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Bill of 1866, which initially referred to “ civil rights or immunities.” ¹⁰ In explaining these terms, Lyman Trumbull, chairman of the Senate Judiciary Committee, read from the Maryland (per Samuel Chase, soon to ascend to the Supreme Court) and Massachusetts cases.¹¹ Early on these courts had construed Article IV in terms of trade and commerce.¹² Chase declared, as did Massachusetts Chief Justice Parker, that the words were to be given a “limited operation.” ¹³ Activists ignore those opinions and build entirely on Corfield,¹⁴ notwithstanding that Trumbull did not read Corfield broadly, stating that it “enumerates the very rights set forth in the Bill” and explaining that “the great fundamental rights set forth” ¹⁵ in the Bill are “the right to acquire property, the right to come and go at pleasure, the right to enforce rights in the courts, to make contracts,” ¹⁶ rights embodied in the Act.

      A telling illustration of the “limited” scope of “privileges or immunities” was furnished by John Bingham, an activist mainstay. Despite repeated assurances that the Civil Rights Bill was limited to the specifically enumerated rights, Bingham protested vehemently:

      [C]ivil Rights . . . include and embrace every right that pertains to the citizen . . . [it would] strike down . . . every State constitution which makes a discrimination on account of race or color in any of the civil rights of the citizen . . . [it would] reform the whole civil and criminal code of every State government.¹⁷

      Consequently the phrase “civil rights and immunities” was deleted, explained James Wilson, chairman of the House Judiciary Committee, in order to remove “the difficulty growing out of any other construction beyond the specific rights named in the section . . . [leaving] the bill with the rights specified.” ¹⁸ The House approved the deletion of the “oppressive” words. No activist has attempted to explain why Bingham, after strenuously protesting against the oppressive invasion of the States’ domain by “civil rights,” embraced in the lesser “privileges” of the Amendment the very overbroad scope he had rejected in the Bill.

      In truth, the framers regarded “privileges or immunities” as words of art, having a circumscribed meaning. After reading to the Senate from the cases, Trumbull remarked, “this being the construction as settled by judicial decisions.” ¹⁹ Judge William Lawrence acknowledged in the House “that the courts have by construction limited the words ‘all privileges’ to mean only ‘ some privileges.’ ” ²⁰ Although the Supreme Court noticed the Bingham incident in Georgia v. Rachel and concluded that the Bill reached only a “limited category of rights,” ²¹ it is ignored by activists.

      That is likewise the fate of other striking evidence. On January 20, 1871, Bingham submitted a Report of the House Committee on the Judiciary, from which he did not dissent, reciting that the privileges or immunities clause of the Fourteenth Amendment

      does not in the opinion of the committee, refer to privileges and immunities . . . other than those privileges and immunities embraced in the original text of the Constitution, Article IV, Section 2. The Fourteenth Amendment, it is believed, did not add to the privileges and immunities before mentioned.²²

      The Supreme Court likewise declared that the phrase did not add to the privileges or immunities provided by Article IV.²³ What manner of scholarship is it that ignores such weighty evidence? Instead, Erwin Chemerinsky and Bruce Ackerman would attribute to the 1823 Corfield case power to expand the 1866 Bill, whose spokesman, after reading from Corfield, said it enumerated the “very rights” listed in the Bill.²⁴

      B

       THE CIVIL RIGHTS BILL OF 1866

      The Civil Rights Bill and the Fourteenth Amendment, activist William Nelson correctly observed, are “inextricably linked.” ²⁵ The Amendment was designed to embody the Act in order to prevent its subsequent repeal or, in the alternative, to give it constitutional footing. The evidence that the framers deemed the Act and Amendment “identical” is unequivocal and uncontroverted.²⁶ That identity is highly important because, as the Supreme Court stated in 1966, “The legislative history of the 1866 Act clearly indicates that Congress intended to protect a limited category of rights.” ²⁷ The sponsor of the Act, Senator Lyman Trumbull, chairman of the Senate Judiciary Committee, described its provisions as the “right to acquire property, the right to come and go at pleasure, the right to enforce rights, to make contracts.” ²⁸ He is corroborated by the face of the Act.²⁹ If Act and Amendment are “identical,” it follows that the Amendment likewise protects only a “limited category of rights,” an unpalatable conclusion that activists simply cannot bring themselves to swallow. But, as Alexander Bickel concluded, “It remains true that an explicit provision going further than the Civil Rights Act would not have carried in the 39th Congress.” ³⁰

      So, John Hart Ely rejects the “claim [that] the coverage of the two was meant to be identical.” ³¹ So, too, Paul Dimond dismisses the “claim that the Fourteenth Amendment dealt solely with the rights enumerated in the 1866 Act.” ³² Although Michael Zuckert considers my “unrelenting effort” to identify Act and Amendment of “greatest importance,” he rejects it on the ground that the language of the Act and that of the Amendment are different, and he asks, if the framers “merely sought to get the Civil Rights Act into the Constitution why did they not simply take the first section and use it for the amendment?” ³³ By that logic the argument for incorporation of the Bill of Rights—which Zuckert endorses³⁴ —collapses. Indeed, the argument for embodiment of the Civil Rights Act is far stronger, because the framers unmistakably and repeatedly stated that Act and Amendment are “identical.” Unlike incorporation of the Bill of Rights, there was no confusion on this score. To Zuckert’s triumphant query “Why didn’t they say so,” the answer in Justice Holmes’ words is that if “the Legislature has . . . intimated its will, however indirectly, that will should be recognized and obeyed.³⁵

      To dispose of activist caviling, herewith some additional evidence. Martin Thayer of Pennsylvania explained that “it is but incorporating in the Constitution . . . the principle of the Civil Rights Bill which has lately become a law” in order that it “shall be forever incorporated in the Constitution.” ³⁶ On the ratification trail in August 1866, Senator Trumbull “clearly and unhesitatingly declared [Section 1 of the Amendment] to be ‘a reiteration of the rights as set forth in the Civil Rights Bill.” ³⁷ In Indiana, Senator Henry Lane “affirmed Trumbull’s statement concerning the first section”;³⁸ and Senator John Sherman of Ohio endorsed those views in a speech on September 29, 1866.³⁹ Senator Luke Poland of Maine spoke to the same effect in November 1866.⁴⁰ In sum, Joseph James concluded, “Statements of congressmen before their constituents definitely identify the provisions of the first section of the amendment with those of the Civil Rights Bill.” ⁴¹

      Horace Flack’s canvass of “speeches concerning the popular discussion of the Fourteenth Amendment” led him to conclude that “the general opinion held in the North . . . was that the amendment embodied the Civil Rights Bill.” ⁴² In 1871, James Garfield emphasized that “he not only heard the whole debate [in the 39th Congress] at the time, but I have lately read over, with scrupulous care, every word of it as recorded in the Globe,” and stated “this section [1] of the Amendment was considered as equivalent to the first section of the Civil Rights Bill.” ⁴³ Earlier Justice Bradley had stated, “the first section of the bill covers the same ground as the fourteenth amendment.” ⁴⁴ Subsequently Justice Field, dissenting in the Slaughter-House Cases from emasculation of the “privileges or immunities” clause, stated on behalf of the four dissenters, “In the first section of the Civil Rights Act Congress has given its interpretation to those terms.” ⁴⁵ Activist far-fetched inferences from generalities are no counter to such hard facts.

      The modern rights extracted from the Civil Rights Act of 1866 are at a long remove from those envisioned by its framers. Some additional evidence will make that plain. Radical Senator Henry Wilson of Massachusetts urged the framers to ensure

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