Andrew Hyman notes that Andrew Johnson, vetoing the Civil Rights Act of 1866 on March 27, 1866, claimed that the freedmen were unworthy of "all the privileges and immunities of citizens of the United States." After interpreting Johnson as referring only to constitutionally-enumerated rights with that phrase, Hyman notes, "as far as I am aware, no supporter of the Fourteenth Amendment during that era disagreed with or contradicted Johnson's understanding of the term 'privileges and immunities of citizens of the United States.' "
I am less confident than Hyman exactly what Johnson meant in referring to "the rights of citizens as contemplated by the Constitution of the United States." By itself, the context does not require that all the rights of citizens of the United States are in the Constitution, merely that Johnson thought that the freedmen were unworthy of those rights that were.
Whatever Johnson meant, however, it is perfectly plain that lots of very important framers of the Fourteenth Amendment referred to constitutionally-unenumerated rights as rights of citizens of the United States.
My essay on the enumerated-rights-only view of the Privileges or Immunities Clause, serialized on this blog and now forthcoming in the William and Mary Bill of Rights Journal, canvasses several chunks of such evidence. Consider just a few examples from the most important Republicans: the author of the Privileges or Immunities Clause (John Bingham), the chairmen of the House and Senate Judiciary Committees (James Wilson and Lyman Trumbull), the Speaker of the House (Schuyler Colfax), and the representative who presented the Fourteenth Amendment to the House on behalf of the Joint Committee on Reconstruction (Thaddeus Stevens).
1. Bingham. In the context of his ellipsis theory of Article IV, John Bingham used the phrase "privileges and immunities of citizens of the United States" in January 1867 to refer to rights related to prevalent rates of taxation. See here at 16.
2. Wilson. On March 9, 1866, he described the Civil Rights Act, which contained constitutionally-unenumerated rights like the right to contract and the right to own real estate: "[T]his bill refers to those rights which belong to men as citizens of the United States and none other…" See here at 29.
3. Trumbull. Responding to Johnson on April 4, 1866, he said (see here at page 30),
[W]hat rights do citizens of the United States have? To be a citizen of the United States carries with it some rights; and what are they? They are those inherent, fundamental rights which belong to free citizens or free men in all countries, such as the rights in this bill, and they belong to them in all the States of the Union. The right of American citizenship means something.
4. Colfax. He explained on August 7, 1866 (see here at 28),
We passed a bill on the ninth of April last year, 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.
5. Stevens. On September 4, 1866, he specifically concurred with Colfax's explanation of the Civil Rights Act. See here at 29.
Update (3/23): Hyman replies, stressing the supposed difference between "privileges and immunities" and "rights." But Johnson himself–in the very evidence which Hyman relies upon to establish the supposed limitation to constitutionally-enumerated rights!–restates the issue in terms of "rights": "the rights of citizens as contemplated by the Constitution of the United States." Many, many Republicans and others made similar moves, describing the Privileges or Immunities Clause in terms of "rights and immunities," rights and privileges," or simply "rights." The bulk of the evidence in my new book would be incomprehensible were we to draw such a sharp distinction. Colfax and Stevens, of course, spoke in the context of the Privileges or Immunities Clause as proposed, which they very clearly associated with the unenumerated rights of the Civil Rights Act. Pages 14 to 20 of Kurt Lash's book, following pages 64-65 of Michael Kent Curtis's much older book, show this equation of "privileges," "immunities," and "rights" quite clearly.
The fact that the Comity Clause was itself an enumerated right cuts no ice in favor of an enumerated-rights-only reading of the "privileges and immunities of citizens of the United States" in Bingham's 1867 comments. Bingham said that the Comity Clause required comity regarding the privileges and immunities of citizens of the United States, among which were the rates of taxation prevalent in each state. He wasn't talking about comity regarding comity. Bingham clearly didn't think the clause covered only comity regarding enumerated rights–which the notion that "privileges and immunities of citizens of the United States" means "privileges and immunities enumerated in the Constitution" requires.
Posted at 9:13 PM