The 1866 civil rights revolution

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Wanjiru Njoya
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The phrase “equality of opportunity” is expressed by the Civil Rights Act of 1964 as a nondiscrimination principle. There has been much debate on whether the nondiscrimination principle is a formal right to equality before the law, reflecting the principle that everyone has a right not to be discriminated against, or whether it is a substantive right vested in specified groups (e.g., blacks or women) to give them special legal protection that members of other groups (e.g., whites or men) do not enjoy.

Many conservatives and left libertarians argue that the nondiscrimination principle of the 1964 Civil Rights Act merely denotes a right to formal equality protecting everyone and that those who see it as a law concerned with substantive outcomes for blacks or women are “misinterpreting” the law. As David Gordon has argued, the notion that civil rights legislation confines itself to safeguarding formal equality is a fallacy. That fallacy is easily unraveled by observing that formal equality before the law had already been conferred by the Civil Rights Act of 1866. As Richard A. Epstein observes:

“The 1866 statute gave to all individuals rights such as the right to contract, to hold property, to convey real estate, to testify in court, and to sue or be sued. It essentially guaranteed civil capacity — the right to participate in a social order organized under the law of property, contract and tort. It was a civil rights act that primarily dealt with economic rights and liberties.”

The 1866 Civil Rights Act guaranteed civil rights to U.S. citizens “of every race and color, without regard to any previous condition of slavery or involuntary servitude.” All citizens were granted “full and equal benefit of all laws and proceedings for the security of person and property,” ensuring that all citizens would have “the same right, in every State and Territory of the United States.” The 1866 statute guarantees full civil and economic rights to all citizens regardless of their personal identity, such as race or sex. As expressed by President Andrew Johnson, “A perfect equality of the white and colored races is attempted to be fixed by Federal law in every State of the Union. ... In no one of these can any State ever exercise any power of discrimination between the different races.” It is clear therefore that the 1866 Civil Rights Act guaranteed racial equality before the law and that this was understood as a principle of nondiscrimination.

The 1866 statute was revolutionary, which is precisely why President Johnson attempted to veto it. He saw it as an unconstitutional attempt by Congress to repeal state laws and, in principle, vest power in Congress to repeal any state law to which it might take exception. He gave several examples illustrating the revolutionary nature of what was to be achieved by the 1866 statute in guaranteeing full racial equality. President Johnson stated:

“In all our history, in all our experience as a people living under Federal and State law, no such system as that contemplated by the details of this bill has ever before been proposed or adopted. They establish for the security of the colored race safeguards which go infinitely beyond any that the General Government has ever provided for the white race. In fact, the distinction of race and color is by the bill made to operate in favor of the colored and against the white race.”

That was revolutionary indeed. Therefore, it is clear that the 1964 Civil Rights Act was not necessary for the purpose of giving citizens civil rights in the sense that most people mean when they refer to formal equality, equality before the law, or “equal opportunities.” The 1964 statute could not logically be intended to confer formal equality on all citizens, as that had already been granted in 1866.

Given that the 1964 Civil Rights Act was not concerned with formal equality but rather sought to give further content to the nondiscrimination principle, the question then arises whether the nondiscrimination principle in this legislation denotes substantive equality. Those who describe the nondiscrimination principle as a principle of substantive equality (that is, concerned with equal outcomes and not just equal opportunities) are correct in the sense that the legislation confers rights specifically on certain identity groups and not others. As Richard A. Epstein explains: “The US Civil Rights Act 1964 is anything but a human rights statute, despite being labelled as such. In this Act, only certain individuals, occupying certain roles, can claim the protection of the statute, while other individuals, occupying other roles, are unambiguously subjected by law to certain correlative duties.”

In the 1964 revolution, the demand for “equal opportunities” no longer referred to equal status before the law, principally the ability to own property and enter contracts, but expressed the idea that the life experiences of different races must be equalized: equal opportunities to have the same life experience. For example, if you are refused service in a restaurant because of your race, that means your opportunity to dine in restaurants is not equal to the opportunity of someone of a different race to dine in restaurants. This is the reasoning in the Colorado litigation about “gay cakes” and “transgender cakes,” now on its way to the Supreme Court for a second time — the argument in those cases is that if gay or transgender people cannot force a specific baker to bake their cakes, it means their opportunity to purchase cakes from bakeries is not equal to the opportunity of heterosexuals to purchase cakes from bakeries.

The “right” being expressed in such cases is not a formal right to equality before the law, as there is no legal right to dine in any specific restaurant or purchase cakes from any specific bakery. The owner of a business has the prerogative to exclude anyone who for any reason — for example, for not being clad in appropriate attire or not being able to pay for his purchase — the owner does not wish to host or serve in his property.

Defenders of the nondiscrimination “right” would counter that while excluding anyone for not being appropriately dressed is acceptable, excluding someone based on his race or sexuality is morally different and therefore amounts to a “right.” From a Rothbardian perspective, there is of course no “right” not to be discriminated against. All rights are property rights, derived from the principle of self-ownership and the doctrine of private property. Self-ownership entails the liberty to decide whom to contract with or associate with, and private property entails the right to exclude. I have no right to an “equal opportunity” to visit your home for dinner, and if you invite others and exclude me, that is not a breach of my right to equality before the law because there is no such “right” in the first place.

As there is no right not to be discriminated against, the 1964 Civil Rights Act is nothing more than a statement of political principles that has now been elevated to the de facto highest law of the land. In his book “The Age of Entitlement,” Christopher Caldwell observes:

“The changes of the 1960s, with civil rights at their core, were not just a major new element in the Constitution. They were a rival constitution, with which the original one was frequently incompatible — and the incompatibility would worsen as the civil rights regime was built out. Much of what we have called ‘polarization’ or ‘incivility’ in recent years is something more grave — it is the disagreement over which of the two constitutions shall prevail: the de jure constitution of 1788, with all the traditional forms of jurisprudential legitimacy and centuries of American culture behind it; or the de facto constitution of 1964, which lacks this traditional kind of legitimacy but commands the near-unanimous endorsement of judicial elites and civic educators and the passionate allegiance of those who received it as a liberation.”

In his review of Caldwell’s book, David Gordon does well to highlight the constitutional implications of Caldwell’s argument: “By forbidding private discrimination on grounds of race, the Civil Rights Act of 1964 took the first step toward the destruction of what Caldwell calls the ‘old constitution’ by which America had been governed.”