Framing the Fourteenth Amendment
During the Thirty-ninth Congress a consensus emerged among Republicans that civil or fundamental rights encompass protection for life, liberty, and property. Although some radicals also attempted to include the franchise and the entire Bill of Rights, they lacked a congressional majority. As Herbert Hovenkamp and Earl Makz stress, the Civil Rights Act of 1866 defined the citizen's fundamental rights as the right to make and enforce contracts; the right to acquire, use, enjoy, and dispose of real and personal property; and the right to equal protection for property and personal security.1 It liberated freedmen from bond slavery by protecting their equal right to make economic choices for themselves.
The Civil Rights Act did not contain such terms as "privileges or immunities," "due process," and "equal protection of the law," but it did address those concepts in specific terms. In contrast to the language of the civil rights bill, the Fourteenth Amendment is a statement of broad legal principles. Section one imposes a general duty on the states to protect the individual's life, liberty, and property rights. Section five confers power on Con____________________