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Equality and the Civil Rights Act of 1866: A Final Response to Damon Root

Sensing that the constitutional foundation for his book is crumbling beneath him, Damon Root takes to his blog a second time and tries once more to rehabilitate his arguments about the Fourteenth Amendment by . . . not talking about the Fourteenth Amendment.

Instead, Root wants to talk about the Civil Rights Act of 1866. This allows him to ignore the mountain of evidence contradicting his book’s central constitutional claim that the Privileges or Immunities Clause of the Fourteenth Amendment transformed the equal rights of the Comity Clause into absolute unenumerated economic rights. Unfortunately, Root now adds an additional layer of historical error by mischaracterizing the Civil Rights Act (as other historians have noticed).

Thankfully, his error is easily corrected.

Because Root continues to ignore the actual historical evidence about the Fourteenth Amendment that I’ve presented in my book and in prior posts, there is little need for an extended response. This most recent effort, for example, quotes a speech by Representative John Bingham (R-OH) but ignores a portion of the same speech that expressly contradicts Root’s reading of the Privileges or Immunities Clause. This is anything but a serious effort to engage the historical record relating to the Fourteenth Amendment.

So, for now, let’s just talk about the Civil Rights Act of 1866. Root claims the following:

The framers of the Civil Rights Act understood their legislation to serve a dual function, one that (A) protected fundamental rights from state abuse, and (B) required the states to guarantee equal treatment under the law to all citizens.

Root wants his readers to believe that the Civil Rights Act of 1866 somehow bestowed absolute protection on a set of fundamental unenumerated economic rights as well as providing equal protection. He then asserts that the “dual” protections of the Act also inform the meaning of the Fourteenth Amendment (without telling us how or which part).

In my earlier posts, I argued that the Civil Rights Act provides no more than equal protection for a limited set of locally defined rights, including locally defined economic rights. Root thinks this is a ridiculous proposition.  As he puts it,

According to Lash, if a local government passed a law forbidding both blacks and whites from exercising their right to contract, such a law would be perfectly acceptable because it would not violate Lash’s equality-only reading of the Civil Rights Act. But that result would be absurd and the framers of the Civil Rights Act intended no such absurdity.

I can’t say whether such a limitation is absurd. I can say this is exactly how advocates understood the proposed Civil Right Act. According to Illinois Senator Lyman Trumbull—a source Root himself relies upon:

The bill neither confers nor abridges the rights of anyone, but simply declares that in civil rights there shall be an equality among all classes of citizens, and that all alike shall be subject to the same punishment. Each State, so that it does not abridge the great fundamental rights belonging, under the Constitution, to all citizens, may grant or withhold such civil rights as it pleases; all that is required is that, in this respect, its laws shall be impartial. [Emphasis added]

The meaning that Root finds “absurd” is the meaning expressly insisted upon by Trumbull in his effort to secure final passage of the Act. But perhaps this was just the view of advocates in the Senate. Let’s hear then from the House of Representatives. According to Representative Samuel Shellabarger (R-OH):

Mr. Speaker, if this section did in fact assume to confer or define or regulate these civil rights, which are named by the words contract, sue, testify, inherit, &c., then it would, as seems to me, be an assumption of the reserved rights of the States and of the people. But, sir, except so far as it confers citizenship, it neither confers nor defines nor regulates any right whatever. Its whole effect is not to confer or regulate rights, but to require that whatever of these enumerated rights and obligations are imposed by State laws shall be for and upon all citizens alike without distinctions based on race or former condition of slavery. . . .

Self evidently this is the whole effect of this first section. It secures—not to all citizens, but to all races as races who are citizens—equality of protection in those enumerated civil rights which the states may deem proper to confer on any races.

There is much more, and I won’t belabor the issue. Root is just wrong about the Civil Rights Act. Without the Act, he has no evidence whatsoever in support of his claim that the Privileges or Immunities Clause protects unenumerated substantive economic rights. And without that evidence, the arguments in his book lack a persuasive constitutional foundation. At least not if we take seriously the original meaning of the Fourteenth Amendment.

