April 9-10, 2016: Remembering Reconstruction: The Civil Rights Act of 1866

[April 9^th marks the 150^th anniversary of the landmark Civil Rights Act of 1866, one of many such Reconstruction sesquicentennials over the next decade. So this week I’ve AmericanStudied five Reconstruction histories, leading up to this special weekend post on the Civil Rights Act itself.]

Why we don’t remember a controversial law, and a couple reasons why we should.

There are many factors that contribute to the thoroughgoing absence of the Civil Rights Act of 1866 from our collective national memories. For one thing, as I hope this week’s series has made plain, there’s a long list of Reconstruction moments and histories that we don’t remember well; indeed, given the mythologized Dunning School narrative of Reconstruction history against which Du Bois was writing and which as I noted Friday has significantly endured into our own moment, it’s fair to ask whether we remember anything about Reconstruction with accuracy or clarity. More specifically, there was a good deal of debate surrounding the 1866 law about whether Congress had the power to grant civil or Constitutional rights at all; not coincidentally, some of the same language from the law had already made its way into the proposed 14^th Amendment, and when that amendment was ratified two years later it was widely seen as incorporating the Civil Rights Act (a link made explicit by the subsequent Enforcement Acts of 1870 and 1871).

So the Civil Rights Act of 1866 didn’t stand alone, and has to be contextualized in relationship to the 14^th Amendment (and the 15^th, for that matter), among other Reconstruction laws and debates. At the same time, I would make precisely the opposite point—that there are provisions and elements of the Civil Rights Act that are not part of or complement the amendments, and without which our understanding of those amendments is likewise incomplete. To name one particularly significant such element, the Civil Rights Act’s protections of all American workers from racial, ethnic, or other discriminatory practices is widely considered the nation’s first anti-discrimination employment statute, and as such represented a vital step not only in Reconstruction and racial histories but in the similarly evolving late 19^th century histories of labor and government regulation. In Thursday’s post, I noted that toward the end of his presidency Andrew Johnson supported (and then early in his own presidency Ulysses S. Grant signed) a proclamation endorsing the 8-hour work day, another reflection of the complex but unmistakable intersections between Reconstruction and labor issues and activism. And those intersections truly began with the Civil Rights Act of 1866, which helps us remember the parallel, longstanding links between race and work in American politics and society.

While Andrew Johnson endorsed the 8-hour proclamation, however, he most definitely did not support the Civil Rights Act; indeed, he vetoed its first iteration in 1865 and then vetoed the 1866 version as well, but the House of Representatives overrode that second veto to pass the bill into law. Given that the House would vote to impeach Johnson a couple years later, this opposition or division between the branches might seem both unsurprising and not worth remarking upon. But I would argue the opposite—that while it might otherwise be possible to see Johnson’s impeachment as a political battle or clash between Washington agendas or the like, the dispute over the Civil Rights Act illustrates instead just how socially and culturally significant were the Radical Republicans’ disagreements with Johnson and his policies. One of the biggest problems with the mythologized narrative of the period is that it generally attributes Reconstruction’s failures to federal overreach and radicalism—whereas, as Du Bois and many other subsequent historians have amply demonstrated (and as I hope this week’s posts have also highlighted), it would be far more accurate to argue that Congressional Reconstruction succeeded on many levels despite the opposition of both Johhnson and Southern white supremacists. The Civil Rights Act of 1866 offers a telling moment and example of such successes.

Next series starts Monday,

Ben

PS. What do you think? Other Reconstruction histories you’d highlight?