by Raoul Berger

EDITOR’S NOTE: The following is an excerpt of the book Government by Judiciary: The Transformation of the Fourteenth Amendment, Foreword by Forrest McDonald (2nd ed.) (Indianapolis: Liberty Fund, 1997).

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No State shall . . . abridge the privileges or immunities of citizens of the United States

The “privileges or immunities” clause was the central provision of the Amendment’s §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 “life, liberty, and property” —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 “fundamental rights,” “life, liberty, and property,” and a few historical comments will show the ties between the two.

At Locke’s hands, said Edward S. Corwin, natural law dissolves “into the rights of ‘life, liberty, and estate,’ ” a derivation noted by Francis Bacon. The trinity was reiterated by Sir Matthew Hale2 and sharply etched by Blackstone in his chapter on “The Absolute Rights of Individuals”:

these may be reduced to three principal or primary articles . . . I. The right of personal security [consisting] in a person’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 one’s person to whatsoever place one’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 “due course of law” and the “laws of the land” did not enlarge, they did not add to, the “absolute rights” of an Englishman, but rather marked the sole means whereby those rights might be diminished. These “absolute,” “fundamental” rights of “life, liberty, and property” 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 “by the immutable laws of nature, the principles of the British Constitution . . . ‘are entitled to life, liberty, and property.” 4 Blackstone, whose work was widely circulated in the Colonies, was cited in Federalist No. 84 and paraphrased by Kent.5 Instead of the “absolute rights” of “life, liberty, and property” the Framers resorted to the terminology of Article IV, §2: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” These words were construed “confiningly” by Justice Bushrod Washington on circuit, in Corfield v. Coryell, as comprising “fundamental” rights such as freedom of movement, freedom from discriminatory taxes and impositions, ownership of property, access to the courts.6

For the “principal spokesmen” and theorists of the abolitionist movement, Lysander Spooner and Joel Tiffany, “privileges and immunities” meant that a citizen has a right “to full and ample protection in the enjoyment of his personal security, personal liberty, and private property . . . protection against oppression . . . against lawless violence.” 7 This echoes Blackstone’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, and Coryell, as did others.8 And John A. Bingham, draftsman of the Amendment, stated that he had drawn the “privileges or immunities” clause of the Fourteenth Amendment from Article IV, §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, “over 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.” 10 George R. Latham of West Virginia, for example, stated that “the ‘civil rights bill’ which is now a law . . . covers exactly the same ground as this amendment.” 11 In fact, the Amendment was designed to “ constitutionalize ” the Act,12 that is, to “embody” 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 “virtually every speaker in the debates on the Fourteenth Amendment—Republican and Democrat alike—said or agreed that the Amendment was designed to embody or incorporate the Civil Rights Act.” 13

Section 1 of the Civil Rights Bill provided in pertinent part,

That there shall be no discrimination in civil rights or immunities . . . on account of race . . . but the inhabitants of every race . . . shall have the 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 and equal benefit of all laws and proceedings for the security of person and property, and shall be subject to 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, “naming them, defining precisely what they should be.” 15 Shortly stated, freedmen were to have the same 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 “ necessary incidents of these absolute rights,” that is, of “life, liberty, and property,” lacking which those “fundamental rights” could not be enjoyed.16 It was these “enumerated rights,” “stated in the bill,” said Martin Thayer of Pennsylvania, that were “the fundamental rights of citizenship.” 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 “nearly as iniquitous as the old slave codes.” 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 “the purpose of the bill . . . is to destroy all these discriminations.” 20 References to the Black Codes stud the debates:21 they were described as “atrocious” and “malignant.” 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 “damnable violence,” “wrong and outrage,” “fiendish oppression,” “barbarous cruelties.” 23 As Senator John B. Henderson, a Republican from Missouri, stated, “though nominally free, so far as discriminating legislation could make him [the black] so he was yet a slave.” 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 “civil rights and immunities,” 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 “The right of personal security, the right of personal liberty, and the right to acquire and enjoy property.”

quoting Chancellor Kent.26 Of “immunities” Wilson said that a black should “not 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.” 27 M. Russell Thayer of Pennsylvania stated that “to avoid any misapprehension” as to what the “fundamental rights of citizenship” are, “they 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.” And, he added, “when 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,” that the Bill was for “the protection of the fundamental rights of citizenship and nothing else.” 28 Wilson emphasized that the rights enumerated were no “greater than the rights which are included in the general terms ‘life, liberty, and property.’ ” 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, “to 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.” 30