All of this may seem like piling on—and unfairly so, since Root is a journalist and not a Reconstruction scholar. Root’s historical arguments, however, are the same arguments regularly put forward by libertarian constitutionalists. For that reason, I thought it important to address them on the same ground upon which they are advanced: as claims about the original meaning of the Fourteenth Amendment.

As most readers of this blog already know, there continues to be a lively scholarly debate about the original meaning of the Privileges or Immunities Clause. Indeed there probably should be a lively debate about the relationship between the Civil Rights Act and the Fourteenth Amendment. Scholars like Chris Green, Randy Barnett, Earl Maltz, William Nelson, Michael Kent Curtis, and Michael Les Benedict have all produced extraordinary books grappling with the extensive historical materials relating to the adoption and early understanding of the Fourteenth Amendment. All such serious scholarly debate is helpful in furthering our understanding of the historical record.

I close then by hoping that, in future work, Root joins the debate.

Reader Discussion

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on July 21, 2015 at 12:27:19 pm

I think you misunderstood Senator Lyman Trumbull's statement, you put emphasis on the last part, but skip over the "Each State, so that it does not abridge the great fundamental rights belonging, under the Constitution, to all citizens" part. Earlier in the speech the senator says: "It was strictly limited to the protection of the civil rights belonging to every freeman, the birthright of every American citizen, and carefully avoided conferring or interfering with political rights or privileges of any kind." These fundementally cosntitutioanlly guarenteed rights are the pre-existing natural rights of any free person. You can see this later when Senator Trumbull explains the constitutional authority they are invoking: "That the second clause of the [thirteenth] constittonal amendment gives this power there can be no question. Some have contended that it gives the power even to confer the right of suffrage. I have not thought so, because I have never thought suffrage any more, necessary to the liberty of a freedman than of a non-voting white, whether child or female. But his liberty under the Constitution he is entitled to, and whatever is necessary to secure it to him he is entitled to have, be it the ballot or the bayonet. If the bill now before us, and which goes no further than to secure civil rights to the freedman, cannot be passed, then the constitutional amendment proclaiming freedom to all the inhabitants of the land is a cheat and and a delusion."

It is the constitution (under the thirteenth guarentee of freedom and liberty to blacks), that the senator is now saying that all these rights are guarenteed to blacks. This bill is just presenting the details of what the constition already required.

As to Ohio Rep. Samuel Shellabarger, he split the act into two parts. The first part confired citizenship. He explains why this isnt a problem. And then he goes on to talk about the second part of the first section, that imposes an equal protection part. It is at this point in which the quote that you made of his occured. But this part was only talking about the second part. That part, is purely an equal protection part, exactly as you say. But the problem is that the natural fundemental rights were seen to be protected by the first part. It was the grant of citizenship (combined with the fact that the constitution now prohibited slavery), that made the bill grant some fundemental rights. As Senator Trumbull declared:

"To be a citizen of the United States carries with it some rights; and what are they? They are those inherent, fundamental rights which belong to free citizens or free men in all countries, such as the rights enumerated in this bill, and they belong to them in all the States of the Union." (page 1757)

As he said was "civil rights belonging to every freeman, the birthright of every American citizen." Or as Senator Lyman Trumbull said on page 500, "the Federal Government has the authority to make every inhabitant of Pennsylvannia a citizen, and clothe him with the authority to inherit and buy real estate, and the State of Pennsylvania cannot help it." So because Ohio Rep. Samuel Shellabarger made clear that he was ONLY talking about the second part, that does not apply to the first section.

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Devin Watkins
on July 21, 2015 at 12:31:15 pm

Sorry, I forgot to spell check it before I posted it (can you ignore the variety of spelling errors)

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Devin Watkins
on July 21, 2015 at 12:36:44 pm

I don't know about all the details, but thanks for taking the time to debunk an utterly implausible foundation for random judicial activism.

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Peter Augustine Lawler
on July 21, 2015 at 12:51:03 pm

If Devin is right about the importance of the citizenship declaration of the Civil Rights Act of 1866, though, the Privileges or Immunities Clause itself becomes superfluous in the Fourteenth Amendment; merely being a citizen of the United States does all the work. That can't be right, I think.

