Despite modern Supreme Court restrictions on Congress’s power to enforce the Fourteenth Amendment - most notably in City of Boerne v. Just as the Civil Rights Act of 1866 enumerated attributes of citizenship and protected them from state discrimination, the 1866 Congress thought the Fourteenth Amendment would confirm its authority to articulate attributes of citizenship and prevent states from granting or withholding those privileges unequally - even if they were solidly within core state functions. The Privileges or Immunities Clause was understood as empowering Congress, not just courts, to itemize particular rights as subject to federal protection. This Note suggests that in the eighteenth and nineteenth centuries, privileges and immunities were widely understood as the products of legislation, to be defined by courts and legislatures. Much less attention has been dedicated to determining the appropriate detective - is it even up to courts to determine what the “privileges or immunities of citizens” are in the first place? 665, 693 n.127 (“The overwhelming weight of historical and scholarly opinion is that Slaughter-House was wrong in this regard.”) see also, e.g., Michael Kent Curtis, No State Shall Abridge 175–76 (1986) Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 Yale L.J. McConnell, The Right to Die and the Jurisprudence of Tradition, 1997 Utah L. for arriving at yet another suspect: benefits that require federal citizenship for their protection, such as the right to use navigable waters, travel, or seek protection overseas. Both groups criticize nineteenth-century judicial interpretations, such as the Slaughter-House Cases, 14 × 14. Black, Jr., A New Birth of Freedom 74–75 (1997) Akhil Reed Amar, Substance and Method in the Year 2000, 28 Pepp. Natelson, The Original Meaning of the Privileges and Immunities Clause, 43 Ga. See, e.g., John Harrison, Reconstructing the Privileges or Immunities Clause, 101 Yale L.J. Others suggest “privileges or immunities” refer to protections granted by positive law, either by state law 12 × 12. Smith, Natural Law, Article IV, and Section One of the Fourteenth Amendment, 47 Am.
Muench, The Ideological Origins of the Fourteenth Amendment, 1 Const.
Siegan, The Supreme Court’s Constitution 46–71 (1987) Daniel A. suggest “privileges or immunities” refer to so-called natural rights, such as property ownership. Some scholars, echoing antebellum judicial opinions, 10 × 10. Much scholarly and judicial attention has been dedicated to deciphering the Privileges or Immunities Clause of the Fourteenth Amendment, which states: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” 9 × 9. Bingham was so persistent that even after the Act’s passage, he introduced his constitutional amendment again - this time as the first and fifth sections of what would become the Fourteenth Amendment.
Opponents of the Civil Rights Act, including Bingham, argued that Congress had no constitutional power to interfere with these state-law “privileges and immunities.” 7 × 7. That statute not only made all persons born in the United States citizens, but also prohibited state governments from discriminating against “such citizens” with regard to their right to contract, sue, testify, hold property, or receive the “full and equal benefit of all laws.” 6 × 6. Indeed, later that year and without the firepower of Bingham’s amendment, Congress passed the Civil Rights Act of 1866. William Higby) (“When we read this proposed amendment we will think it already embraced in the Constitution . . . .”). The House rejected the amendment as unneeded, however, because even its supporters believed Congress already possessed the power it supposedly conferred. The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States, and to all persons in the several States equal protection in the rights of life, liberty, and property. Bingham announced that his amendment would “arm the Congress . . . with the power to enforce the bill of rights” and require state governments to respect the privileges and immunities of citizens of the United States on equal terms.
In 1866, months after the end of the Civil War and the ratification of the Thirteenth Amendment, Congressman John Bingham introduced a new constitutional amendment to the floor of the House of Representatives.
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