Such views had been expressed in the Senate by Trumbull, who drafted the Bill: “The 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.” 31Commenting on Corfield v. Coryell, Trumbull stated that such cases had held that under the “privileges and immunities” of Article IV, §2, a citizen had “certain 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.” 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 “one of the privileges and immunities thus secured by [Article IV, §2 of] the Constitution”; it is not, said Senator William P. Fessenden of Maine, chairman of the Joint Committee on Reconstruction, a “natural right.” 33 Trumbull stated that the Bill “has nothing to do with the right of suffrage, or any other political rights.” 34 When Senator Willard Saulsbury, a Democrat of Delaware, sought specifically to except “the right to vote,” Trumbull replied: “that is a political privilege, not a civil right. This bill relates to civil rights only.” 35 And he reiterated that the Bill “carefully avoided conferring or interfering with political rights or privileges of any kind.” 36 The views of Trumbull and Wilson were shared by fellow Republicans. The “only effect” of the Bill, said Senator Henderson, was to give the blacks the enumerated rights. “These measures did not pretend to confer upon the negro the suffrage. They left each State to determine the question for itself.” 37 Senator Sherman said the bill “defines 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.” 38 Thayer stressed that the bill did not “extend the right of suffrage,” that suffrage was not a “fundamental right.” 39 That the purpose of the bill was to prevent discrimination with respect to enumerated, fundamental 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

Since Corfield v. Coryell41 is cited on all hands, it will profit us to consider its bearing on the scope of “privileges or immunities.” 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 in confining these expressions to those privileges and immunities which are, in their nature, 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 participate in all the rights which belong exclusively to the citizens of any other particular state.

The last sentence alone militates against an “all-inclusive” reading of Corfield.44

In the main, these are the privileges and immunities enumerated in the Civil Rights Bill. Justice Washington’s inclusion of the “elective franchise, ” as Charles Fairman remarked, was “plainly wrong.” 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 as 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, “This judge goes further than the bill” in including the “elective franchise.” 47 Graham dwells on the Corfield phrase “Protection by the government; the enjoyment of life and liberty . . . and to pursue and obtain happiness.” 48 Here, too, the framers could choose to exclude protection for the “pursuit of happiness,” but in truth it was to Trumbull’s mind a synonym for property: “the great fundamental rights of life, liberty, and the pursuit of happiness.” 49 And so it was read by Justice Bradley in the Slaughter-House Cases: the rights “to life, liberty and the pursuit of happiness are equivalent to the rights of life, liberty and property.” 50 At any rate, the “pursuit of happiness” found no place in the Amendment; in its stead the framers substituted the bare word “property,” clinging to the traditional trinity: “life, liberty, and property.”

It remains to notice two earlier cases also cited in the debates. In 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 after Corfield, Chief Justice Parker declared on behalf of the highest court of Massachusetts, in Abbott v. Bayley, that the privileges and immunities phrase confers a “right to sue and be sued,” that citizens who remove to a second State “cannot enjoy the right of suffrage,” but “may take and hold real estate.” 52 Thus, long before 1866 courts had held that “privileges and immunities” 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, “Trumbull made it clear that his notion of the rights incidental to national citizenship were exceedingly comprehensive in character . . . Citing the dictum in Corfield v. Coryell, he argued that the rights of national citizenship included all ‘privileges which are in their nature fundamental’ . . . In short, he nationalized the comity clause [Article IV, §2] and turned it into a national bill of rights against the states, as the pre-war antislavery theorists had pretty generally done.” 53 Such interpretations are poles removed from Trumbull’s carefully restricted explanations. In the debates on the Civil Rights Bill, Trumbull made no mention of the Bill of Rights, but tied the “privileges and immunities” phrase to “certain great fundamental rights such as the right to life, to liberty,” and the benefit of laws passed for the enforcement of those rights, explicitly excluding “political” rights. His fellows even more clearly viewed the enumerated rights as restrictive.54 As the citations to Blackstone and Kent show, “fundamental,” “natural” rights had become words of received meaning.55 TenBroek himself states that “the area of disagreement” about “privileges and immunities was not large, since their natural rights foundation was generally accepted”; they were “the 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.” 56

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Nevertheless, tenBroek remained fuzzy as to the meaning of “fundamental” rights as is shown by his citation to Senator Henderson. After noting Henderson’s explanation of the purpose of the Civil Rights Act, to give the rights therein enumerated (which he read into the record), and his reference to “those fundamental rights of person and property which cannot be denied to any person,” tenBroek concludes: “This was the sweeping view of those who sponsored . . . the Fourteenth Amendment.57 Henderson, however, had emphasized that the “only effect” of the Civil Rights Bill was to give the blacks the rights there listed, that because the “negro is the object of that unaccountable prejudice against race” the “country is not prepared” to give them more.58

The Graham–tenBroek–Kelly writings have muddied analysis; they are not true to the historical facts. Shortly restated, those facts are that the “fundamental” rights which the framers were anxious to secure were those described by Blackstone—personal security, freedom to move about and to own property; they had been picked up in the “privileges and immunities” of Article IV, §1; the incidental rights necessary for their protection were “enumerated” 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 “privileges or immunities” 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 – 2000) is a widely read and widely debated authority on the United States Constitution. 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. 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.”