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Chris Green
on July 21, 2015 at 14:47:00 pm

Devin, I don't follow your reasoning at all. Maybe I was confused about what parts of the several parts that were part of the civil rights act formed part of what you were trying to discuss.

As far as your quotations go, I think they are equally consistent with Lash's argument. It those rights really belonged to all men in the Union, in all the several States, then all you need is citizenship and the equal protection of civil rights to remove the badges of slavery. You do not need the radical wholesale nationalization of "rights" until then thought to be the domain of the States. If every free person already enjoyed those rights under the state constitutions, there is no need to nationalize their liberties and rights. The thirteenth amendment, which simply abolishes slavery, without expressly providing slaves with any rights at all except the natural implication of personhood, is evidence that Congress wanted equality for slaves, not the federal judge as Hercules. It was adopted particularly to overrule Taney's incredibly racist substantive due process obiter dictum that slaves were personal chattels and not persons entitled, under the general law of nations, to freedom of locomotion when outside the scope of state law. After the thirteenth amendment, former slaves were now free persons and were free to pursue their ends freely under the general law, absent a contrary and non-discriminatory law.

Notice that by talking about "civil rights" as opposed to "natural rights," the Congress that enacted the Civil Rights Act was invoking Locke's idea of civil rights. For Locke, men it society were governed by the positive laws of civil government, made by parliament and applied by independent judges. (if you insist on misreading Locke's social contract, then this is not much of a clue). The citizenship clause, also, was clearly adopted to overturn Dredd Scott's holding that slaves were not entitled to claim the privileges and immunities of ordinary citizens and to claim diversity jurisdiction. What is fundamental about this is that slaves were now considered free citizens with full personhood, not that they were entitled to some immanent form of unspecified natural protection by judges.

Either way, I simply do not see how you can think the evidence presented tends to prove your extravagant thesis. The fact that you think you've rebutted Lash shows how far you are willing to cling to a mythical tea party constitution in the face of evidence to the contrary.

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Jimmy C
on July 21, 2015 at 15:38:06 pm

So if you read Ohio Rep. Samuel Shellabarger’s argument, he splits section one of the civil rights act of 1866 into two parts. Part 1: “That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” This grants citizenship, and everything that comes with that. And then part 2 (the rest of section 1), grants a kind of statutory equal protection clause.

Senator Lyman Trumbull believed that as soon as you declare a person a citizen, combined with the fact that slavery is abolished, means that the things that slave could not have but that a citizen did would be granted to that person. She believed that all “free” men, must have at least this set of “inherent, fundamental rights” for without this set of rights a man is not truly free. That without these rights a person was at least partially a slave. So the act could have just declared them citizens, called it a day, and they still would have had the rights enumerated in the act. But then it went beyond that to make sure that it could not be misconstrued by southern judges that a black man was equal to a white man. A kind of belt and suspenders approach.

Remember that the Civil Rights Act of 1866’s purported authority was almost entirely under the 13th amendment prohibition on slavery and involuntary servitude. To the congressmen at the time a person is practically a slave without these rights.

I wouldn’t go so far as to say that most of them pulling directly from the natural rights theory in the civil rights act (although some were). You see that kind of natural rights argument a lot more with consideration of the amendment rather then the civil rights act.

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Devin Watkins
on July 21, 2015 at 15:42:30 pm

They thought the Civil Rights Act of 1866 would be "good enough." and they didn't need an amendment at first. But as the Civil Rights Act was vetoed with a constitutional objection (that even some of the supporters of the Civil Rights Act agreed was a valid objection), they "constitutionalized" the Civil Rights Act when they passed the 14th amendment. Or at least that was the point of the 14th amendment. And it is being a citizen + the 13th amendment prohibition on slavery that they thought imposed some rights being respected by states. What did it mean to "be a slave"? To them it meant the absence of these rights being respected.

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Devin Watkins
on July 21, 2015 at 15:59:06 pm

The Privileges or Immunities Clause does additional things too, it protects all positive enumerated rights (in addition to unremunerated rights). Things like the right to the assistance of counsel. These things are not granted just by citizenship (and they were not granted in the civil rights act of 1866), it wasn't until the amendment passed that these positive rights in the federal constitution were enforced against the states.

