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Professors Barnett and Bernick on the Civil Rights Act of 1866
Andrew Hyman

I’d like to comment about the new book titled The Original Meaning of the 14th Amendment by Professors Randy Barnett and Evan Bernick.  It’s a very useful expression of their views, and includes discussion of the Civil Rights Act of 1866, which was written only a few months before Congress wrote the 14th Amendment.  The CRA is critical background for understanding the 14th Amendment, and no consensus about the latter will ever be likely without consensus about the former. 

Among other things, the CRA says that citizens “shall have the same right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, and convey real and personal property as is enjoyed by white citizens ….” (emphasis added).  Barnett and Bernick correctly write that the CRA “is conventionally read as solely prohibiting discrimination with respect to the civil rights specified in the act.”  But they instead advocate a fundamental-rights reading, whereby the words “is enjoyed” refer to the time when the CRA was enacted.  The relevant laws at the time of enactment had to be not just extended to people of color, but also substantially preserved, they suggest.  On the contrary, I think the conventional antidiscrimination-only reading is the right one, and there is plenty of evidence for it in the statutory text itself. 

Professors Barnett and Bernick argue that the CRA forbade states from denying the listed rights (to sue, give evidence, et cetera) to any citizen, even if the state treats everyone the same and without racial discrimination.  They hasten to add that states do not all have to conform to these rights “in precisely the same way.”  Thus we are assured that states have enough flexibility so they would not be obliterated by Congress and the federal courts.  A huge problem with that thesis is the fact that the less “precisely” we read the CRA’s requirement, the less precisely we can ban racial discrimination; it is much more likely that the CRA allowed precisely no racial discrimination with respect to the listed rights.

Some people may be inclined to think that use of the present tense language “is enjoyed” in section one of the CRA points to the time of enactment.  However, section two of the CRA also uses the present tense in a similar way (emphasis added):

[A]ny person who … shall subject, or cause to be subjected, any inhabitant of any State or Territory to … different punishment, pains, or penalties … by reason of his color or race, than is prescribed for the punishment of white persons, shall be deemed guilty of a misdemeanor….

Obviously, this refers to punishments that are prescribed as of the time the misdemeanor is committed, not the earlier time when the CRA was enacted, and thus section two tends to confirm a similar reading of section one.

            There are a few other parts of the presentation by Barnett and Bernick that I thought could have used some expansion regarding the CRA.  For example, various members of Congress indicated in 1866 that the CRA was fully justified by the Thirteenth Amendment, which seems to imply that they favored an antidiscrimination reading.  There are also explicit endorsements of the anti-discrimination reading, like this one by Senator Lyman Trumbull who wrote the CRA:

This bill in no manner interferes with the municipal regulations of any State which protects all alike in their rights of person and property. It could have no operation in Massachusetts, New York, Illinois, or most of the States of the Union.

Where are the unequivocal quotes on the other side of this CRA issue?  Finally, Professors Barnett and Bernick mention that the CRA was worded so that women and children would not automatically get any rights at the expense of men.  The antidiscrimination reading would seem to allow states the freedom to improve those old laws, but a fundamental-rights reading would apparently either preserve the status quo or else give judges discretion to decide that disagreeable aspects of the CRA-listed rights are not fundamental.  Again, it would be useful to see unequivocal quotes opposing Senator Trumbull.