All Hail the Civil Rights Act of…1875?

In his recent amazing interview in New York Magazine, Chris Rock gave a concise history of race in America. "When we talk about race relations in America or racial progress, it’s all nonsense. There are no race relations. White people were crazy. Now they’re not as crazy."

I think when we think about the entire scope of the civil rights struggle for black Americans, it’s easy to flatter ourselves (we white people) that it represents a sort of linear progression of enlightenment, culminating in the 1964 Civil Rights Act. One certainly has to admit there’s been a progression. The 250 years or so where we abducted and enslaved human beings was worse than the subsequent era where we didn’t do that. And that ushered in the more enlightened period where we were merely engaged in a coordinated campaign of white supremacist terrorism married to the coercive power of the state to disenfranchise and pilliage and plunder the property, opportunity, and wealth of black Americans. Ending that period was better still! By 1964 we could all congratulate ourselves on our moral sophistication and laugh at our barborous ancestors.

But here’s one thing I learned from reading Eric Foner’s Reconstruction. Every provision in the "landmark" 1964 Civil Rights Act relating to racial discrimination had either been enacted into law, or introduced in Congress, nearly a century before. 

The Civil Rights Act was not even close to the first bill that shared that name.

Let’s start in 1866, with the passage of, you guessed it, the Civil Rights Act. This was vetoed by History’s Greatest Monster President Andrew Johnson, but Congress overrode it. The contents of the bill presaged the soon-to-be-ratified 14th Amendment. First, the bill conferred citizenship on all persons born in the United States, yes, including all freed slaves. Then it defined the rights and privileges of that citizenship:

Such citizens, of every race and color, and without regard to any previous condition of slavery or involuntary servitude, … 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….

So after 1866, at least statutorily, state and federal discrimination in application of the laws was illegal. And the right to make and enforce contracts was taken to include prohibition of employment discrimination on the basis of race.

These were expansive protections, but left out a lot. These provisions relating to contracts, labor, and property were classified under the rubric of "civil" equality, as distinct from political equality (voting and holding office, etc), or social equality (public access to commerce, etc.) Private discrimination was untouched. As was school segregation, right of access to public accommodations, right to serve on a jury, voting rights.

Racial political equality came with the 15th Amendment in 1870, which prohibited federal or state governments from denying a citizen’s right to vote based on race.

In 1875 we managed to fill in most of the other legal deficiencies in social equality, with, yes, the Civil Rights Act of 1875, signed into law by President Grant. This represented the last gasp of Reconstruction-era action on behalf of black rights. The bill was the culmination of Massachusetts Senator Charles Sumner’s legacy; as he lay dying following a heart attack in 1874, he whispered to a visitor, "You must take care of the civil-rights bill, …don’t let it fail." The bill was passed and signed following his death:

Be it enacted, That all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude.

For the first time in American history, it became a federal crime for a private individual or business to discriminate on the basis of race. Violators were subject to fine and imprisionment under a federal court of law. And this momentous legislation was actually the watered-down version. Sumner’s original Senate bill had also outlawed racial discrimination in public schools, and in churches. The Senate passed the bill without the church provision. Over in the House, the school integration provision was deeply contentious among southern whites, to say the least, and it didn’t survive into the final version.

One problem with both Civil Rights Acts was that they didn’t empower the federal government to initiate investigations and prosecute violations. The burden was on the victim to sue for his rights. (The Department of Justice wasn’t established until 1870, which might have had something to do with it.) Eric Foner describes the problem relating to the 1875 Act:

The law left the initiative for enforcement primarily with black litigants suing for their rights in the already overburdened federal courts. Only a handful of blacks came forward to challenge acts of discrimination by hotels, theaters, and railroads.

Alas, it became irrelevant anyway. In 1883, the Supreme Court struck down the law as unconstitutional. The Civil Rights Act of 1875 was the last major piece of civil rights legislation taken up by Congress until the mid-20th century.

The Civil Rights Act of 1964 basically stitched together various provisions from the Acts of 1866 and 1875, including those bits excised during debate. It outlawed discrimination in "any place of public accommodation," and included a very similar list of public venues to the 1875 Act. It finally desegregated schools, and began correcting the previous enforcement impediments by empowering the Justice Department to initiate investigations. And of course, crucially, in addition to race and color, it outlawed discrimination based on religion, sex, and national origin. 

How did a similar list of protections suddenly become constitutional between 1883 and 1964? The ensuing evolution of the interpretation of the Commerce Clause deserves much of the credit. Our racial moral intuition was perfectly functional a hundred and fifty years past. And not just our intuition: These provisions were enacted, they were the law of the land! 1875 had empassioned black civic leaders. It had a congressional majority willing to fight. It had a president willing to give his signature. The Civil Rights Era just had to wait around for Commerce Clause jurisprudence to catch up.

There is a slight tongue-in-cheekiness here. Of course we’re getting better at this. "White people were crazy. Now they’re not as crazy." And our kids’ll be even less crazy. But we are not discovering or independently innovating new, more humane, more cosmopolitian codes and ideals. We’re just making manifest the codes and ideals we’ve known were just and true for a very, very long time. "It was a different time" almost never passes as a viable argument, and is almost always a crutch for the ignorant. We know right from wrong perfectly well now. We knew it perfectly well then.

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