The 1866 Civil Rights Act and the Original Meaning of the 1868 Due Process Clause

Abstract

Legal scholars have long assumed that the 1866 Civil Rights Act protected rights uniquely associated with national citizenship. Accordingly, most scholars assume that the Fourteenth Amendment’s citizenship-based Privileges or Immunities Clause provided after-the-fact authority for the 1866 Civil Rights Act. A close look at the original sources, however, reveals that key players in the Thirty-Ninth Congress viewed the Civil Rights Act as protecting rights associated with the Fifth Amendment’s Due Process Clause. The man who drafted Section One of the Fourteenth Amendment, John Bingham, expressly viewed the Civil Rights Act as protecting the natural and equal right to due process in matters relating to life, liberty and property. Bingham opposed the Civil Rights Act, however, because he believed an amendment must first be adopted granting Congress power to enforce the equal rights of due process. Following the ratification of the Fourteenth Amendment, Congress (now with Bingham’s support) repassed the Civil Rights Act and extended the majority of its protections to “all persons” — an extension authorized by the “all persons” Due Process Clause but not by the “citizens only” Privileges or Immunities Clause. Understanding the original link between the 1866 Civil Rights Act and the 1868 Due Process Clause requires rethinking a number of commonly accepted assumptions about the original Fourteenth Amendment. Much of the current Supreme Court’s “equal laws” doctrine may be supported by the original meaning of the Due Process Clause, while the Equal Protection Clause itself may communicate an altogether different principle of “equal protection.” Disentangling the Privileges or Immunities Clause from the Civil Rights Act also supports reading the Privileges or Immunities Clause as protecting the nationally enumerated rights of citizenship and not the unenumerated subjects of state-level civil rights now covered by the Due Process and Equal Protection Clauses.