EDITOR’S NOTE: The following is an excerpt of the bookÂ Government by Judiciary: The Transformation of the Fourteenth Amendment, Foreword by Forrest McDonald (2nd ed.) (Indianapolis: Liberty Fund, 1997).
No State shall . . . abridge the privileges or immunities of citizens of the United States
The â€œprivileges or immunitiesâ€ clause was the central provision of the Amendmentâ€™s Â§1, and the key to its meaning is furnished by the immediately preceding Civil Rights Act of 1866,1 which, all are agreed, it was the purpose of the Amendment to embody and protect. The objectives of the Act were quite limited. The framers intended to confer on the freedmen the auxiliary rights that would protect their â€œlife, liberty, and propertyâ€ â€”no more. For the framers those words did not have the sprawling connotations later given them by the Court but, instead, restricted aims that were expressed in the Act. The legislative history of the Amendment frequently refers to â€œfundamental rights,â€ â€œlife, liberty, and property,â€ and a few historical comments will show the ties between the two.
At Lockeâ€™s hands, said Edward S. Corwin, natural law dissolves â€œinto the rights of â€˜life, liberty, and estate,â€™ â€ a derivation noted by Francis Bacon. The trinity was reiterated by Sir Matthew Hale2 and sharply etched by Blackstone in his chapter on â€œThe Absolute Rights of Individualsâ€:
these may be reduced to three principal or primary articles . . . I. The right of personal security [consisting] in a personâ€™s legal and uninterrupted enjoyment of his life, his limbs . . . II. . . . the personal liberty of individuals . . . [consisting] in the power of locomotion, of changing situations or moving oneâ€™s person to whatsoever place oneâ€™s own inclination may direct, without imprisonment, or restraint, unless by due course of law . . . III. The third absolute right, inherent in every Englishman . . . of property: which consists in the free use, enjoyment and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land.3
For Blackstone â€œdue course of lawâ€ and the â€œlaws of the landâ€ did not enlarge, they did not add to, the â€œabsolute rightsâ€ of an Englishman, but rather marked the sole means whereby those rights might be diminished. These â€œabsolute,â€ â€œfundamentalâ€ rights of â€œlife, liberty, and propertyâ€ referred, in sum, to (1) personal security; (2) freedom of locomotion; and (3) ownership and disposition of property.
On this side of the water the opening Resolve of the First Continental Congress affirmed that the Colonists â€œby the immutable laws of nature, the principles of the British Constitution . . . â€˜are entitled to life, liberty, and property.â€Â 4 Blackstone, whose work was widely circulated in the Colonies, was cited in Federalist No. 84 and paraphrased by Kent.5 Instead of the â€œabsolute rightsâ€ of â€œlife, liberty, and propertyâ€ the Framers resorted to the terminology of Article IV, Â§2: â€œThe Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.â€ These words were construed â€œconfininglyâ€ by Justice Bushrod Washington on circuit, inÂ Corfield v. Coryell, as comprising â€œfundamentalâ€ rights such as freedom of movement, freedom from discriminatory taxes and impositions, ownership of property, access to the courts.6
For the â€œprincipal spokesmenâ€ and theorists of the abolitionist movement, Lysander Spooner and Joel Tiffany, â€œprivileges and immunitiesâ€ meant that a citizen has a right â€œto full and ample protection in the enjoyment of his personal security, personal liberty, and private property . . . protection against oppression . . . against lawless violence.â€Â 7 This echoes Blackstoneâ€™s formulation and in large part anticipates the privileges embodied in the Civil Rights Act of 1866. The sponsors of the Act, Senator Lyman Trumbull and Representative James F. Wilson, chairmen respectively of the Senate and House Judiciary committees, cited Blackstone, Kent, andÂ Coryell, as did others.8 And John A. Bingham, draftsman of the Amendment, stated that he had drawn the â€œprivileges or immunitiesâ€ clause of the Fourteenth Amendment from Article IV, Â§2.9
The Civil Rights Act of 1866
