Historical Context in Civil Rights Act of 1866

Johnson offers another objection to the Civil Rights Act here, though it is more of a general objection to the balance of power between the federal and state governments. According to Johnson, “the Constitution guarantees nothing with certainty if it does not insure to the several States the right of making and executing laws in regard to all matters.” Not only does Johnson decline to cite the portion of the US Constitution upon which he constructs his claim, his assertion is an exaggeration by any standard. The Constitution guarantees many things—rights, regulations, programs, and more—with certainty.

Johnson objects to the Civil Rights Act’s attempts to organize the judicial system and marshal service in the proper adjudication and enforcement of the Civil Rights Act. The drafters of the act suspected that there may be either inertia or disobedience with regards to the practical deployment of the Civil Rights Act. Johnson criticizes each one of these attempts to guide these various federal departments, in each case citing a broad principle that would be threatened—“public liberty,” “the preservation of individual rights,” and, most apocalyptically of all, “public peace and order.” In none of these cases does Johnson offer any rationale as to why increased federal ordinance will beget catastrophe. Because Johnson does not offer clear rationale for these objections, instead relying on appealing to public fears, his objections lack persuasive power, revealing that his primary aim is to advance his states’ rights agenda.

In this paragraph, Johnson expresses some of the core political philosophies of the Democratic party. The Democrats of the 1860s were the conservatives of their age, interested—as are the Republicans of modern American politics—in downscaling federal taxation, legislation, and control. In the 19th century, one of the central issues dividing Democrats and their more progressive allies, the Republicans, was that of states’ rights. To the Republicans who drafted the Civil Rights Act, there was little question that the federal government ought to be able to pass legislation which implicates every citizen and which supersedes every other level of governance, whether state or civic. The Democrats, Johnson included, fundamentally disagreed with such a vision. To them, states and state governments occupied the same stratum of importance as the federal government. Thus, Johnson questions the validity of federal laws, asserting that for “States no similar provision exists vesting in Congress the power ‘to make rules and regulations’ for them.” To the Republicans controlling Congress, it was clear that state legislatures occupied a lower rung on the lawmaking hierarchy than the Federal Congress. To Johnson, no such hierarchy ought to exist. His veto is built on an argumentative structure that is concerned more with states’ rights than civil rights.

In this paragraph, Johnson levels two criticisms against the Civil Rights Act. First, the act offers African Americans the same panoply of rights available to white citizens without explicitly stating the punishments to which they are subject. Johnson seems to ignore that the primary right granted—that of citizenship—inherently entails certain demands and limitations. Second, it is a breach of states’ rights to prevent any state from exercising “any power of discrimination between the different races.” This second point, unrelated to the first, is the crux of Johnson’s veto and lies near the heart of his politics. The issue is states’ rights. Despite his position as the most powerful figure in the federal government, Johnson could not accept an act by which the federal government would supersede the respective desires of the state governments.

In this passage, Johnson argues that the Civil Rights Act is unnecessary—the rights it grants are already secured to native-born citizens and foreigners alike, without any need to explicitly delineate the scope or reach of the ruling. John then pivots, stating that anyone wishing to be granted citizenship ought to “pass through a certain probation”; his vision is one of meritocracy. By this logic, it would be unfair to grant citizenship to African Americans without forcing them through a vetting process while continuing to submit foreigners to such a process. If Johnson’s method of argumentation thus far appears to lack cohesion, that is because his points do not follow a logical sequence, emerge from a core principle, or substantiate a central thesis.

One of President Johnson’s critiques of the Civil Rights Act is that it was passed in Congress without the presence of the eleven ex-Confederate states of the South. Johnson may have felt frustration at this fact, for one of his first acts as president was to institute his own Reconstruction policies—all without the permission of Congress—which included resurrecting the state governments and legislative bodies of the South. When the new Southern lawmakers arrived in the capitol, however, Johnson watched Congress reject the Southern statesmen. This is the context in which Johnson laments the lack of Southern representation in Congress.

