LEGAL MEMORANDUM
TO: Interested Federal Officials, Judicial Officers, and Counsel
FROM: Ted Hayes
RE: Application of the Civil Rights Act of 1866 (14 Stat. 27) to Modern Sanctuary Jurisdictions
DATE: [Insert Date]
I. QUESTION PRESENTED
Whether modern sanctuary jurisdictions, by establishing policies and customs that obstruct federal law and reallocate constitutional benefits, violate Sections 1–10 of the Civil Rights Act of 1866 and Section 1 of the 14th Amendment to the United States Constitution.
II. SHORT ANSWER
Yes. The Civil Rights Act of 1866 was enacted as a remedial federal war statute to secure the rights, citizenship, and constitutional inheritance of the formerly enslaved American Africans—Freedmen and Freemen.
Sanctuary jurisdictions operate under color of law and/or custom to obstruct federal enforcement and to deprive these particular federalized citizens of rights secured by the Act. Such conduct falls squarely within the prohibitions anticipated and addressed by Sections 1–10 of the Act and is preempted by federal supremacy.
III. STATUTORY AND CONSTITUTIONAL BACKGROUND
A. Civil Rights Act of 1866
The Civil Rights Act of 1866 (14 Stat. 27) was enacted in the immediate aftermath of the Civil War to enforce emancipation and to correct a specific historical injustice: the total deprivation of legal personhood experienced by chattel slaves and their descendants.
The Act predates and informs the 14th Amendment. Its provisions were drafted with explicit anticipation of state and local resistance through law, policy, and custom.
B. 14th Amendment, Section 1
Section 1 of the 14th Amendment constitutionalized the protections of the 1866 Act, prohibiting states from abridging the privileges or immunities of citizens of the United States, depriving persons of due process, or denying equal protection of the laws.
IV. BENEFICIARY INTENT AND SCOPE
The Civil Rights Act of 1866 was not immigration legislation. It was a remedial statute enacted only because American Africans—Freedmen and Freemen—had been:
-
Brought to the United States against their wills,
-
Held in hereditary chattel bondage,
-
Denied access to courts, property rights, contract rights, and legal protection.
With the sole exception of the formerly enslaved, Americans of immigrant heritage already possessed legal protections under existing law. Immigrants entered the United States voluntarily and assumed the risks and rewards of success or failure; it was/is by choice.
Section 1 of the Act therefore mandates that American Africans receive “the same right… and equal benefit of all laws… as is enjoyed by white citizens,” demonstrating that white (largely immigrant-heritage) Americans already stood on protected legal ground.
The federal statute exists to elevate those who did not.
V. STATUTORY MAPPING TO SANCTUARY PRACTICES
Section 1 — Substantive Rights
Sanctuary policies distort equal protection by reallocating public benefits, protections, and priorities away from the Act’s intended beneficiaries and toward unlawful foreign presence, frustrating the statute’s remedial purpose.
Section 2 — Criminal Enforcement (Law and/or Custom)
Section 2 explicitly criminalizes deprivation of rights under color of law or custom. Sanctuary jurisdictions operate primarily through declared custom and policy, placing them squarely within the statute’s enforcement provision.
Section 3 — Federal Jurisdiction
Congress vested exclusive jurisdiction in federal courts to prevent hostile state interference—sanctuary assertions of local autonomy conflict with this grant.
Section 4 — Federal Officers
Sanctuary policies obstruct federal judges, marshals, and agents authorized to enforce federal law, constituting actionable interference.
Section 5 — Military Support
The Act authorizes the use of the militia and armed forces where civil resistance obstructs enforcement. Organized, institutional sanctuary defiance meets this threshold. Similar to South Carolina defying federal law and willfully, knowingly, and politically organizing the military to attack the USA.
Section 6 — Penalties
Today, officials, i.e., public federal employees, act knowingly and willfully, satisfying statutory requirements for criminal liability.
Section 7 — Removal
Sanctuary jurisdictions’ open noncompliance creates grounds for removing cases from state to federal court.
Section 8 — Protection of Officers and Witnesses
Local retaliation and obstruction against federal agents implicate federal shielding provisions.
Section 9 — Habeas Corpus
Selective enforcement and distorted detention standards trigger federal habeas review authority.
Section 10 — Supremacy Clause Enforcement
Any state or local law or custom inconsistent with the Act is null and void. Sanctuary ordinances directly conflict with federal enforcement and are therefore preempted.
VI. HISTORICAL PARALLEL AND CONSTITUTIONAL SIGNIFICANCE
The Civil Rights Act of 1866 was drafted in response to state defiance following emancipation, i.e., Black Codes, the progenitor of the 1877 birth of Jim Crow. Modern sanctuary practices replicate that defiance in non-kinetic form, substituting local custom for armed resistance.
The constitutional principle is identical: state and local authorities may not nullify federal civil rights law.
VII. CONCLUSION
The Civil Rights Act of 1866 already contains the tools necessary to address modern sanctuary defiance. It’s very text anticipates resistance by law, policy, and custom—and provides for federal, judicial, and military enforcement where necessary.
Failure to enforce the Act constitutes repression by omission and undermines the constitutional settlement achieved through the Civil War.
The statute remains valid.
The authority remains intact.
What remains is enforcement.