The meaning and scope of the Fourteenth Amendment are greatly illuminated by the debates in the 39th Congress on the antecedent Civil Rights Act of 1866. As Charles Fairman stated, â€œover and over in this debate [on the Amendment] the correspondence between Section One of the Amendment and the Civil Rights Act is noted. The provisions of the one are treated as though they were essentially identical with those of the other.â€Â 10 George R. Latham of West Virginia, for example, stated that â€œthe â€˜civil rights billâ€™ which is now a law . . . covers exactly the same ground as this amendment.â€Â 11 In fact, the Amendment was designed to â€œÂ constitutionalize â€ the Act,12 that is, to â€œembodyâ€ it in the Constitution so as to remove doubt as to its constitutionality and to place it beyond the power of a later Congress to repeal. An ardent advocate of an abolitionist reading of the Amendment, Howard Jay Graham, stated that â€œvirtually every speaker in the debates on the Fourteenth Amendmentâ€”Republican and Democrat alikeâ€”said or agreed that the Amendment was designed to embody or incorporate the Civil Rights Act.â€Â 13
Section 1 of the Civil Rights Bill provided in pertinent part,
That there shall beÂ no discrimination in civil rights or immunities . . . on account of race . . . but the inhabitants of every race . . . shall have theÂ same right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold and convey real and personal property, and to full andÂ equal benefit of all laws and proceedings for theÂ security of person and property, and shall be subject toÂ like punishment . . . and no other.14
The specific enumeration was in response to a sentiment expressed at the very outset by Senator John Sherman, who desired to secure such rights to the freedmen, â€œnaming them, defining precisely what they should be.â€Â 15 Shortly stated, freedmen were to have the sameÂ enumerated rights (as white men), be subject to like punishment, suffer no discrimination with respect to civil rights, and have the equal benefit of all laws for the security of person and property. Patently these were limited objectives; the rights enumerated, said William Lawrence of Ohio, were the â€œÂ necessary incidents of these absolute rights,â€ that is, of â€œlife, liberty, and property,â€ lacking which those â€œfundamental rightsâ€ could not be enjoyed.16 It was these â€œenumerated rights,â€ â€œstated in the bill,â€ said Martin Thayer of Pennsylvania, that were â€œthe fundamental rights of citizenship.â€Â 17
Section 1 of the Bill was a studied response to a perceived evil, the Black Codes,18 which the Republicans averred were designed to set emancipation at naught, to restore the shackles of the prior Slave Codes, and to return the blacks to serfdom. The Bill was necessary, Senator Henry Wilson of Massachusetts said, because the new Black Codes were â€œnearly as iniquitous as the old slave codes.â€Â 19 Citing the prewar Slave Code of Mississippi, which prohibited the entry of a free Negro into the State, travel from one county to another, serving as a preacher, teaching slaves, and so on, Senator Trumbull stated that â€œthe purpose of the bill . . . is to destroy all these discriminations.â€Â 20 References to the Black Codes stud the debates:21 they were described as â€œatrociousâ€ and â€œmalignant.â€Â 22Samuel W. Moulton of Illinois, William Windom of Minnesota, Thomas D. Eliot of Massachusetts, and Senator Daniel Clark of New Hampshire considered that the Bill was needed to protect the Negro against â€œdamnable violence,â€ â€œwrong and outrage,â€ â€œfiendish oppression,â€ â€œbarbarous cruelties.â€Â 23 As Senator John B. Henderson, a Republican from Missouri, stated, â€œthough nominally free, so far as discriminating legislation could make him [the black] so he was yet a slave.â€Â 24 Republicans did not have to travel beyond the halls of Congress to savor Southern recalcitrance. Toward the close of the debates, Benjamin G. Harris of Maryland, an old-line Democrat, said,
The States will still retain control and govern in their own way that portion of their population without leave asked of the United States. Mr. Speaker, all the efforts made here or elsewhere to educate the negro to an equality with the white man in the southern States, either civilly, socially or politically, are perfectly idle. The negro must be kept in subordination to the white man.25
So it proved.
