Enforcing the Rights of Due Process The Original Relationship Between the Fourteenth Amendment and the 1866 Civil Rights Act
Citation: 106 Geo L.J. (2018)
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 closer look at the original sources, however, reveals that the 1866 Civil Rights Act protected rights then associated with the requirements of due process. John Bingham, the man who drafted Section One of the Fourteenth Amendment, 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 that expressly protected every per-son’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 to 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 mean-ing of Section One of the Fourteenth Amendment. First, it suggests that scholars have erred in trying to use the Civil Rights Act as a guide for understanding the original meaning of the Privileges or Immunities Clause. Although citizens enjoyed the equal rights of person and property protected by the Act, such enjoyment was only because all persons held such due process-related rights. The particular Privileges or Immunities of Citizens of the United States involved a different cate-gory of rights—rights that men like John Bingham and Jacob Howard identified as those actually enumerated in the Constitution. Second, understanding the link between the Civil Rights Act and the 1868 Due Process Clause reveals an underappreciated equal rights principle within both the federal Due Process Clause and the Fourteenth Amendment’s Due Process Clause. This principle not only appropriately informs due process constraints on federal activity in places like the District of Columbia, but it also implicates broad congressional power to enforce the equal due process rights of all persons in the states regardless of citizenship.