The Promise and Peril of the Civil Rights Act of 1866

By Ibram X. Kendi

This year marks the 150th anniversary of the Civil Rights Act of 1866. I must ask: should we be celebrating or lamenting the sesquicentennial of this inaugural civil rights act?

I have found myself doing both over the years—celebrating the racial progress the act brought into being as well as lamenting the resulting progression of racism. As much as this act granted Black people citizenship, it also stripped generations of incarcerated, often times nonwhite peoples, of their civil rights. The act voided discriminatory “Black codes” throughout the country, but also helped hack voting off the body of civil rights. Ever since, the American democracy has been bleeding out disenfranchised citizens. As recently as in 2000, we witnessed the political bloodbath of disenfranchised voters deciding elections as much as enfranchised voters. (I was a first time voter in Florida when Black votes were suppressed and George W. Bush won the state and the presidential election.)

Demonstrators outside the White House hold signs demanding the right to vote and protesting police brutality against civil rights demonstrators in Alabama in March 1965. Credit: Library of Congress

Demonstrators outside the White House hold signs demanding the right to vote and protesting police brutality against civil rights demonstrators in Alabama in March 1965.
Credit: Library of Congress

I, like many historians, have used the term “voting rights” while chronicling this political bloodbath. But voting has been a contested privilege, not a right. This is due in part to the Civil Rights Act of 1866, in which Congress explicitly defined the rights of US citizens, but left voting out. The act, while pioneering civil rights legislation, continued the congressional refusal of making voting an inalienable civil right of US citizens, whether free or incarcerated. Indeed, for much of this country’s history, the privilege of voting has reflected white privilege, male privilege, and elite privilege.

Congress could have inserted “to vote” somewhere in this passage of the Civil Rights Act of 1866: “citizens, of every race and color . . . shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property . . . .” The act could also have added “and gender” at the beginning, making voting a right for all citizens who were women. Those additions, 150 years ago, would have paired the American idea of its exceptional democracy with its political reality.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, 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 shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.Opening Section, the Civil Rights Act of 1866

Racist ideas, however, were one of the factors that prevented “to vote” from being inserted in the 1866 Act. Throughout the mid-to-late 1860s, Democrats produced and circulated racist ideas about all the tragedies that would plague the nation if corrupt and incompetent Black people received the ballot. As I show in my new book, Stamped from the Beginning: The Definitive History of Racist Ideas in America, racist ideas have long been produced and deployed to rationalize racist policies and to make Americans believe that the effects of those policies—racial inequities and disparities—are normal and the fault of Black people.

johnson

US President Andrew Johnson vetoed the Civil Rights Act of 1866 upon entering office. His veto was overridden by Congress. Credit: Wikimedia Commons

One of the producers of the racist idea of the incompetent Black voter was the leader of the Democratic Party. Andrew Johnson succeeded Abraham Lincoln and then promptly vetoed the 1866 Act. “No independent government of any form has ever been successful in [Black] hands,” Johnson proclaimed in his Third Annual Message to Congress on December 3, 1867. With the ballot, Johnson argued, Blacks would cause “a tyranny such as this continent has never yet witnessed.”

Republicans, who had a two-thirds majority in Congress, overrode Johnson’s veto. Some Republicans, however, shared Johnson’s racist views. They were more concerned about alienating racist white voters than welcoming Black voters. Many cared more about reelection in 1866 and 1868 than electing a democracy. “Radical Republicans,” as they were known, were concerned about these matters, but they hardly wielded the power to connect voting rights to civil rights in American law.

I always think about what would have happened if the Radical Republicans had wielded that power? What if they had seized the time and written “to vote” as well as “and gender” into the Civil Rights Act of 1866, and those inalienable rights of US citizens had been secured by the 14th Amendment? The last 150 years may have been strikingly different, not just for Black people, but for all Americans whose voting privileges have been revoked or not extended. That is not to say that those trying to control elections through draining their opponents’ voting pools would have stayed home. Quite the contrary. The birther movement would have showed up long before Donald Trump, and stalked generations of Barack Obamas as part of a larger strategy to strip Black people and other peoples of their citizenship (since they could not strip these citizens of their voting rights).

But at least all those Black and women and non-landowning citizens of old—all those poor, young, Black, or elderly citizens without a photo identification card today—would not have faced, would not be facing, the contradiction of being prohibited from voting in a self-identified democracy. At least historians could be writing that their basic civil right of voting was first granted by the Civil Rights Act of 1866. And maybe, just maybe, Americans could have spent their democratic time making the civil right of voting a human right for all taxpayers living in the United States, no matter their citizenship status, no matter their age, no matter their judicial status. Instead, tens of millions of children, inmates, and immigrants living in this country and paying taxes remain disenfranchised.

The Civil Rights Act of 1866 could have started the real work of democracy. Americans could have been working over the last 150 years on guaranteeing universal voting, in its broadest sense. But of course that did not happen. Tyranny disguised as democracy has been working overtime to limit voting. And I have been left lamenting as I read and write and witness this other American history.

kendi-headshotIbram X. Kendi is a historian at the University of Florida and the author of Stamped from the Beginning: The Definitive History of Racist Ideas in America, which is a finalist for the 2016 National Book Award for Nonfiction. Follow him on Twitter @DrIbram.

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  1. David C. Williard

    The short answer? Nothing changes. The Mississippi Plan and Williams v. Mississippi still happen and disfranchise large swathes of the electorate on paper and in practice. I’m not sure how the author’s argument changes anything about the way white supremacy gets codified and enforced from “Redemption” until the passage of the Voting Rights Act in 1965.

    To quote Justice McKenna writing for a unanimous Court in Williams v. Mississippi:
    “Besides, the operation of the Constitution and laws is not limited by their language or effects to one race. They reach weak and vicious white men as well as weak and vicious black men, and whatever is sinister in their intention, if anything, can be prevented by both races by the exertion of that duty which voluntarily pays taxes and refrains from crime. It cannot be said, therefore, that the denial of the equal protection of the laws arises primarily from the constitution and laws of Mississippi; nor is there any sufficient allegation of an evil and discriminating administration of them.”

    White supremacy at the voting booth never turned on writing explicitly race-based restrictions into the law. Instead, it relied on those who would turn race-neutral language into a systemically racialized practice of enforcement. Then as later and perhaps as at present, power lay in the registrars, magistrates, sheriffs, and judges called upon to decide who was “weak and vicious,” who was illiterate, and who was competent.

    As a matter of principle, Professor Kendi is surely correct–casting voting as a privilege distinct from a right has created a discourse of restriction and repression. As a matter of practice, however, of changing what happened historically, it’s hard to see what difference language granting the races equal rights to vote would have made in a society that accepted Williams and Plessy, Slaughterhouse and Cruikshank, as the law of the land on equal protection.

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