For more than a century, legal scholars have looked to the 1866 Civil Rights Act for clues regarding the original meaning of the Fourteenth Amendment. Because the 1866 version of the Act protected only citizens of the United States, most scholars believe that the Act should be used as a guide to understanding the Fourteenth Amendment’s citizenship-based Privileges or Immunities Clause. A close look at the original sources, however, reveals that the 1866 Civil Rights Act protected rights then associated with the requirements of due process. The man who drafted Section One of the Fourteenth Amendment, John Bingham, expressly described the 1866 Civil Rights Act as protecting the natural and equal right to due process in matters relating to life, liberty and property. Believing that Congress at that time lacked the constitutional power to enforce the Due Process Clause of the Fifth Amendment, Bingham proposed a Fourteenth Amendment which expressly protected every person’s right to due process and granted Congress the power to enforce the same. Following the ratification of the Fourteenth Amendment, Congress repassed the Civil Rights Act and extended the majority of its protections to “all persons.” This final version of the Civil Rights Act cannot be viewed as an enforcement of the rights of citizenship. Instead, it links the Civil Rights Act to the Due Process Clause and the rights of all persons.
Understanding the link between the 1866 Civil Rights Act and the 1868 Due Process Clause sheds important light on the original meaning of Section One of the Fourteenth Amendment. First, it reveals an underappreciated equal rights strain within the Due Process Clause, a strain that implicates broad congressional power to enforce the equal due process rights of all persons regardless of citizenship. Second, it suggests scholars have been looking in the wrong place for the meaning of the Privileges or Immunities Clause. Rather than protecting the natural equal rights of all persons, it appears this Clause protected the constitutionally enumerated rights of American citizens, such as those enumerated in the first eight amendments. These rights were now to be applied against state officials with new federal power to secure their adequate enforcement.
Kurt T. Lash, Enforcing the Rights of Due Process: The Original Relationship between the Fourteenth Amendment and the 1866 Civil Rights Act, 106 Geo. L.J. 1389 (2018).