Government by Judiciary. Raoul Berger

of Article IV, §2, and its construction by Justice Washington. Third, in introducing the prototype of §1, Bingham said that the “privileges or immunities” had been drawn from Article IV; fourth, Senator Howard similarly referred back to the Article.⁵ Speaking after Howard, Senator Luke P. Poland stated that §1 “secures nothing beyond what was intended by” the original privileges and immunities provision.⁶ More important is the all but universal identification of §1 with the Civil Rights Act. Why, then, were not the terms of the Act incorporated bodily in §1? Constitutional drafting calls for the utmost compression, avoidance of the prolixity of a code;⁷ “the specific and exclusive enumeration of rights in the Act,” as Bickel remarked, presumably was considered “inappropriate in a constitutional provision.” ⁸ In sum, the words “privileges or immunities,” it is safe to say, were designed to secure “person and property” against violence and oppression by the rights auxiliary to such protection. How was this design separated from the “privileges or immunities of a citizen of the United States”?

      Justice Miller correctly stated that Article IV, §2, did not “profess to control the powers of State governments over the rights of its own citizens.” Its sole purpose was to require that the rights granted by a State to its “own citizens . . . the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction.” ⁹ Without mentioning “citizens of the United States,” the courts had construed Article IV to mean that a migrant citizen from one State would enjoy the “fundamental rights” accorded by a sister State to its own citizens.¹⁰ This the framers understood; the cases were quoted, explained, and used as a platform for the Civil Rights Bill.¹¹ The task, however, was not one of outright adoption but of adaptation. For the Negro did not become a migrant by emancipation; generally speaking, he remained in the same State. But he had experienced a transmigration, from that of a slave, a nonperson,¹² to a freeman, and the framers meant to secure to this transmigrant the rights that Article IV, §2, had guaranteed to a migrant citizen.

      Early on, James A. Garfield of Ohio stated, the goal was that “personal liberty and personal rights are placed in the keeping of the nation, that the right to life, liberty, and property shall be guarantied to the citizen in reality . . . We must make American citizenship the shield that protects every citizen, on every foot of our soil.” ¹³ That motive manifestly was at the heart of the Civil Rights Bill: “all persons born in the United States . . . are hereby declared to be citizens of the United States,” and it went on to proscribe “discrimination in civil rights or immunities among the inhabitants of any State.” ¹⁴ A citizen of the United States who was an “inhabitant” of a State was to be free from discrimination. The Bill, Chairman Wilson stated, “refers to those rights which belong to men as citizens of the United States and none other.” ¹⁵ Raymond of New York said that it provided protection for “citizens of the United States . . . against anticipated inequality of legislation in the several States.” ¹⁶ Cook of Illinois understood the Bill to provide “that as between citizens of the United States there shall be no discrimination in civil rights or immunities. When these rights which are enumerated in this bill are denied to any class of men on account of race or color, when they are subject to a system of vagrant laws which sells them into slavery or involuntary servitude, which operates upon them as upon no other part of the community, they are not secured in the rights of freedom.” ¹⁷

      In the Senate, Trumbull stated that Corfield v. Coryell “enumerates the very rights belonging to a citizen of the United States which are set forth in the first section of the bill.” ¹⁸ Senator Garrett Davis of Kentucky understood full well what Trumbull was about, and therefore proposed to substitute the Article IV, §2, formula— “The citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States” —explaining that it would apply “only when a citizen of one State goes into another State,” whereas, he stated, Trumbull “proposes now to apply his bill to every citizen of the United States . . . where that citizen is domiciled in the State in which he was born.” In other words, Trumbull would legislate “for the resident Negro in Kentucky, born there, who has always lived there, and who intends to remain there,” to which, he stated, Corfield has no application.¹⁹ Thus, Davis sought to restrict the Bill exactly as Justice Miller later did, but his proposal was stillborn. Instead, Trumbull reasoned from Corfield that were a law to declare a “person born in the United States a citizen of the United States, the same rights [listed in Corfield ] would then appertain to all persons who were clothed with American citizenship.” ²⁰ After President Johnson’s veto of the Bill, Trumbull again stated that “citizens of the United States” have “fundamental rights . . . such as the rights enumerated in this bill,” among them, citing Blackstone, that “restraints introduced by law should be equal to all ” and, quoting Kent, “the right of personal security, the right of personal liberty, and the right to acquire and enjoy property.” ²¹ In short, the Senate rejected the Davis-Miller view in favor of a United States citizenship that would clothe residents of a State with the “fundamental rights” theretofore conferred on migrants.

      Did these views, expressed in connection with the Civil Rights Bill, carry over into the Fourteenth Amendment? Here there is more than the intention to constitutionalize the Civil Rights Act. Frederick E. Woodbridge of Vermont stated that the proposed Bingham prototype was “intended to enable Congress . . . to give all citizens the inalienable rights of life and liberty, and to every citizen in whatever State he may be . . . that protection for his property which is extended to the other citizens of the State.” ²² George R. Latham of West Virginia understood the Fourteenth Amendment “privileges and immunities of citizens of the United States” to “provide that no State shall make any discrimination in civil rights of citizens of the United States on account of race . . . the ‘civil rights bill’ which is now a law . . . covers exactly the same ground.” ²³ So, too, John M. Broomall of Pennsylvania stated, “We propose, first, to give power to the Government . . . to protect its own citizens within the States,” a proposition for which the House had “already voted . . . in the civil rights bill.” ²⁴ Ephraim R. Eckley of Ohio also stressed the need to provide “security for life, liberty and property to all citizens of all the States.” ²⁵ And Senator Howard referred to the privileges and immunities of Article IV, quoted Corfield to explain the terms, and stated that these rights “are secured to the citizens solely as a citizen of the United States.” ²⁶ Apart from Garrett Davis’ abortive attempt to limit this objective, no one, so far as I could find, disputed that the purpose of both the Civil Rights Act and the Amendment was to guarantee to “citizens of the United States,” whether they were migrants to or residents of a State, the enumerated fundamental rights.

      In the process of hammering out the Amendment, the framers had lost sight of the definition of citizenship contained in the Civil Rights Bill, so it was late in the day when Senator Benjamin F. Wade of Ohio remarked anent the word “citizen” in §1, “that is a term about which there has been a great deal of uncertainty in our government.” To “put the question beyond cavil,” he proposed to “strike out the word ‘citizen’ [in what is now the second sentence of §1], and substitute all persons born in the United States.” ²⁷ Howard advanced a counterproposal, the present introductory sentence, “All persons born in the United States . . . are citizens of the United States and of the State wherein they reside.” Wade then withdrew his proposal.²⁸ Presumably the Howard formulation struck Wade as a satisfactory substitute for, not a repudiation of, his own proposal. Although the Negro had been emancipated, the Dred Scott decision threw a shadow over his citizenship;²⁹ the matter had been a source of interminable argument. Trumbull wished “to end that very controversy, whether the Negro is a citizen or not.” ³⁰ Howard stated that his definitional amendment of §1 “settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States.” And he further explained, “we desired to put this question of citizenship and the rights of citizens and freedmen under the civil rights bill beyond the legislative power” of those who would “expose the freedmen again to the oppression of their old masters,” ³¹