NOTES

[1.]Act of April 9, 1866, ch. 21, 14 Stat. 27.

[2.]Edward S. Corwin, “The ‘Higher Law’ Background of American Constitutional Law,” 42 Harv. L. Rev. 149, 365, 383 (1928).

[3.]1 William Blackstone, Commentaries on the Laws of England 129, 134, 138 (1765–1769). These “rights” were read to the House by James F. Wilson, chairman of the House Judiciary Committee, in his exposition of the Civil Rights Bill. Globe 1118.

[4.]Documents of American History 83 (Henry Steele Commager ed. 7th ed. 1963).

[5.]1 James Kent, Commentaries on American Law 607 (9th ed. 1853): “The 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.” 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 41–43.

[7.]TenBroek, 108, 110.

[8.]Globe 474–475, 1118, 2765.

[9.]Id. 1034.

[10.]Fairman, Stanford 44. It “was in these debates,” said Alfred Kelly, that “the 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.” Kelly, Fourteenth 1057.

[11.]Globe 2883.

[12.]Stevens, id. 2459; Kelly, Fourteenth 1071. Bingham strongly doubted the “power of Congress to pass” the Civil Rights Bill and insisted upon proceeding by amendment, id. 1291–1292; 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, Appendix to Globe 122 (hereinafter 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 18–19. For additional citations, see tenBroek 244 note 11.

[13.]Graham 291 note 73; Bickel 47; tenBroek 201, 203, 224; Benjamin Kendrick, The Journal of the Joint Committee of Fifteen on Reconstruction 350 (1914). Flack, a devotee of a broad construction of the Fourteenth Amendment, states, “nearly all said that it was butan incorporation of the Civil Rights Bill . . . there was no controversy as to its purpose and meaning.” Flack 81, id. 54, 79.

[14.]Section 1 of the Bill is set out in Globe 474 (emphasis added); see also supra note 1. It was anticipated by the Missouri Constitution of 1865: “no 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.” 2 Ben P. Poore, Federal and State Constitutions, Colonial Charters 1136 (1877).

“The 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.” Kenneth M. Stampp, 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 “civil rights, immunities, privileges [have] such a precise and definite meaning as to be practicable,” asked “must we specify, rights . . . to hold property, be a party and witness.” James 30.

A significant shift from the phraseology of the predecessor Freedmen’s Bureau Bill was made in the Civil Rights Bill; the former referred to “civil rights or immunities . . . including the right to make and enforce contracts,” etc., Bickel 8 (emphasis added); but the Civil Rights Bill phrase “no discrimination in civil rights” was deleted (see infra Chapter 7 at notes 11–15), leaving the provision that blacks should “have the same right to make and enforce contracts,” etc., a specific and exclusive enumeration. See infra at notes 15–17.

[16.]Globe 1833 (emphasis added). Senator Sherman said the Bill “defines what are the incidents of freedom.” Id. 744. A leading Republican, Samuel Shellabarger of Ohio, explained that “those rights to contract, sue,” etc., are “necessary . . . [for] the protection of the rights of person and property of a citizen.” 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, “Practically made slaves of men we have declared to be free.” Id. 39. They “set 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 Carolina— ‘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 possible’ . . . —sums up the purpose of the Black Codes.” Morton Keller, Affairs of State 203–204 (1977).

[20.]Globe 474.

[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. 516–517. Senator Clark stated, the Master “will 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.” Globe 834. Cook stated, “Vagrantlaws have been passed: laws which under the pretense of selling these men as vagrants, are calculated and intended to reduce them to slavery again.” Globe 1123.

[22.]Senator Wilson, id. 603; Cook, id. 1123; James Wilson, “barbaric and inhuman,” 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 “is 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.” Bickel 14.

[24.]Globe 3034.

[25.]Id. 3172, 3174.

[26.]Id. 1117. Wilson quoted Bouvier’s Law Dictionary: “Civil rights are those which have no relation to the establishment, support, or management of government.” Id. Alfred Kelly states that Wilson “declared for a narrow interpretation of the measure in unequivocal terms.” Kelly, Fourteenth 1066. But at another point he states that Wilson asserted “ vaguely that civil rights were only the ‘natural rights of man.’ ” Id. (emphasis added). Such “vagueness” is dispelled by Thayer’s explanation infra. See also infra note 55.