Johnson’s objection to Section 1 of the Civil Rights Act reflects one of the most essential political beliefs of the Democratic party, of which Johnson was a member. The Democrats, led by Johnson, represented the conservative end of the political spectrum; the Republicans, the progressive. Then, as now, the conservative agenda included an overarching desire to scale down the powers of the central government and to bolster the autonomy of individual states and local institutions. Perhaps the primary objection Johnson levels at the Civil Rights Act is that it places a tremendous amount of legislative, executive, and judicial power in the hands of the federal government and out of the hands of the states. Johnson is correct in this assertion, and yet he does not fully explain the benefit of denying the Civil Rights Act; in this passage, his chosen cause is that of “state citizenship,” an issue that has rarely, if ever, garnered serious discussion.

When Johnson cites his “sense of duty to the whole people,” it is not entirely clear to whom he is referring. It may be that “the whole people” is intended to encompass the Americans not expressly helped by the Civil Rights Act, namely white men. It could also refer to white Southerners, a group that had benefited from disempowering African Americans and that continued to do so throughout the Reconstruction era. In any event, Johnson’s language is vague in its attempts to convey broad concern and therefore constitutes an ineffective piece of rhetoric.

President Andrew Johnson vetoed the Civil Rights Act, just as he vetoed much of the progressive legislation the Radical Republicans passed in Congress from 1865 to 1869. Johnson’s reasons for the vetoes are difficult to pin down with absolute certainty, but are far from mysterious. Johnson was forever at political and philosophical odds with the Republicans. He was Southern, deeply conservative, and a former slave owner. His vision for Reconstruction was to raise the South to its former state of economic stability, not to drastically change the face of American culture, as the Republicans wished.

The Civil Rights Act of 1866 became law on April 9th. It was the first major law to be passed despite a president’s veto. Congress would do this several other times during Johnson’s tenure as president, with this first instance irreparably damaging the relationship between the executive and legislative branches. Johnson’s objections in this veto on constitutional grounds likely motivated Congress to write and pass the Fourteenth Amendment to ensure that civil rights would be protected in the Constitution.

Prior to the Fourteenth Amendment, the United States Congress had passed the Naturalization Act of 1798 and the Naturalization Law of 1802. President Johnson is drawing on the 1802 law, which provided the requirements through which a person may obtain citizenship: be a “free white” person, declare intent to become a citizen three years in advance, remain in residency for five years. Since Johnson advocates for a particular probation, the legal grounding for his logic is flawed. In 1802, when the Naturalization law was written, the country had yet to remove the “free white” requirement, making it an outdated source in the context of the Civil Rights Act.

President Johnson’s advocacy for the states to have the right to “exercise any power of discrimination” represents one of the chief points of frustration that Frederick Douglass expressed in his essay “Reconstruction” in December of 1866. Johnson and the conservative Democrats touted the importance of states’ rights; however, Douglass articulated that a lack of consistency across a country only harms a population and that civil rights need to be supported by the federal government to provide safety and security for the citizenry.

On April 9, 1866, the House of Representatives voted to override President Johnson’s veto. A vast majority of the House voted in favor of the override, with 122 votes for, 41 against, and 21 abstentions. It was a nearly unanimous vote for the well-represented Republican party, who had 132 seats compared the Democrats’ 41.

On April 6, 1866, the Senate successfully voted to override President Johnson’s veto. It was a strong majority vote, with 33 for and 15 against the override. With 37 Republicans in the Senate, compared to the Democrats’ 9, the Republican party had an upper hand in the vote.

The Senate quickly overrode President Johnson’s veto—just ten days after he made his decision. This quick turnaround on the part of the Senate, and the House of Representatives just three days later, indicates that Republican lawmakers knew that Johnson would object to the legislation. Earlier in 1866, Johnson had vetoed the second Freedmen’s Bureau Bill, which contained many provisions that eventually made their way into the Civil Rights Act of 1866.

In the United States Senate, the Secretary of the Senate is an elected officer who manages the day-to-day operations of the governing body, such as opening and closing daily sessions as well as examining and signing acts that the Senate passes.

John Weiss Forney (1817–1881) served as Secretary of the Senate from 1861 to 1868, during the presidencies of Abraham Lincoln and Andrew Johnson. After Lincoln’s assassination, Forney supported Johnson for a time, but quickly joined fellow Republicans in Congress in opposing the Johnson’s regressive Reconstruction policies.