Lash on the "Due Process Understanding" of the 1866 Civil Rights Act

Kurt T. Lash, University of Illinois College of Law, has posted The Due Process Understanding of the 1866 Civil Rights Act:    

Scholars have long looked to the 1866 Civil Rights Act for clues to understanding the original meaning of the Fourteenth Amendment. Despite widely divergent conclusions about the Amendment, almost all scholars share two key assumptions about the Act. First, the framers intended the Fourteenth Amendment’s Privileges or Immunities Clause to retroactively constitutionalize rights protected by the Civil Rights Act of 1866. Second, the framers of the Civil Rights Act sought to enforce the “privileges and immunities of citizens in the several states” protected under Article IV and described in the antebellum case Corfield v. Coryell. A close look at the original sources, however, suggests that neither of these assumptions are correct. The members of the Thirty-Ninth Congress who passed the 1866 Civil Rights Act sought to enforce the equal due process rights of all persons, not just the special privileges and immunities of citizens. Scholars have failed to recognize this by failing to study the original and final versions of the Civil Rights Act.

The original version of the Civil Rights Act guaranteed all persons certain equal rights relating to the protection of person and property. Proponents described these rights as essential aspects of the due process rights of life, liberty, and property originally declared in the Declaration of Independence and constitutionalized by the Fifth Amendment’s Due Process Clause. However, due to concerns that Congress lacked power to enforce the rights of non-citizens, proponents amended the Act to protect only citizens. John Bingham, the man who framed Section One of the Fourteenth Amendment, expressly viewed the 1866 Civil Rights Act as an effort to enforce the Fifth Amendment’s Due Process Clause, but he refused to support the Act. According to Bingham, the amended version unjustly failed to protect all persons’ due process rights. Bingham also insisted that protecting anyone’s due process rights required a constitutional amendment. Bingham subsequently submitted his second version of Section One of the Fourteenth Amendment — a version that included due process rights for all persons. Following the ratification of the Fourteenth Amendment, Congress repassed the Civil Rights Act of 1866 but extended its key provisions to protect all persons and not just citizens. Satisfied that Congress now had the power to enact such legislation, Bingham supported the final version of the Civil Rights Act. The debates of Congress, including the objections of John Bingham, were well published and prompted public commentary which reflected the due process reading of the Civil Rights Act and suggest a Civil Rights Act public understanding of the Due Process Clause.