Josiah Grinnell of Iowa said, “A recognition of natural rights is one thing, a grant of political franchises quite another.” TenBroek 170. Senator Howard stated, the purpose of the Civil Rights Bill “is to secure to these men whom we have made free the ordinary rights of a freeman and nothing else.” Id. 504. “Wilson 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.” Bickel 17.

[27.]Globe 1117.

[28.]Id. 1151. As Madison said in Federalist No. 41: “For 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.” Modern Lib. ed. 269 (1937). Lawrence, an Ohio Radical, said “the privileges referred to in the Constitution are such as are fundamental civil rights, not political rights nor those dependent on local law.” Globe 1836.

[29.]Globe 1295. While tenBroek, 110, defines privileges and immunities as the right of a citizen to have “protection 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,” and while Graham, 236, states the “abolitionist position” was to seek “protection for the fundamental rights of life, liberty, and property,” neither is really cognizant of the fact that the Civil Rights Act, and hence the “constitutionalizing” Fourteenth Amendment, had enumerated and defined these rights in restricted terms. I would also, therefore, take exception to Fairman’s statement that “vague aspirations” were hung on “privileges or immunities.” Fairman, Stanford 139.

[30.]Globe 2699. Patterson voted for the Amendment, id. 2545. Windom said that under the Civil Rights Bill, the Negro “shall have an equal right, nothing more . . . to make and enforce contracts” and so on. “It does not . . . confer the privilege of voting,” nor “social privileges. It merely provides safeguards to shield them from wrong and outrage and to protect them in the enjoyment of . . . the right to exist.” Id. 1159. [On January 25, 1858, Senator Lyman Trumbull stated, “I have never contended for giving the negro equal privileges with the white man. That is a doctrine I do not advocate.” The Reconstruction Amendments’ Debates 13 (Alfred Avins ed. 1967).]

[31.]Globe 599. As a prelude to the overriding of Johnson’s veto, Trumbull stated, “the granting of civil rights does not . . . carry with it . . . political privileges . . . The right to vote . . . depends on the legislation of the various States.” Id. 1757. He identified the rights “defined” in §1 as “fundamental rights belonging to every man as a free man.” Id. 476. Bickel, 13, states that “Radicals and Moderates alike—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.”

[32.]Globe 600, 474–475. Senator Henderson said that the Civil Rights Bill was “simply 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.” Id. 3035. As Lawrence stated, “It 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.” Id. 1833.

[33.]Id. 2766, 704.

[34.]Id. 599.

[35.]Id. 606.

[36.]Id. 1760.

[37.]Id. 3034–3035.

[38.]Id. 744.

[39.]Id. 1151: “the words themselves are ‘civil rights and immunities,’ 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.”

[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 551–552.

[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 “the right to admission to practice in the courts of a State” 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): “This 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.” It must be borne in mind that Article IV, §2, applies to transient as well as permanent migrants.

[44.]Emphasis added. That last sentence is at odds with Alfred Kelly’s statement that in the Corfield case “the rights incidental to national citizenship had been described in all-inclusive terms under the comity clause [Article IV, §2].” Kelly, Fourteenth 1059 (emphasis added).

[45.]Charles Fairman, Reconstruction and Reunion, 1864–1888 1122, vol. 6, pt. 1, of 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.

[48.]Graham 332n.

[49.]Globe 475.

[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, Globe 474, and at other points in the debates.

[53.]Kelly, Fourteenth 1062–1063, emphasis added. So too, Kelly reads Bingham’s statement that “the protection given by the laws of the States shall be equal in respect to life, liberty, and property to all persons” as meaning “a very general requirement of equality on all state legislation of the most inclusive kind” (emphasis added). Id. 1074. There is also the fact that Bingham obtained the deletion of the “no discrimination in civil rights” clause because it was “oppressive.” Infra Chapter 7 at notes 13–14.

[54.]Supra at notes 31–32, 36–38, 26–30.

[55.]In his 1965 article Kelly himself stated, “Ultimately 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 ‘rights of Englishmen’ 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.” Kelly, “Clio and the Court: An Illicit Love Affair,” 1965 S. Ct. Rev. 119, 154–155. They had been crystallized by Blackstone, supra note 3. Madison, for example, stated in the First Congress that “Trial by jury cannot be considered . . . as a natural right.” 1 Annals of Congress 437.

[56.]TenBroek 122–123, 236.

[57.]Id. 231–232 (emphasis added).

[58.]Globe 3034, 3035. Like tenBroek, Graham, 276, stated that “the evidence in the debates is overwhelming that racial discrimination very broadly conceived was the framers’ target” (emphasis added). Compare his statement infra Chapter 7 at note 41.