Federalism in 1868 and 2012

Federal Government and American Union circa 1862. Via Wikimedia Commons, published by J.T. Pompilly.

146 years ago today, Congress signed into law the Civil Rights Act of 1866. The law – with certain restrictions – granted citizenship to anyone born in the United States.

In the wake of the Civil War and the subsequent passage of the 13th Amendment, which abolished slavery, previously secessionist states ushered in a series of laws – which would become known as the Black Codes – seeking to manage and control a new and growing free black population. For example, Mississippi enacted legislation prohibiting black ownership of farmland; several states passed vagrancy laws, declaring unemployed and property-less individuals to be vagrants, subject to arrest and imprisonment; and others created legal support for forcing black Americans into labor agreements.

A revolutionary change in federalism

President Andrew Johnson, Abraham Lincoln’s successor, supported the authority of these southern states to pass such laws. Johnson afforded members of the former confederacy broad leniency in crafting the post-war racial and economic landscape within their boundaries. But Republicans in Congress, believing that such state legislation was putting into jeopardy the rights and privileges so recently afforded to the nation’s black population, saw the need for federal intervention.

Johnson sent Carl Schurz, a Civil War major general, to the South to study the racial system that was emerging. Schurz warned the president that without federal involvement, blacks faced “a system of coercion, the enforcement of which will be aided by the hostile feelings against the negro now prevailing among whites, and by the general spirit of violence, which in the South was fostered by the influence slavery exercised upon the general character.”

Though the president ignored Schurz’ warnings, many northern Republicans agreed with the Major General’s characterization of the South. The end of the Civil War and the constitutional prohibition of slavery, they said, required federal oversight to ensure that states were protecting the basic economic and legal rights of the nation’s black population.

As Illinois Senator Lyman Trumball said in January 1866, “When it comes to be understood in all parts of the United States that any person who shall deprive another of any right or subject him to any punishment in consequence of his color or race will expose himself to fine and punishment, I think such acts will soon cease.”

Representative James F. Wilson of Iowa echoed Trumball’s sentiments. The extension of rights and citizenship to African Americans, said Wilson, “raise[d] by necessary implication the power in Congress to protect them.”

On February 2, 1866, the civil rights bill passed the Senate. Six weeks later it cleared the House. Challenging the constitutional authority of Congress to confer citizenship, Johnson promptly responded with an executive veto. The Senate, though, in a vote of 33 to 15, voted to override the president’s objection, and the House, by a 122-41 margin, quickly followed. On April 9, the Civil Rights Act of 1866 was officially written into law.

As legal scholar Robert J. Kaczorowski argues, this legislation constituted a radical shift in the American political system. The law, writes Kaczorowski, which “conferred on all Americans a precious status of citizenship, enumerated some of the fundamental rights of citizenship, and extended to citizens federally enforceable guarantees for the protection of their civil rights was itself a revolutionary change in American federalism.”

For the first time in the history of the nation, the preservation and protection of civil rights rested firmly in the hands of the federal government. But more fundamentally, the Civil Rights Act of 1866 marked an unprecedented reorientation of the relationship between federal oversight and individual and states’ rights. In this moment, writes Kaczorowski, Republican lawmakers declared that “sovereignty resided in the national government and included the primary authority to determine the status and secure the rights of all Americans, white as well as black.”

Two years later, in 1868, Congress ratified the 14th Amendment, effectively codifying the 1866 act into constitutional law. For a brief moment, it seemed as though the legal protections of citizenship would be forever expanded to black Americans.

Reversals from the Court

Within half a decade, though, the Supreme Court would begin the slow repeal of civil rights for the nation’s African Americans. In 1873’s Slaughterhouse cases, the court issued a narrow interpretation of the 14th Amendment, holding that the Constitution did not restrict the police powers of the state of Louisiana.

Three years later, in U.S. v. Cruikshank, the court ruled that the 14th Amendment applied only to government-sponsored discrimination, and “adds nothing to the rights of one citizen against another.”

By the late 1870s, the Supreme Court had declared dead the revolutionary experiment of constitutional authority that Republicans in Congress had called upon to usher forth the Civil Rights Act of 1866 and the 14th Amendment in 1868. While adhering to the letter of the law, the court rejected the spirit of the legislation by squarely vesting the power to define and protect citizenship and civil rights within individual states.

Between 1868, when the 14th Amendment was ratified, and 1896, when the Supreme Court, in Plessy v. Ferguson, established the infamous “separate but equal” doctrine, African Americans won only one case invoking 14th Amendment protections.

As Kaczorowski writes, “The Supreme Court decided against this revolutionary constitutionalism in a reactionary resurgence of states’ rights that resulted in the virtual re-enslavement of southern black Americans.”

Federalism in 1868 and 2012

This spring, the Supreme Court is considering another question of governmental power that could shape the course of federalism for decades to come: Is the “individual mandate” of the Affordable Care Act (ACA) constitutional?

Like the issue of civil rights in the 1860s and ‘70s, healthcare in 2012 has become the terrain upon which the battle over centralized power is being fought. At its heart, the ACA brings into question how far the federal government can go to regulate state activity. While the specific legal issues are unquestionably different, these debates surrounding government intervention and centralized power in 2012 provide sharp echoes to the issues of federalism over which the country was wrestling in the waning decades of the nineteenth century.

For further reading, see:

Robert J. Kaczorowski, “To Begin the Nation Anew: Congress, Citizenship, and Civil Rights after the Civil War,” The American Historical Review, Vol. 92 n. 1 (Feb 1987).

Abigail Perkiss is an assistant professor of history at Kean University in Union, New Jersey and a fellow at the Kean University Center for History, Politics and Policy.