The explanations of the Civil Rights Bill by the respective committee chairmen made its limited objectives entirely clear. Speaking to â€œcivil rights and immunities,â€ House Chairman Wilson asked,
What do these terms mean? Do they mean that in all things, civil, social, political, all citizens, without distinction of race or color, shall be equal? By no means can they be so construed . . . Nor do they mean that all citizens shall sit on juries, or that their children shall attend the same schools. These are not civil rights and immunities. Well, what is the meaning? What are civil rights? I understand civil rights to be simply the absolute rights of individuals, such as â€œThe right of personal security, the right of personal liberty, and the right to acquire and enjoy property.â€
quoting Chancellor Kent.26 Of â€œimmunitiesâ€ Wilson said that a black should â€œnot be subjected to obligations, duties, pains and penalties from which other citizens are exempted . . . This is the spirit and scope of the bill, and it does not go one step beyond.â€Â 27 M. Russell Thayer of Pennsylvania stated that â€œto avoid any misapprehensionâ€ as to what the â€œfundamental rights of citizenshipâ€ are, â€œthey are stated in the bill. The same section goes on to define with great particularity the civil rights and immunities which are to be protected by the bill.â€ And, he added, â€œwhen those civil rights which are first referred to in general terms [that is, civil rights and immunities] are subsequently enumerated, that enumeration precludes any possibility that the general words which have been used can be extended beyond the particulars which have been enumerated,â€ that the Bill was for â€œthe protection of the fundamental rights of citizenship and nothing else.â€Â 28 Wilson emphasized that the rights enumerated were no â€œgreater than the rights which are included in the general terms â€˜life, liberty, and property.â€™ â€Â 29 He did not proceed from the dictionary but responded to a sentiment unequivocally articulated by James W. Patterson of New Hampshire in a later discussion of the Fourteenth Amendment, for which he voted. I am opposed, he stated, â€œto any law discriminating against [blacks] in the security of life, liberty, person, property and the proceeds of their labor. These civil rights all should enjoy. Beyond this I am not prepared to go, and those pretended friends who urge political and social equality . . . are . . . the worst enemies of the colored race.â€Â 30
Such views had been expressed in the Senate by Trumbull, who drafted the Bill: â€œThe bill is applicable exclusively to civil rights. It does not propose to regulate political rights of individuals; it has nothing to do with the right of suffrage, or any other political right.â€Â 31Commenting onÂ Corfield v. Coryell, Trumbull stated that such cases had held that under the â€œprivileges and immunitiesâ€ of Article IV, Â§2, a citizen had â€œcertain great fundamental rights, such as the right to life, to liberty, and to avail oneself of all the laws passed for the benefit of the citizen to enable him to enforce his rights.â€ These were the rights with which the Civil Rights Bill would clothe the Negro.32
Suffrage, said Senator Jacob M. Howard in later explaining the Fourteenth Amendment, is not â€œone of the privileges and immunities thus secured by [Article IV, Â§2 of] the Constitutionâ€; it is not, said Senator William P. Fessenden of Maine, chairman of the Joint Committee on Reconstruction, a â€œnatural right.â€Â 33 Trumbull stated that the Bill â€œhas nothing to do with the right of suffrage, or any other political rights.â€Â 34 When Senator Willard Saulsbury, a Democrat of Delaware, sought specifically to except â€œthe right to vote,â€ Trumbull replied: â€œthat is a political privilege, not a civil right. This bill relates to civil rights only.â€Â 35 And he reiterated that the Bill â€œcarefully avoided conferring or interfering with political rights or privileges of any kind.â€Â 36 The views of Trumbull and Wilson were shared by fellow Republicans. The â€œonly effectâ€ of the Bill, said Senator Henderson, was to give the blacks the enumerated rights. â€œThese measures did not pretend to confer upon the negro the suffrage. They left each State to determine the question for itself.â€Â 37 Senator Sherman said the bill â€œdefines what are the incidents of freedom, and says that these men must be protected in certain rights, and so careful is its language that it goes on and defines those rights, the rights to sue and be sued [etc.] . . . and other universal incidents of freedom.â€Â 38 Thayer stressed that the bill did not â€œextend the right of suffrage,â€ that suffrage was not a â€œfundamental right.â€Â 39 That the purpose of the bill was toÂ prevent discrimination with respect to enumerated, fundamentalÂ not political or social rights, was also stated in one form or another by Cook and Moulton of Illinois, Hubbell, Lawrence, and Shellabarger of Ohio, and Windom of Minnesota.40
SinceÂ Corfield v. Coryell41 is cited on all hands, it will profit us to consider its bearing on the scope of â€œprivileges or immunities.â€ The actual holding was that the phrase did not confer on an out-of-state citizen the right to dredge for oysters in New Jersey waters. In passing, Justice Washington stated:
We feel no hesitation inÂ confining these expressions to those privileges and immunities which are, in their nature,Â fundamental . . . They may, however, be all comprehended under the following general heads: Protection by the government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind and to pursue and obtain happiness and safety . . . The right of a citizen of one state to pass through, or reside in any other state, for purposes of trade, agriculture, professional pursuits,42 or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the citizens of the other state; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental; to which may be added, the elective franchise,43 as regulated and established by the laws or constitution of the state in which it is to be exercised . . . But we cannot accede to the proposition . . . that the citizens of the several states are permitted to participateÂ in all the rights which belong exclusively to the citizens of any other particular state.
