The Nation’s First Civil-Rights Law Needs to Be Fixed

As America reckons with its history of racial injustice, systemic inequalities, and white supremacy, perhaps more profoundly today than at any time since Reconstruction, Congress should take a look at the nation’s oldest federal civil-rights law. That law, the Civil Rights Act of 1866, could easily be made into a much more powerful tool against structural racism.

The key first section of the law (known today as Section 1981) was a watershed in 1866. It legislated, for the first time, that citizenship belongs to persons “of every race and color” and that all citizens “shall have” the “same” right “to make and enforce contracts” and to “the full and equal benefit of all laws ... as is enjoyed by white citizens.” In the words of the Pulitzer Prize–winning historian Eric Foner, this egalitarian expansion “represented a remarkable innovation”: Up to the point of the law’s enactment, “the concept of ‘whiteness’ existed in the law as a mark of privilege”; after its passage, the civil rights of white Americans were supposed to become “a baseline, a standard that applied to all citizens.” But that’s not the way things have turned out. More than 150 years later, Section 1981’s promise remains unfulfilled. By updating the law, Congress could fix that.

The problem is that the law, as currently interpreted, is too narrow; it does not, for example, protect the right to shop, eat out, cash a check, make a withdrawal, or apply for credit free from racial harassment. This means that many of the appallingly common experiences of being discriminated against for doing such things “while Black” are not redressable under Section 1981. And Black business owners have inadequate remedies under Section 1981 for the discrimination they face when they compete for capital and business opportunities—discrimination that contributes to opportunity and wealth gaps, such as the fact that Black-owned businesses generate a mere 1.3 percent of all U.S. sales and that the net worth of a typical Black family is less than one-tenth that of a typical white family.

If Congress were to act, a revitalized Section 1981 could become an invaluable tool for addressing structural racism. The statute’s potential has always been exceptional—but stymied. When the law reached his desk for signature in 1866, President Andrew Johnson, a stubborn racist, vetoed it, fuming that legislating rights for Black people discriminated against whites and violated “our” experience “as a people.” Congress overrode Johnson’s veto, making this “ the first important statute in American history to become law over the president’s objections,” as Foner wrote. But efforts to undermine the law continued.