Chapter

Discerning the Future from the Past

George Rutherglen

in Civil Rights in the Shadow of Slavery

Published in print December 2012 | ISBN: 9780199739707
Published online January 2013 | e-ISBN: 9780199979363 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199739707.003.0009
Discerning the Future from the Past

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Before 1866, civil rights existed only as an uncertain implication of state citizenship. The 1866 Act transformed civil rights into the foundation of an entirely new field of law, which has proliferated in the nearly century and a half since its enactment. The parallels between the act and current law exhibit the expansive tendency of principles of equality and nondiscrimination, as well as the durable features of common law remedies and means of enforcement. The history of the act also reveals the important role that Congress plays in constitutional interpretation, directly by enforcing constitutional rights by “appropriate legislation” and indirectly by shaping the legal landscape in which constitutional decisions are handed down. The long dialogue between Congress and the Supreme Court over the interpretation and constitutionality of the act provides an instructive example of how politics and law can work together, not separately, to bring constitutional ideals of equality closer to reality. The disagreements and discontinuities in this dialogue also reveal how haphazard progress toward equality has been. For many decades, it was suspended altogether and it might never have been revived. The contingencies that permeate the history of the act demonstrate both how durable—and how fragile—our nation's commitment to civil rights has been.

Keywords: congress; supreme court; constitutional interpretation; equality; civil rights; common law

Chapter.  8806 words. 

Subjects: History of Law

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