The last sentence alone militates against an â€œall-inclusiveâ€ reading ofÂ Corfield.44
In the main, these are the privileges and immunities enumerated in the Civil Rights Bill. Justice Washingtonâ€™s inclusion of the â€œelective franchise, â€ as Charles Fairman remarked, was â€œplainly wrong.â€Â 45 Article IV hardly intended to enable a transient migrant to vote, and this after excluding him from dredging for oysters. From the beginning, admission to suffrage had been the province of the State, as Chief Justice Parker of Massachusetts held at about the same time asÂ Corfield, being preceded by Judge Samuel Chase of Maryland.46Right or wrong, it was open to Congress to take a narrower view than that of Washington for purposes of the Act which the Fourteenth Amendment was to constitutionalize. Trumbull did just this, saying of Washington, â€œThis judge goes further than the billâ€ in including the â€œelective franchise.â€Â 47 Graham dwells on theÂ Corfield phrase â€œProtection by the government; the enjoyment of life and liberty . . . and to pursue and obtain happiness.â€Â 48 Here, too, the framers could choose to exclude protection for the â€œpursuit of happiness,â€ but in truth it was to Trumbullâ€™s mind a synonym for property: â€œthe great fundamental rights of life, liberty, and the pursuit of happiness.â€Â 49 And so it was read by Justice Bradley in theÂ Slaughter-House Cases: the rights â€œto life, liberty and the pursuit of happiness are equivalent to the rights of life, liberty and property.â€Â 50 At any rate, the â€œpursuit of happinessâ€ found no place in the Amendment; in its stead the framers substituted the bare word â€œproperty,â€ clinging to the traditional trinity: â€œlife, liberty, and property.â€
It remains to notice two earlier cases also cited in the debates. InÂ Campbell v. Morris (1797), Judge Chase, before long to be a Supreme Court Justice, stated on behalf of the General Court of Maryland that counsel were agreed
that a particular and limited operation is to be given to these words [privileges and immunities] and not a full and comprehensive one. It is agreed that it does not mean the right of election . . . The court are of opinion it means . . . the peculiar advantage of acquiring and holding real as well as personal property, that such property shall be protected and secured by the laws of the state, in the same manner as the property of the citizens of the state is protected. It means, such property shall not be liable to any taxes or burdens which the property of the citizens of the state is not subject to . . . It secures and protects personal rights.51
Mark that the emphasis is on freedom from discrimination, on equality with respect to described rights. In 1827, shortly afterÂ Corfield, Chief Justice Parker declared on behalf of the highest court of Massachusetts, inÂ Abbott v. Bayley, that the privileges and immunities phrase confers a â€œright to sue and be sued,â€ that citizens who remove to a second State â€œcannot enjoy the right of suffrage,â€ but â€œmay take and hold real estate.â€Â 52 Thus, long before 1866 courts had held that â€œprivileges and immunitiesâ€ were comprised of the rights Blackstone had enumerated; the framers, aware of Blackstone and the decisions, embodied those rights, and those rights only, in the Civil Rights Act of 1866.
That, however, is not the neoabolitionist reading of the history. So Alfred Kelly remarked, â€œTrumbull made it clear that his notion of the rights incidental to national citizenship wereÂ exceedingly comprehensive in character . . . Citing the dictum inÂ Corfield v. Coryell, he argued that the rights of national citizenship included all â€˜privileges which are in their nature fundamentalâ€™ . . . In short, he nationalized the comity clause [Article IV, Â§2] and turned it into a national bill of rights against the states, as the pre-war antislavery theorists had pretty generally done.â€Â 53 Such interpretations are poles removed from Trumbullâ€™s carefully restricted explanations. In the debates on the Civil Rights Bill, Trumbull made no mention of the Bill of Rights, but tied the â€œprivileges and immunitiesâ€ phrase to â€œcertain great fundamental rights such as the right to life, to liberty,â€ and the benefit of laws passed for the enforcement of those rights, explicitly excluding â€œpoliticalâ€ rights. His fellows even more clearly viewed the enumerated rights as restrictive.54 As the citations to Blackstone and Kent show, â€œfundamental,â€ â€œnaturalâ€ rights had become words of received meaning.55 TenBroek himself states that â€œthe area of disagreementâ€ about â€œprivileges and immunities was not large, since their natural rights foundation was generally acceptedâ€; they were â€œthe natural rights of all men or such auxiliary rights as were necessary to secure and maintain those natural rights. They were the rights to life, liberty, and property. They were the rights to contract, and to own, use and dispose of property.â€Â 56
