contact your librarian.

To troubleshoot, please check our FAQs , and if you can't find the answer there, please contact us .