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Introduction to Individual Rights

    The Thirteenth Amendment, which abolished slavery, had been ratified in 1865, but it was evident (and believed to be evident) that the institution of slavery was being replaced by a system that was designed to keep the former slaves in a condition of virtual servitude. The Black Codes, enacted by most of the southern states, severely restricted the civil rights of former slaves, including the rights to enter into contracts, to purchase property, and to sit on juries. In addition, there was evidence that former slaves were not being given full and impartial protection of otherwise neutral laws. Both formally and informally the former slaves were being treated as noncitizens.

    In response to these conditions, Congress passed the Civil Rights Act of 1866, 14 Stat. 27, which provided in pertinent part:

    That all persons born in the United States and not subject to any foreign power … are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, … shall have the same right, in every State and Territory in the United States, 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, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other. …

    President Andrew Johnson had vetoed the Civil Rights bill on the ground that it was unconstitutional, and though Congress overrode the veto, a number of Republicans who supported the measure were concerned that the act exceeded the enumerated powers of Congress. This concern provided the initial impetus for the Fourteenth Amendment. One of the primary purposes of that Amendment was to ensure that Congress possessed the power to enact legislation such as the Civil Rights Act of 1866. Section 5 of the Fourteenth Amendment does precisely that. It grants Congress the power to enforce the provisions of the Fourteenth Amendment, including the so-called substantive provisions of §1 described above. See §1.5.

    Proponents of the Fourteenth Amendment, therefore, probably understood §1’s Privileges or Immunities Clause as encompassing the “civil rights or immunities” described in the Civil Rights Act of 1866. Those rights are remarkably similar to the fundamental rights associated with Article IV’s Privileges and Immunities Clause, and like that clause, the Civil Rights Act prohibited discriminatory treatment of citizens exercising those rights. If this interpretation is correct, one purpose of the Fourteenth Amendment’s Privileges or Immunities Clause was to prevent states from denying U.S. citizens, as defined in the first sentence of §1, the equal exercise of those fundamental civil rights and immunities described in the Civil Rights Act.

    The legislative history of the Fourteenth Amendment supports this interpretation. That history is replete with cross-references to the Civil Rights Act, suggesting a close affinity between the act and the proposed Amendment. This interpretation also comports with the notion that Congress, through the Fourteenth Amendment, was attempting to construct a constitutional provision that would validate the prior enactment. In fact, immediately after the adoption of the Fourteenth Amendment, the Civil Rights Act of 1866 was reenacted as an enforcement of §1 rights.

    A second strand of history suggests that the Privileges or Immunities Clause may have been intended to have an even wider application. The Court, in Barron v. Mayor & City Council of Baltimore, 32 U.S. (7 Pet.) 243 (1833), held that the Bill of Rights limits only the power of the federal government and not the power of the states. Prior to the Civil War, abolitionists rejected the soundness of Barron. For a variety of reasons, they believed that the first eight amendments to the Constitution either were or should be fully applicable against the states. This view was shared by a number of Republicans, many of them former abolitionists, who participated in the drafting and passage of the Fourteenth Amendment. Moreover, even those Republicans who did not expressly subscribe to the complete incorporation theory probably thought that the Privileges or Immunities Clause protected at least some additional fundamental rights beyond those listed in the Civil Rights Act of 1866. For example, the freedoms of press and speech were widely accepted as being fundamental rights held by all U.S. citizens. One cannot say definitively, however, that the purpose of the Privileges or Immunities Clause was to incorporate all or part of the first eight amendments. The surrounding history is certainly consistent with that possibility, but the available information is far from dispositive. See Raoul Berger, Government by Judiciary (1977) (arguing that the first eight amendments of the Bill of Rights were not incorporated against the states via the Privileges or Immunities Clause); Michael Curtis, No State Shall Abridge (1986) (arguing precisely the opposite). Here, we are left with an ambiguous record and an indeterminate meaning.

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