Nevertheless, tenBroek remained fuzzy as to the meaning of â€œfundamentalâ€ rights as is shown by his citation to Senator Henderson. After noting Hendersonâ€™s explanation of the purpose of the Civil Rights Act, to give the rightsÂ therein enumerated (which he read into the record), and his reference to â€œthose fundamental rights of person and property which cannot be denied to any person,â€ tenBroek concludes: â€œThis was theÂ sweeping view of those who sponsored . . . the Fourteenth Amendment.57 Henderson, however, had emphasized that the â€œonly effectâ€ of the Civil Rights Bill was to give the blacks the rights there listed, that because the â€œnegro is the object of that unaccountable prejudice against raceâ€ the â€œcountry is not preparedâ€ to give them more.58
The Grahamâ€“tenBroekâ€“Kelly writings have muddied analysis; they are not true to the historical facts. Shortly restated, those facts are that the â€œfundamentalâ€ rights which the framers were anxious to secure were those described by Blackstoneâ€”personal security, freedom to move about and to own property; they had been picked up in the â€œprivileges and immunitiesâ€ of Article IV, Â§1; the incidental rights necessary for their protection were â€œenumeratedâ€ in the Civil Rights Act of 1866; that enumeration, according to the framers, marked the bounds of the grant; and at length those rights were embodied in the â€œprivileges or immunitiesâ€ of the Fourteenth Amendment. An argument to the contrary, it may be stated categorically, will find no solid ground in the debates of the 39th Congress.
Raoul Berger (1901 â€“ 2000) is a widely read and widely debated authority on the United States Constitution.Â Mr. Berger’s interpretation of the framers’ intentions thrilled liberals when he castigated President Richard M. Nixon’s assertions of executive privilege in an effort to keep information from Congress in the Watergate case and appalled them when he wrote that the Supreme Court had overstepped its authority in ordering the racial desegregation of the public schools.Â He wrote seven books and more than 100 articles covering such topics as impeachment, executive privilege, judicial review and the death penalty, thrusting himself to the center of the incessant and tortuous national debate on constitutional interpretations. He did it with a style that inspired the author Garry Wills in 1974 to speak of his ”exuberance of pugnacious learning.”
[1.]Act of April 9, 1866, ch. 21, 14 Stat. 27.
[2.]Edward S. Corwin, â€œThe â€˜Higher Lawâ€™ Background of American Constitutional Law,â€ 42 Harv. L. Rev. 149, 365, 383 (1928).
[3.]1 William Blackstone,Â Commentaries on the Laws of England 129, 134, 138 (1765â€“1769). These â€œrightsâ€ were read to the House by James F. Wilson, chairman of the House Judiciary Committee, in his exposition of the Civil Rights Bill.Â Globe 1118.
[4.]Documents of American History 83 (Henry Steele Commager ed. 7th ed. 1963).
[5.]1 James Kent,Â Commentaries on American Law 607 (9th ed. 1853): â€œThe absolute rights of individuals may be resolved into the right of personal security, the right of personal liberty, and the right to enjoy and acquire property.â€ This too was quoted by Wilson, supra note 3.
[6.]6 F. Cas. (No. 3230) 546 (C.C.E.D. Pa. 1823); the full quotation is set forth infra at notes 41â€“43.
[7.]TenBroek, 108, 110.
[8.]Globe 474â€“475, 1118, 2765.
[10.]Fairman, Stanford 44. It â€œwas in these debates,â€ said Alfred Kelly, that â€œthe Radical [?] ideas as to how far federal guarantees of civil rights as against state action might properly extend, both by legislation and by constitutional amendment, were first clearly set down. The debates on the Civil Rights Act are also important . . . because the Civil Rights Act bore an extremely close relationship to the passage of the Fourteenth Amendment itself.â€ Kelly, Fourteenth 1057.
[12.]Stevens, id. 2459; Kelly, Fourteenth 1071. Bingham strongly doubted the â€œpower of Congress to passâ€ the Civil Rights Bill and insisted upon proceeding by amendment, id. 1291â€“1292; his doubts were shared by Henry J. Raymond, id. 2502, presumably, as Senator Henderson explained, because the Thirteenth Amendment went no further than to free the slaves,Â Appendix to Globe 122 (hereinafterÂ Globe App.). John M. Broomall of Pennsylvania, Thomas D. Eliot of Massachusetts, and Senator James R. Doolittle of Wisconsin also thought it designed to remove constitutional doubts, id. 2498, 2511, 2896. Others like Stevens, James A. Garfield and Rufus P. Spalding of Ohio, and Senator Howard wanted to make the Act secure against repeal by a successor Congress, id. 2459, 2462, 2509, 2896. See also Henry Van Aernam of New York, id. 3069, Thayer, id. 2465. See also infra Chapter 6 at notes 18â€“19. For additional citations, see tenBroek 244 note 11.
