The Civil Rights Act of 1866 was vetoed by President Andrew Johnson. Part of his rationale for the veto was that the Congress lacked the authority to confer national citizenship. He also used the words “privileges and immunities” in a new context. In 1866, Johnson had already vetoed the expansion of the Freedman Act that had come out of the Senate, sponsored by Charles Sumner’s Select Committee on Slavery and Lyman Trumbull (a veto that was over-ridden). Johnson’s rationale was that it expanded the power of the federal government at the expense of the states, and he was anxious to return the southern states back into the union as expeditiously as possible and with as little inconvenience to their former status.
The 38th and 39th Congress had other ideas, arguing that the southern states had rebelled, taken themselves out of the Union and therefore would have to reapply under conditions set by the Republican Congress. Ironically, Johnson, by suggesting that a constitutional amendment would be needed to do what the Congress wanted in the Freedman Act and Civil Rights Act, may have forced them to do just that in the 14th Amendment.
The south had always assumed that should their rebellion fail, it wouldn’t matter that much because, as Garrett Epps pointed out in his book Democracy Reborn, a prominent southern paper had written “Universal assent appears to be given to the proposition that if the States lately rebellious be restored to rights of representation according to the federal basis, or to the basis of numbers enlarged by the enumeration of all the blacks in the next census, the political power of the country will pass into the hands of the South, aided, as it will be, by Northern alliances. The South claims that this will be the fact, and the North does not dispute it.” So fears of a southern reversal of everything that had been gained by the war were not unfounded.
Johnson’s sustained attempt to defeat the Amendment both deepened and helped shape public understanding of the proposed text and its impact on the autonomy of the States. It was President Johnson, for example, who first declared that congressional efforts to protect the “privileges and immunities of citizens of the United States” required a constitutional amendment. When Congress submitted a proposed amendment that adopted the President’s own phrases Johnson responded by challenging the very legitimacy of the Republican Congress and making opposition to the Amendment the focus of the Democratic platform in the fall elections. The Democrats were soundly defeated gave the 39th Congress a complete Republican majority. That gave them the authority they needed to propose the Amendment and nationalize the Bill of Rights.
Johnson’s suggestion that Congress lacked constitutional authority to confer the status of national citizenship would ultimately lead to the addition of the citizenship clause of the Amendment. But even more importantly, Johnson introduced the language of the rights of national citizenship to the legislative and public debate. Johnson announced in one of his speeches of 1866, that Congress had sought to confer the “privileges and immunities of citizens of the United States,” a category of rights altogether different from the state conferred rights protected under the Comity Clause. (Article IV of the Constitution that had been interpreted to mean only that states had to honor the privileges conferred on state citizens across state lines.) Johnson’s reference regarding the rights of national citizenship would soon become a part of the Fourteenth Amendment.
Bingham himself mocked the opposition for claiming they were "not opposed to the bill of rights," but only opposed to their federal enforcement. If states had no authority to violate the Bill of Rights, "how can the right of a State be impaired by giving to the people of the United States by constitutional amendment the power by congressional enactment to enforce this provision of their Constitution?” Such enforcement was essential, argued Bingham, in light of Chief Justice Marshall's Supreme Court's ruling in Baron v. Baltimore which had decided that the Bill of Rights applied only to the federal government and authority and not the states. Actions in the south that clearly were intended to remove protections from freedmen necessitated federal enforcement and application to the states, especially of due process and the privileges and immunities of citizenship.
Sources: Lash, Kurt T. "The Constitutional Referendum of 1866: Andrew Johnson and the Original Meaning of the Privileges or Immunities Clause." SSRN Electronic Journal, 2012. doi:10.2139/ssrn.2125363.
Epps, Garrett. Democracy Reborn: The Fourteenth Amendment and the Fight for Equal Rights in Post Civil War America. New York: Henry Holt, 2013. Kindle.
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