Whatever else its enactors may have intended, scholars agree that the Fourteenth Amendment was intended to constitutionalize the rights in the 1866 Civil Rights Act.
When Senator Lyman Trumbull, the draftsman and Senate sponsor of the 1866 Civil Rights Act, was asked by a fellow Senator to explain his interpretation of the term "civil rights", Trumbull replied, "The first section of the bill defines what I understand to be civil rights[.
When President Andrew Johnson vetoed the 1866 Civil Rights Act on the ground that it was unconstitutional, Lawrence defended congressional authority to enact the measure by emphasizing that national citizenship entails certain rights, particularly the rights protected by the Civil Rights Act.
167) Given the emphasis in Congress on the notion that the 1866 Civil Rights Act protected fundamental rights, it is likely that most state legislators understood the Privileges or Immunities Clause as providing protection of the fundamental rights that appertain to citizenship.
175) As McConnell explains, language protecting "civil rights or immunities" generally had been deleted from the 1866 Civil Rights Act because some Republicans had argued that such language might be read to bar racial discrimination that burdened rights that the Act was not intended to protect.
For example, when the 1866 Civil Rights Act was under consideration, Representative Moulton, after describing civil rights as fundamental rights, said that "a civil right is a right that a party is entitled to and that he can enforce by operation of law.
198) More importantly, proponents defended the Act, especially before the Slaughter-House cases, in the same terms used to defend the 1866 Civil Rights Act.
207) Nevertheless, Sumner's remarks are clear evidence that defense of the 1875 Act's provisions in common law terms necessarily entailed speaking in terms of Corfield's fundamental rights criteria--the same criteria deployed to defend the 1866 Civil Rights Act.