[13.]Graham 291 note 73; Bickel 47; tenBroek 201, 203, 224; Benjamin Kendrick,Â The Journal of the Joint Committee of Fifteen on Reconstruction 350 (1914). Flack, a devotee of a broad construction of the Fourteenth Amendment, states, â€œnearly all said that it was butan incorporation of the Civil Rights Bill . . . there was no controversy as to its purpose and meaning.â€ Flack 81, id. 54, 79.
[14.]Section 1 of the Bill is set out inÂ Globe 474 (emphasis added); see also supra note 1. It was anticipated by the Missouri Constitution of 1865: â€œno person can, on account of color, be disqualified as a witness, or be disabled to contract otherwise than as others are disabled, or be prevented from acquiring . . . property, or be liable to any other punishment for any offense than that imposed upon others for a like offense . . . or be subjected in law, to any other restraints or qualifications in regard to any personal rights other than such as are laid upon others under like circumstances.â€ 2 Ben P. Poore,Â Federal and State Constitutions, Colonial Charters 1136 (1877).
â€œThe master class looked upon any offense as more reprehensible (and therefore subject to more severe penalties) when committed by a slave than when committed by a white man.â€ Kenneth M. Stampp,Â The Peculiar Institution 124 (Vintage Books, 1956).
[15.]Globe 42. In a letter to Sumner in 1865, Justin Morrill, soon to be Senator, doubtful whether his suggested words â€œcivil rights, immunities, privileges [have] such a precise and definite meaning as to be practicable,â€ asked â€œmust we specify, rights . . . to hold property, be a party and witness.â€ James 30.
A significant shift from the phraseology of the predecessor Freedmenâ€™s Bureau Bill was made in the Civil Rights Bill; the former referred to â€œcivil rights or immunities . . .Â including the right to make and enforce contracts,â€ etc., Bickel 8 (emphasis added); but the Civil Rights Bill phrase â€œno discrimination in civil rightsâ€ was deleted (see infra Chapter 7 at notes 11â€“15), leaving the provision that blacks should â€œhave the same right to make and enforce contracts,â€ etc., a specific and exclusive enumeration. See infra at notes 15â€“17.
[16.]Globe 1833 (emphasis added). Senator Sherman said the Bill â€œdefines what are the incidents of freedom.â€ Id. 744. A leading Republican, Samuel Shellabarger of Ohio, explained that â€œthose rights to contract, sue,â€ etc., are â€œnecessary . . . [for] the protection of the rights of person and property of a citizen.â€ Id. 1293.
[17.]Id. 1151; fully quoted infra note 39.
[18.]For citations to collections of the Codes, see Bickel 14 note 35.
[19.]Globe 603. The Codes, Wilson said, â€œPractically made slaves of men we have declared to be free.â€ Id. 39. They â€œset up elaborate systems of bound apprenticeship, labor restrictions, vagrancy laws, limits on property ownership and craft employment. They prescribed white supervision over almost every aspect of black lives . . . The bald declaration of Edmund Rhett of South Carolinaâ€” â€˜the general interest both of the white man and of the negroes requires that he should be kept as near to the condition of slavery as possibleâ€™ . . . â€”sums up the purpose of the Black Codes.â€ Morton Keller,Â Affairs of State 203â€“204 (1977).
[21.]Senator Sumner, id. 95; Senator Timothy Howe of Wisconsin, id. 443; Ignatius Donnelly, id. 588; Senator Daniel Clark, id. 833; Burton C. Cook, id. 1124; William Higby, id. 2882. See the Opelusa Ordinance, id. 516â€“517. Senator Clark stated, the Master â€œwill allow him no home, that he may become a vagrant. Becoming a vagrant, he will arrest him as a vagabond, and visit him with imprisonment and stripes . . . He will shut him off from the courts, seal his mouth as a witness.â€Â Globe 834. Cook stated, â€œVagrantlaws have been passed: laws which under the pretense of selling these men as vagrants, are calculated and intended to reduce them to slavery again.â€Â Globe 1123.
[22.]Senator Wilson, id. 603; Cook, id. 1123; James Wilson, â€œbarbaric and inhuman,â€ id. 1118.
