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I came across this one in the line of duty rather than on one of my after-hours photo safaris. This was before I was entirely comfortable (socially and ethically) taking as many pictures as I desired, so I apologize for not giving you more.

Here’s the reverse side of the draft legislation we know as the Civil Rights Act of 1866, with fancy notes about its procedural history:
Most Southern politicians considered newly freed slaves to be in some intermediate condition between servitude and full citizenship. Southern legislatures at the state and local level enacted so-called Black Codes, which tightly regulated emancipated African-Americans’ economic and civil rights. The Codes often prohibited blacks from traveling without their masters’ consent, residing in certain towns unless employed there, pursuing all but a few vocations, owning property, testify against whites in court, etc. Blacks in some areas couldn’t own firearms without a license or assemble in public. The Black Codes enraged Congressional Republicans, who thought it evident that because blacks were no longer enslaved, they were entitled to all of the rights and privileges of U.S. citizenship and those accorded under state law.

The Civil Rights Act of 1866 is commonly understood as a response to the grievance posed by the Black Codes. It guaranteed all U.S. citizens the rights “to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and [to] be subject to like punishment, pains, and penalties, and to none other.” Lest there be any doubt about who possessed U.S. citizenship, Senator Lyman Trumbull introduced the following (successful) amendment:
The original Constitution was entirely silent on the definition of state vs. national citizenship (as well as those of citizenship vs. alienage and natural- and non-natural-born citizenship). The Civil Rights Act of 1866 codified a proposition that Republicans thought too plain for controversy: “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are . . . citizens of the United States.” America’s commitment to jus soli (territorial birthright citizenship) was enshrined beyond the reach of hostile Congressional majorities in Section 1 of the 14th Amendment.

Whence the constitutional power to pass the Act of 1866? Not from any uncontroversial reading of Congress’s enumerated powers, virtually everyone acknowledged. That it became law is a testament to the Republicans’ very unorthodox constitutional views. Proponents of the measure had to convince a majority of the House and Senate of its merits, of course, but passage also required majority adherence to the idea that Congress could exercise powers not clearly delineated in Article I, Section 8. John Bingham, the principal draftsman of Section 1 of the 14th Amendment, insisted that an amendment was necessary to legislate on such matters.

Plenty of the bill’s supporters argued that Congress possessed an inherent power to enforce Bill of Rights guarantees. The 5th Amendment had declared that no person shall be “deprived of life, liberty, or property, without due process of law”; blacks had been forbidden to sue, be parties, and give evidence. True, those Republicans who conceded the authority of Barron v. Baltimore noted, the Supreme Court had held that Bill of Rights liberties did not of themselves place judicially enforceable limits on the power of state and local governments; but in Prigg v. Pennsylvania, the Court ruled that the existence of a constitutionally guaranteed right (the right to have an escaped slave “delivered up”) implied Congressional power to enforce that right. If the Fugitive Slave Act of 1793 was Constitutional, some Republicans snarled, so was the Civil Rights Bill.

Others believed that Section 2 of the 13th Amendment (empowering Congress to enforce the Amendment’s flat prohibition of slavery in the United States) gave Congress the authority it needed to pass the legislation. To them, the Black Codes’ racially discriminatory regulations were relics of a forbidden institution, and Section 2 in fact authorized Congress to invalidate Southern defiance.

Still others identified Article IV, Section 2 as the relevant source of power. Its first sentence reads: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” Congressmen in this camp identified the ambiguity in the second usage of the word “Citizens”—citizens of what? Their respective states, or the United States? The United States, these Republicans felt certain. Whether the Black Codes infringed any privileges or immunities of citizens of the United States is debatable, but these folks believed that any right mentioned in the Constitution (regardless of the Barron limitation) was one of citizens of the United States, and blacks had not been free to assemble and bear arms in the South. Adopters of this rationale also believed in an implicit power to remedy violations of rights.

(Edit: I recently learned that yet another supposed source of Congressional power to pass the 1866 Act was a government’s obligation under the law of nations to protect its citizens. Representative Wilson, Chair of the House Judiciary Committee, argued during the debates that “the right to exercise this power depends upon no express delegation, but runs with the rights it is designed to protect.”)

One more thing: the Civil Rights Act of 1866 was passed over President Andrew Johnson’s veto; it’s often cited as the first “major” piece of legislation enacted over a presidential veto. This wasn’t the first Congressional override, however. Congress enacted a bill “relating to revenue cutters and steamers” over President John Tyler’s veto on March 3, 1845, Tyler’s last full day in office. Tyler and Johnson both assumed the presidency upon the death of their predecessors. Neither vice president was ideologically akin to his boss—both were chosen to balance the ticket regionally. And both were stuck with a Congress composed primarily of political foes, hence their frequent use of the veto as a legitimate means of attempting to thwart legislative majorities.

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