ࡱ> .0-` bjbjss ;$sPt( ( ( 8` l a @||@$Wh  4   χ8]( 10aUUU$ad( ( $4L The Civil Rights Act of 1866 As the Thirtyninth Congress organized itself, the provisionally reconstructed Southern States were passing the Black Codes, which limited the rights of blacks and freed slaves. Largely in response to these developments, on January 5, 1866, Senator Lyman Trumbull of Illinois, Chairman of the Senate Judiciary Committee, introduced the Civil Rights Bill. The bill was designed to secure equality between blacks and whites in the enjoyment of certain rights basic to ordinary life. Section 1 formed the heart of the bill. In its original form, this section mandated equality with respect to both civil rights in general and as specifically listed. [FN53] Senator Trumbull specifically stated that he designed the bill to override discriminatory state laws like the Black Codes. He explained: Since the abolition of slavery, the Legislatures which have assembled in the insurrectionary States have passed laws relating to the freedmen, and in nearly all the States they have discriminated against them. They deny them certain rights, subject them to severe penalties, and still impose upon them the very restrictions which were imposed upon them in consequence of the existence of slavery, and before it was abolished. The purpose of the bill under consideration is to destroy all these discriminations, and to carry into effect the constitutional amendment. [FN54] He maintained that the Thirteenth Amendment empowered Congress to pass the bill because legal race discrimination constituted a badge of servitude and thus violated the Thirteenth Amendment. More broadly, he stated that the freedom that the Thirteenth Amendment was designed to protect necessarily included equal enjoyment of the basic legal capacities of contract and property and the basic protections of government. [FN55] The claim that Congress had such power provoked heated controversy. The Civil Rights Bill, whatever its primary object may have been, was not limited to protecting freed slaves and was not even limited to the states in which slavery had formerly existed. [FN56] According to its opponents, the new national rule of equal civil rights was nothing but an attempt by Congress to rewrite the states' domestic laws of property, contract, personal security, and so forth. [FN57] State law, they argued, created citizens' rights; if Congress could legislate upon all matters of state law, it could pass national laws on all those subjects, thereby overthrowing the principle of enumerated powers on which American federalism rested. [FN58] Advocates of the Civil Rights Bill responded that it was limited to racial equality and did not represent federal interference with the substance of state law. The states would remain free to create whatever rights they pleased, as long as they gave them to all citizens. [FN59] Their argument relied on the realization *1404 that congressional power to require equality did not necessarily have to rest on a claim of plenary federal power to make private law. A power limited to requiring equality would be enough to authorize the bill. [FN60] One Republican who shared the doubts about the adequacy of Congress' constitutional power was Representative John Bingham of Ohio, a member of the Joint Committee and the principal drafter of Section 1 of the Fourteenth Amendment. [FN61] Bingham, a firm abolitionist, favored the policy of the Civil Rights Bill but thought that Congress lacked the power to enact it. [FN62] These doubts may have been shared by President Johnson, who said that he vetoed the bill on the grounds that it exceeded Congress' power. [FN63] These constitutional arguments did not sway the Republican majority. Over the President's veto, they made the bill the Civil Rights Act of 1866. Section 1 provided: [A]ll 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 *1405 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. 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