Reconstruction Civil Rights Acts

• Pages: 211-220
• Author: George Rutherglen

211

Chapter 10

RECONSTRUCTION CIVIL

RIGHTS ACTS

Several civil rights acts were passed during Reconstruction,

contemporaneously with the ratification of the Thirteenth,

Fourteenth, and Fifteenth Amendments. The most general of these

is section 1983, ena cted as part of the “Ku Klux Klan” Act of 1871.

1

It creates a private right of action for deprivation of federal rights

under color of state law. Although section 1983 literally applies to the

deprivation of any federal right, its most common application is to

the deprivation of federal constitutional rights. And in most cases, it

is limited to claims against the officials of state and local government,

both because most constitutional rights apply only against the

government, and because section 1983 itself requires action under

color of state law.

Section 1981, another civil rights act from the same era, applies

to a broader range of employers, although not to a broader range of

rights, than section 1983. Section 1981 was first enacted as part of

the Civil Rights Act of 1866.

2

In its current version, it grants to all

persons the same right “to make and enforce contracts . . . as is

enjoyed by white citizens.” This provision applies only to contracts,

but it applies to all contracts, whether public or private. Section 1981

therefore applies, just like Title VII, to private employers.

Both section 1983 and section 1981 have complicated histories

of enactment, reenactment, interpretation, and reinterpretation,

which to some extent are intertwined. The legislative acts and

judicial decisions that eventually gave content to these statutes make

the historical perspective particularly significant in interpreting

their provisions. Sections 1981 and 1983 can only be understood

against the background of the constitutional rights first recognized

during Reconstruction and the subsequent revitalization of those

rights after Brown v. Board of Education.

3

No source of employment

discrimination law is more heavily influenced by the development of

constitutional law. And indeed, just like the constitutional

prohibition against racial discrimination in the Fourteenth

Amendment itself, both of these statutes fell into nearly a century of

neglect before they were revived by the Warren Court.

1

42 U.S.C. § 1983 (2018).

2

Id. § 1981.

3

347 U.S. 483 (1954).