Trumbull himself had recognized the existence of strong constitutional doubts about his bill. He asserted that the bill was valid under the Thirteenth Amendment - since any encroachment upon a citizen's liberty was "a badge of servitude" and hence within the prohibition of the Thirteenth Amendment, which congress had the express authority to enforce. The opponents of thbill remianed unconvinced. Their detailed attacks on consititutional grounds are not reprinted, with the exception of the addresses by Bingham and Senator Reverdy Johnson [Dem., Md.] whose objections are illustrative of others who expressed similar views.

Two important changes were made in section 1 of the 1866 bill during the congressional debates. The first was the addition of a citizenship clause, making persons born in the country United States citizens. Its purpose was to remove the doubts about the Negro's citizenship status that persisted because of the decision in Dred Scott v. Sandford, 19 How. 393 (1857). The second change was the dropping in the House of the clause in the originalbill containing a general prohibition against discrimination in civil rights on account of race. This had been done to meet Bingham's objections, but did not go far enough to secure his vote and that of those who felt as he did.

Despite the objections of Republicans like Bingham, the Civil Rights Bill passed the Senate on February 2, and the House on MArch 13, 1866. It was, however, voted by President Andrew Johnson on March 27. The veto message was based, in large part, upon the lack of constitutional power in Congress to confer citizenship and abrogate discriminatory state laws. It contains a good summary of the constitutional opposition to the 1866 bill. The Senate debate occasioned by Johnson's veto is not reprinted, for it only repeated what was said earlier. On April 6 and 9, respectievely, the Senate and House voted (the latter without debate), by 33 to 15 and 122 to 41, to override the veto, and the bill became law.

The doubts raised by congressional opponents of the 1866 Civil Rights Act had great effect. It is true that the relatively few cases on the matter ultimately divided about evenly (though Justice Arthur Goldberg recently stated that a majority upheld the constitutionality of the Act, he apprently considered only the cases appearing in official reports [Bell v. Maryland, 378 U.S. 226, 292 (1964) ]. But the doubts persisted and led the congressional advocates of federal enforccement of civil rights to resolve such doubts by constitutional amendment. The ultimate sollution was to recast section 1 of the Civil Rights Act as section 1 of the Fourteenth Amendment. This, we shall see, was the purpose avowed by most participants in the debates on the Fourteenth Amendment.

The adoption of the Fourteenth Amendment was to make the Civil Rights Act of 1866 largely academic. That is the case because section 1 of the new amendment contained a general prohibition against discrimination in its equal protection clause that was even broader that the oringinal ban against

The Civil Rights Act of 1866 was the first federal statute to provide broad protection in the field of civil rights. Its purpose was to give to the newly emancipated Negro equality with whites before the law. This purpose was fully explained by Senator Lyman Trumbull [R., Ill.], Chairman of the Senate Judiciary Committee, in his address on January 29, 1866, introducing the proposed legislation. According to him, the purpose of the bill was to carry into effect the Thirteenth Amendment by destroying the discriminaiton against the Negro that existed in teh laws of the southern states. In this way, the new statute would (as Trumbull had expressed it a month earlier in a speech not reprinted here) "provide for the real freedom of their former slaves."

Trumbull tells us that "the basis of the whole billl" was in its first section, which, as introduced by him, provided (1) that there should be no discrimination in civil rights on account of race; and (2) that inhabitants of every race shall have the same right to contract, sue, take and dispose of property, bring action and give evidence, and to equal benefit of all laws for the security of the person and property. This provision, the senator went on, was intended to "secure to all persons within the United States practical freedom." Of particular interest to one concerned with civil rights was Trumbull's answer to the query of Senator James McDougall [Dem., Cal.], with regard to what was meant by "civil rights." Trumbull replied that the term was defined by the bill's first section and it did not include political rights - and approach that is certainly narrower then that used at the present day.

The speech by Senator Willard Saulsbury [Dem., Del.], illustrates the views of those who opposed all congressional action in teh civil rights field. More important to the student of legislative history was the opposition based upon a claim of unconstitutionality, which found voice in members of the Republican party who plainly favored federal protection of civil rights. Foremost among these was Representative John Bingham [R., Ohio], whose views are of particular interest to us because of the role he played in the drafting of the Forteenth Amendment. When the Civil Rights Bill came before the House in March, Bingham made a strong speech in opposition. On March 9, he asserted that Congress had no power to enact such law, on the gound that the constitutional power to protect individual rights then rested only in the states, not the federal government. He said that the evils which the bill sought to remedy should be dealt with by constitutional amendment - thus indicating that his drafts of Section 1 of the Fourteenth Amendent (infra p. 187) were intended to give constitutional validity to the principles laid down in the 1866 Civil Rights Act. Interestingly, he took a much broader view of the term "civil rights" than Trumbull, stating that it did embrace political rights.