Colfax on the Rights of U.S. Citizens
Andrew Hyman
Schuyler Colfax of Indiana was speaker of the U.S. House of Representatives from 1863 to 1869, and later vice president of the U.S. from 1869 to 1873 during the administration of Ulysses S. Grant. On August 7, 1866, less than two months after the Fourteenth Amendment had been sent to the states for ratification, Colfax gave a speech in Indiana supporting ratification of the Amendment. The following passage of his speech is often quoted by people who think the Privileges or Immunities Clause goes beyond expansion of protection for rights that were already mentioned in the Constitution:
We passed a bill on the ninth of April last, over the President’s veto, known as the Civil Rights Bill, that specifically and directly declares what the rights of a citizen of the United States are—that they may make and enforce contracts, sue and be parties, give evidence, purchase, lease and sell property, and be subject to like punishments. That is the last law upon the subject.
By the “Civil Rights Bill” Colfax meant the Civil Rights Act of 1866 (CRA). I would like to explain why I don’t think this excerpt from Colfax really suggests that the Privileges or Immunities Clause goes beyond protecting pre-existing constitutional rights from infringement by the states.
Colfax was not suggesting that the CRA protected rights absolutely, and instead his comments later in the same speech confirm that the CRA only required as much protection as white citizens got: “I want this great doctrine, that there shall be equality before the law, placed where it can not be repealed, that no state shall deny to any person the equal protection of life, liberty and civil rights.” The plain text of the CRA confirms that it was all about equality, and newspapers in 1866 confirm that “the Civil Rights Bill is solely to provide the equal protection of law.”
Even though Colfax was referring to equality rights listed by the CRA, he still identified those with “the rights of a citizen of the United States.” Those equality rights would go beyond the type of rights already protected by the text of the Constitution, while also leaving out many absolute rights already protected by the text of the Constitution. Did Colfax really mean to do that? I doubt it.
Colfax said the CRA “declares what the rights of a citizen of the United States are” but scholars who now rely upon that statement usually say Colfax was setting a floor and no ceiling for the meaning of the Privileges or Immunities Clause. But one could just as implausibly infer a ceiling and no floor, from what Colfax said in this 1866 speech. More likely than talking about floors or ceilings, he was probably just talking about what the rights of a citizen of the United States are under the CRA. After all, the Constitution in 1866 already included many absolute rights of citizens that were not within the scope of the CRA’s equality requirements, and some of those constitutional rights were even applicable against both the federal government and the states. Surely Colfax understood that.
Consider how narrow the CRA was by today's standards, even aside from its limitation to equality rights. Supporters of the CRA argued that the exclusio unius rule of interpretation applied to the CRA’s listing of rights, so that many rights would not be within the CRA’s scope even if that scope extended to absolutely protecting the listed rights. For example, the rights to vote and hold office were not in the CRA given expressio unius, and also given the notion shared by many congressmen that “civil rights” did not include “political rights.” And, the Bill of Rights was excluded from the CRA as well, given that it contained absolute rights instead of equality rights. Regarding the constitutional right of eligible citizens to seek and hold office, that right, like the Bill of Rights at that time, was only applicable against the federal government, but they were all rights of U.S. citizens even though the Fourteenth Amendment had not yet been ratified.
So, when Colfax said that the CRA declares what the “rights of a citizen of the United States” are, he probably meant in context the rights of a citizen of the United States that Congress had decided to recognize and protect, not other rights even if they already were in the Constitution. The CRA did not necessarily recognize rights of U.S. citizens that were already in the Constitution, and conversely the Privileges or Immunities Clause did not necessarily recognize rights of U.S. citizens that were already in the CRA.