That's right...what it did was constitutionalize and provide authority for the 1866 Civil Rights act...which enumerated the civil rights it protected...specifically the right "to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.
1866 Civil Rights Act
But those are positive rights...not natural rights or fundamental rights and they're not the Bill of Rights
Then why didn't they specifically write the 14th amendment to say that? Isn't that the arguement you used about it not mentioning the Bill of Rights directly?
####Then why didn't they specifically write the 14th amendment to say that?####
They did. The provisions of the 1866 Civil Rights Act are what were understood at the time to be "privileges & immunities" issues and due process issues. Never in their wildest dreams did the ratifiers of the 14th Amendment think they were making the 1st Amendment applicable against the states.
They did do that...those rights found in the 1866 Civil Rights Act are what were known as "privileges and immunities"...the legal term of art that means that person A (or in the case of the 1866 Civil Rights Act...a black person) will be treated no differently than anyone else by the state
John Bingham himself, who the incorporation advocates always cite as "proof" that the 14th Amendment was designed to incorporate the Bill of Rights, did not believe Congress had the authority to pass the 1866 Civil Rights Act. So, Bingham stated many times that he had drawn the “privileges or immunities” clause of the 14th Amendment from Article IV, Section 2. I don't think there is doubt in anyone's mind at what the P&I clause in the Article IV was intended to accomplish. The problem with Article IV is that it had nothing to say as to how states treated blacks within that state. It did prohibit states from discriminating against blacks from other states but, unlike Article I, Section 8, Article IV provides no enforcement power...so the 14th Amendment, by guaranteeing that every state had to treat blacks in that states on the same footing as whites, effectively remedied the defects in Article IV from which Bingham says he took the P&I clause of the 14th Amendment.
As to Bingham...as I wrote before...he said many contradictory things about the 14th Amendment. In 1871, he himself submitted a Judiciary Committee report on the 14th Amendment that stated:
the 14th 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 14th Amendment, it is believed, did not add to the privileges and immunities before mentioned.
He also stated during debate on the 14th Amendment that, under it, "the care of the property, the liberty, and the life of the citizen . . . is in the States and not in the federal government. I have sought to effect no change in that respect."
He also stated "this proposed amendment does not impose upon any State . . . an obligation which is not now enjoined upon them by the very letter of the Constitution."
Bingham was all over the map and its never been clear to what he was referring in his statements on incorporation. Most of remarks cited in support of incorporation were taken from Bingham's remarks concerning his proposed amendment “The Congress shall have power to make all laws which shall be necessary and proper to secure to citizens of each State all privileges and immunities of citizens in the several States and to all persons in the several States equal protection in the rights of life, liberty, and property.
Bingham claimed his amendment “stands in the very words of the Constitution . . . Every word . . . is today in the Constitution." (as was typical with Bingham on this topic, he didn't have his facts quite right as “every word” was not “in the Constitution”...“equal protection” did not appear at all)
"[T]hese great provisions of the Constitution,” he continued, “this immortal bill of rights embodied in the Constitution, rested for its execution and enforcement hitherto upon the fidelity of the States." As Professor Fairman pointed out in his article, Bingham was discussing Article IV, Section 2, and the 5th Amendment due process clause which Bingham equated with “equal protection. There is no reason to believe that his subsequent references to the Bill of Rights extended beyond those...and certainly his fellow Republicans did not believe that the 14th Amendment did more. William Higby of California thought that the Article IV, Section 2, clause and the 5th Amendment due process clause constituted “precisely what will be provided” by the Bingham amendment.
Thaddeus Stevens, who was probably Bingham's closest confidant, once famously said of Bingham:
In all this contest about reconstruction I do not propose either to take his counsel, recognize his authority, or believe a word he says
Two years after the 14th Amendment was ratified, the Supreme Court elaborated on "privileges and immunities" in Paul v Virgina:
It was undoubtedly the object of the clause in question to place the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those States are concerned. It relieves them from the disabilities of alienage in other States; it inhibits discriminating legislation against them by other States; it gives them the right of free ingress into other States, and egress from them; it insures to them in other States the same freedom possessed by the citizen of those States in the acquisition and enjoyment of property and in the pursuit of happiness; and it secures to them in other States the equal protection of their laws