Judicial interpretation has transformed the Civil Rights Act of 1866 from a simple effort to dismantle the BLACK CODES into one of the most important existing CIVIL RIGHTS laws. In assessing judicial treatment of the act, it is helpful to consider section one of the act separately from section three. Other sections have not led to noteworthy judicial development. Section one of the act, which granted all persons the same rights as white persons to make and enforce contracts, sue, be parties, give EVIDENCE, inherit, purchase, lease, sell, hold, and convey real and personal property, and to the full and equal benefit of all laws and proceedings for the security of person and property, was reenacted in modified form by the Civil Rights Act of 1870, was divided into two sections by the REVISED STATUTES of 1874, and survives as sections 1981 and 1982 of Title 42, United States Code. Section three of the act, which set forth the procedures for vindicating rights protected by section one, was scattered throughout the United States Code. Portions of it survive as CIVIL RIGHTS REMOVAL statutes and as part of section 1988 of Title 42. Judicial interpretation of the 1866 act is not unrelated to these statutory reshufflings. Cut adrift from their moorings in the entire 1866 act, the act's remnants are amenable to many more interpretations than the original provision.
Cases decided in the years immediately following the 1866 act's passage are particularly important in ascertaining its original meaning. The REVISED STATUTES of 1874 would strip the act's descendants of any close resemblance to the original measure. And once the courts became accustomed to applying the FOURTEENTH AMENDMENT, much of the 1866 act would become superfluous. In addition, ratification of the Fourteenth Amendment eliminated most doubts about the act's constitutionality.
Prior to ratification of the Fourteenth Amendment, most courts were willing to sustain the act under Congress's THIRTEENTH AMENDMENT power to proscribe SLAVERY. But at least Kentucky's highest court in Bowlin v. Commonwealth (1867) declared the act unconstitutional. Other courts avoided such a declaration only by interpreting the act not to prohibit some forms of RACIAL DISCRIMINATION that the act's words arguably covered.
In the reported interpretations of the act, for example, courts divided over whether states could continue to outlaw marriages between whites and blacks...