[23.]Id. 631, 1159, 2773, 833. Whether the effects of the Black Codes were exaggerated or not is not nearly as important as the aversion to them; it â€œis incorporated by reference into congressional statements of objectives; it plays a large part in defining those objectives, regardless of the extent to which it was founded on reality and regardless of the motives which underlay its creation.â€ Bickel 14.
[25.]Id. 3172, 3174.
[26.]Id. 1117. Wilson quotedÂ Bouvierâ€™s Law Dictionary: â€œCivil rights are those which have no relation to the establishment, support, or management of government.â€ Id. Alfred Kelly states that Wilson â€œdeclared for a narrow interpretation of the measure in unequivocal terms.â€ Kelly, Fourteenth 1066. But at another point he states that Wilson asserted â€œÂ vaguely that civil rights were only the â€˜natural rights of man.â€™ â€ Id. (emphasis added). Such â€œvaguenessâ€ is dispelled by Thayerâ€™s explanation infra. See also infra note 55.
Josiah Grinnell of Iowa said, â€œA recognition of natural rights is one thing, a grant of political franchises quite another.â€ TenBroek 170. Senator Howard stated, the purpose of the Civil Rights Bill â€œis to secure to these men whom we have made free the ordinary rights of a freeman and nothing else.â€ Id. 504. â€œWilson thus presented the Civil Rights Bill to the House as a measure of limited and definite objectives. In this he followed the lead of the majority in the Senate . . . And the line he laid down was followed by others who spoke for the bill in the House.â€ Bickel 17.
[28.]Id. 1151. As Madison said in Federalist No. 41: â€œFor what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general powers? Nothing is more natural or common than first to use a general phrase, and to explain and qualify it by a recital of particulars. But the idea of particulars which neither explain nor qualify the general meaning . . . is an absurdity.â€ Modern Lib. ed. 269 (1937). Lawrence, an Ohio Radical, said â€œthe privileges referred to in the Constitution are such as are fundamental civil rights, not political rights nor those dependent on local law.â€Â Globe 1836.
[29.]Globe 1295. While tenBroek, 110, defines privileges and immunities as the right of a citizen to have â€œprotection in the enjoyment of his personal security, personal liberty, and private property . . . protection against the aggression of individuals, communities . . . and domestic states against lawless violence exercised under the form of governmental authority,â€ and while Graham, 236, states the â€œabolitionist positionâ€ was to seek â€œprotection for the fundamental rights of life, liberty, and property,â€ neither is really cognizant of the fact that the Civil Rights Act, and hence the â€œconstitutionalizingâ€ Fourteenth Amendment, had enumerated and defined these rights in restricted terms. I would also, therefore, take exception to Fairmanâ€™s statement that â€œvague aspirationsâ€ were hung on â€œprivileges or immunities.â€ Fairman, Stanford 139.
[30.]Globe 2699. Patterson voted for the Amendment, id. 2545. Windom said that under the Civil Rights Bill, the Negro â€œshall have an equal right, nothing more . . . to make and enforce contractsâ€ and so on. â€œIt does not . . . confer the privilege of voting,â€ nor â€œsocial privileges. It merely provides safeguards to shield them from wrong and outrage and to protect them in the enjoyment of . . . the right to exist.â€ Id. 1159. [On January 25, 1858, Senator Lyman Trumbull stated, â€œI have never contended for giving the negro equal privileges with the white man. That is a doctrine I do not advocate.â€Â The Reconstruction Amendmentsâ€™ Debates 13 (Alfred Avins ed. 1967).]
[31.]Globe 599. As a prelude to the overriding of Johnsonâ€™s veto, Trumbull stated, â€œthe granting of civil rights does not . . . carry with it . . . political privileges . . . The right to vote . . . depends on the legislation of the various States.â€ Id. 1757. He identified the rights â€œdefinedâ€ in Â§1 as â€œfundamental rights belonging to every man as a free man.â€ Id. 476. Bickel, 13, states that â€œRadicals and Moderates alikeâ€”who spoke in favor of the bill were content to rest on the points Trumbull had made. The rights to be secured by the bill were those specifically enumerated in section 1.â€
[32.]Globe 600, 474â€“475. Senator Henderson said that the Civil Rights Bill was â€œsimply to carry out the provisions of the Constitution which confers upon the citizens of each State the privileges and immunities of citizens in the several States.â€ Id. 3035. As Lawrence stated, â€œIt is idle to say that a citizen shall have the right to life, yet to deny him the right to labor, whereby alone he can live. It is a mockery to say that a citizen may have a right to live, and yet deny him the right to make a contract to secure the privilege and rewards of labor.â€ Id. 1833.
