civil rights and immunities ... privileges and immunities
I tend to think that the primary reason for Bingham choosing the term "privileges or immunities" was because he borrowed it from Article IV. Bingham had a notion that the declaration that "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens of the several States" made the USBOR binding upon the States, but failed to delegate a federal power to enforce the provision. And he was out to "fix" that.
"The employment here, in the first clause of this amendment, of the identical language contain in article four, section two, of the Constitution, seems like an atttempt to force upon it a construction that has always been denied by judicial authorities and commentators upon the Constitution; and its use here, in connection with the remaining clause, can only be intended to enlare its signification without being sufficiently explicit to make its meaning undisputed." - Nicholson April 7, 1866 (39th Congress)
I somehow have it in my mind that the term "civil rights and immunities" was changed to "privileges and immunities" with an intent of narrowing the scope, specifically to exclude political rights. To be blunt about it, the yankee congress didn't want to force black suffrage upon their own States. That is how I'm remembering it. Regardless, my comment about the P&I was in response to an assertion that it was well understood that "privileges" means "political rights" while "immunities" means "natural rights". Who in the 39th Congress understood it that way, and on what date did they declare so? I seem to be at a loss.
What I'm thinking is that Bingham chose the term "privileges or immunites" because of Article IV, and because congress as a whole had gone with the term rather than the term "civil rights and immunities" which covered too much ground.
This other idea, where the term "privileges or immunities" was chosen with the purpose of incorporating Taney's dicta in Dred Scott about the P&I including the RKBA, seems so results oriented that it leaves me feeling uncomfortable. Did anyone in the 39th Congress say that they understood the term "privileges or immunities" to be used so that it would embrace Taney's dicta about the RKBA being part of the P&I?
Here's a question ... why was it that when the Freedmen's Bureau Bill was amended to specifically include the RKBA, it was not added to the enumeration of civil rights and immunities, but rather it was added to the equal protection clause?
if the language in the 14th Amendment is meant only to mirror the limited interpretation given the "civil rights and immunities" in the Civil Rights Act - why did Senator Johnson attempt to strike that language when there was no objection from him to the Civil Rights Act?
I'm not sure ... but it appears to me that Senator Johnson was opposed to the Civil Rights Act as being unconstitutional, and he did not engage in debate with the intent of rewording the amendment, but rather he simply objected to the whole thing. And then when an amendment came up, that was different, and he engaged in debate over its wording. I don't think we can say that Johnson approved of the way that the Civil Rights Act was worded just because he didn't try to get it worded differently ... I suspect that he didn't bother with how it was worded because he felt there was no way to word it properly because he thought it was unconstitutional.
[The 1866 Civil Rights Act didn't make the USBOR binding against the States] Because a bill cannot change the Constitution of the United States. Only an amendment to the Constitution can do that.
I don't seem to recall any discussion about how there was a need to make the USBOR binding upon the States but a bill cannot do such a thing. The way I understand it, the Civil Rights Act and the 14th Amendment were two approaches to the same problem ... Bingham thought that the act was unconstitutional and that was the origin of the 14th. It seems to me that the 1866 Civil Rights Act did not make the USBOR binding against the States because there was no such need or desire (except by a few radicals).
Given the Constitutional interpretations in Barron v. Baltimore and Dred Scott, what exactly could be done with the 1866 Civil Rights Act standing alone?
I'm not sure that I understand the question. The act said "That all persons born in the United States ... are hereby declared to be citizens of the United States; and such citizens ... shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, [etc.]". It seems clear enough what the act did. If you're asking how the Act could have stood up to constitutional challenges, I think it could not have, and I think that was one of the reasons why the 14th was intended to make the civil rights act part of the US Constitution, to settle the question of its constitutionality.
So your interpretation is that the Senator introducing the bill on behalf of the Joint House-Senate Committee was a radical minority and his statement that the object of the bill was to guarantee the personal rights secured by the first eight amendments against the states was not the prevailing view of the people who voted for it and ratified it (or of the Joint Committee that he represented?)
Yes, that is my impression. Howard was not the Chairman who was supposed to represent the committe, but rather the Chairman was ill and Howard stepped in for him. I have read that most of the committee were conservatives (relatively speaking) and that Howard was a radical. I have read that the committee did not discuss making the USBOR binding upon the States. And after Howard gave his introduction, in which he said that the P&I should include the USBOR, person after person stood and said that the scope of the 14th was the same as that of the civil rights act.
I simply cannot fathom your implication that the 14th was never properly ratified when ratification was unanimous
I've read that the 14th was presented to Virginia for our consideration, and it got zero votes in our house, and zero votes in our senate ... the US then put Virginia under military rule and said we could have our rights back when we voted for the 14th. Virginia became "US Military District Number One". The whole South was put under military rule and divided into military districts. Let's be clear about this now ... the war was over, the States were back in the Union, the 14th was presented to us for our vote, and when the South began voting against it the whole region was put under military rule until we voted for it. There were other problems too, such as the Southern States being denied representation in the Congress.
It was given that the 14th would fail. Because it was given that the South would repeal the civil rights act, and the intent was for the 14th to make the Civil Rights Act part of the Constitution so the South couldn't repeal it. It was only a question of whether they would ratify the 14th without the Southern States or whether they would force the Southern States to ratify it against our will. They seemed to like to pretend to appear legitimate, so they went with the later method. We should not be fooled.