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Devin Watkins
on July 21, 2015 at 16:00:26 pm

unenumerated*

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Devin Watkins
on July 21, 2015 at 17:09:07 pm

I don't really understand. The citizenship declaration was repeated in the Fourteenth Amendment, of course. I don't see how, if that citizenship declaration already brings with it the rights of citizens of the United States, the Privileges or Immunities Clause does any additional work. Some people embrace the superfluity, like Akhil Amar, who wants the federal government to be bound by antidiscrimination principles, but it seems strained to me.

Is the idea that *natural* rights of citizens are alone inferred from the citizenship declaration itself and can go unstated, but positive-law "privileges or immunities" of citizens are so important that they need to be stated explicitly? That seems backward, given the Reconstructors' great emphasis on the importance of natural rights. The natural-rights-only reading of the citizenship declaration also seems to lack a textual foundation. Or is the idea that "privileges or immunities of citizens of the United States" includes *both* natural and positive-law rights? If that's the case, why wouldn't they both be included in the citizenship declaration itself? I'm having trouble seeing how this argument is supposed to work textually. If the right to counsel isn't "granted just by citizenship," why is it a privilege or immunity of citizens of the United States at all?

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Chris Green
on July 21, 2015 at 19:08:18 pm

I don't argue (and I don't think the people who wrote the civil rights act would say), that the citizenship argument implies that because they are a citizen and they are not a slave, therefore all their natural must be respected. They believed that not being a slave meant that at least some rights must be respected (those they enumerated). Most of the rights enumerated had to do with property and economic rights. This was in response to the black codes started in Mississippi. The black codes required that all men present "annual labor contracts" to avoid being charged with vagrancy (if convicted their labor was then sold, just as we have prison labor camps today so they were practically slaves again at that point). They were prevented from owning land outside cities (and therefore could not independently farm). "Runaway workers" were brought back just like run away slaves. Licensing and apprenticeship rules were created made it almost impossible for blacks to start a business or hire others. Many of these laws were actually "racially neutral" at least on the books (although implemented in racially discriminatory ways), although some (like direct extra taxes on blacks) were not racially natural. In short this was slavery reimposed through the removal of economic freedom and then requiring those without a job from a white man to be sold back into slavery to white men. So the north saw this and thought that such behavior by the south was just another way of recreating slavery, that those that are slaves do not have these rights, and "truly freemen" do have (at least) these economic rights. They were not necessary saying (at least at the time of the civil rights act), that ALL natural rights must be respected, but just that these economic rights that put the person practically back in slavery must be.

So now we get back to the privileges or immunities clause. This was not in the civil rights act of 1866. It (at least in my opinion), applied all rights guaranteed under the constitution (both enumerated and unenumerated) against the states. That means full incorporation. The citizenship clause does not protect all natural rights (unlike the P or I clause does) only those (because of the 13th) that make you a slave if you don't have them. "Privileges or immunities of citizens of the United States" (at least in my opinion) includes both natural and positive rights. Specifically the word "Privileges" means all positive rights, the word "immunities" means all natural rights protected by law, and "of citizens of the United States" means those protected under the federal constitution (rather then the state constitution like the comity clause).

You cant (at least in the opinion of the civil rights act writers), "not be a slave" without the right to acquire property, and so this right was granted by citizenship + the 13th amendment. You can "not be a slave" without the right to the assistance of counsel. It is a positive right originally granted only against federal criminal prosecutions. After the P or I clause though, it is now a positive right applied against the states. In addition to positive rights, there could also be natural rights, that without which you are still not a slave and therefor not granted by citizenship + the 13th amendment, but the P or I clause guarantees those rights as well now.

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Devin Watkins
on July 21, 2015 at 19:40:06 pm

Thank you, Peter for a simple, yet, critically important observation. The type of interpretation that assumes that *substantive* economic rights are conferred by the 14th is the same type of interpretive method that leads to the modern predilection of conferring ALL sorts of substantive rights - and clearly, at the expense of the local "platoons."

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on July 22, 2015 at 08:51:53 am

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Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.