[33.]Id. 2766, 704.
[39.]Id. 1151: â€œthe words themselves are â€˜civil rights and immunities,â€™ not political privileges; and nobody can successfully contend that a bill guarantying simply civil rights and immunities is a bill under which you extend the right of suffrage, which is a political privilege and not a civil right . . . [W]hen those civil rights which are first referred to in general terms are subsequently enumerated, that enumeration precludes any possibility that general words which have been used can be extended beyond the particulars which have been enumerated.â€
[40.]Cook, id. 1124; Moulton, id. 632; James R. Hubbell, id. 662; Lawrence, id. 1836; Shellabarger, id. 1293; for Windom, id. 1159, see supra note 30. Further details on the rejection of Negro suffrage are hereinafter set forth in the discussion of suffrage and the Fourteenth Amendment.
[41.]6 F. Cas. at 551â€“552.
[42.]Emphasis added. Here Justice Washington spoke too loosely. If a State might deny a nonresident the privilege to dredge for oysters in its waters, all the more might it deny him the right to practice law in its courts. Bradwell v. State, 38 U.S. (16 Wall.) 130, 139 (1872) held that â€œthe right to admission to practice in the courts of a Stateâ€ is not a privilege of a United States citizen.
[43.]The Supreme Court rejected this notion in Minor v. Happersett, 88 U.S. (21 Wall.) 162, 174 (1874): â€œThis is more than asserting that [citizens] may change their residence and become citizens of the State and thus be voters. It goes to the extent that while retaining their original citizenship they may vote in any State.â€ It must be borne in mind that Article IV, Â§2, applies to transient as well as permanent migrants.
[44.]Emphasis added. That last sentence is at odds with Alfred Kellyâ€™s statement that in the Corfield case â€œthe rights incidental to national citizenship had been described inÂ all-inclusive terms under the comity clause [Article IV, Â§2].â€ Kelly, Fourteenth 1059 (emphasis added).
[45.]Charles Fairman,Â Reconstruction and Reunion, 1864â€“1888 1122, vol. 6, pt. 1, ofÂ History of the Supreme Court of the United States (1971); see supra note 3.
[46.]Abbott v. Bayley, 6 Pick. 89, 91 (Mass. 1827); Campbell v. Morris, 3 H. & McH. 535, 554 (Md. 1797).
[47.]Globe 475; see Senator Howard, supra at note 33.
[50.]83 U.S. (16 Wall.) 36, 116 (1872), dissenting opinion.
[51.]Supra note 46.
[52.]Supra note 46. The Abbott and Campbell cases were quoted by Senator Trumbull,Â Globe 474, and at other points in the debates.
[53.]Kelly, Fourteenth 1062â€“1063, emphasis added. So too, Kelly reads Binghamâ€™s statement that â€œthe protection given by the laws of the States shall be equalÂ in respect to life, liberty, and property to all personsâ€ as meaning â€œa very general requirement of equality on all state legislation of the most inclusive kindâ€ (emphasis added). Id. 1074. There is also the fact that Bingham obtained the deletion of the â€œno discrimination in civil rightsâ€ clause because it was â€œoppressive.â€ Infra Chapter 7 at notes 13â€“14.
[54.]Supra at notes 31â€“32, 36â€“38, 26â€“30.
[55.]In his 1965 article Kelly himself stated, â€œUltimately Revolutionary natural-rights theorists insisted liberty was derived from a state of nature, but it had long before been given a very positive and specific content. It was to be found . . . above all in the common law as expounded by Coke and Blackstone in all their commentaries. The â€˜rights of Englishmenâ€™ were not vacuous; instead they were quite well developed and specific. The notion of pulling new natural rights from the air to allow for an indefinite expansion can hardly be considered to be within the original spirit of the amendment.â€ Kelly, â€œClio and the Court: An Illicit Love Affair,â€ 1965 S. Ct. Rev. 119, 154â€“155. They had been crystallized by Blackstone, supra note 3. Madison, for example, stated in the First Congress that â€œTrial by jury cannot be considered . . . as a natural right.â€ 1Â Annals of Congress 437.
[56.]TenBroek 122â€“123, 236.
[57.]Id. 231â€“232 (emphasis added).
[58.]Globe 3034, 3035. Like tenBroek, Graham, 276, stated that â€œthe evidence in the debates is overwhelming that racial discriminationÂ very broadly conceived was the framersâ€™ targetâ€ (emphasis added). Compare his statement infra Chapter 7 at note 41.