Historical Development of Federal Power

Prior to the Civil War there had been little or no effort to invoke the authority of the Federal government in protection of the right to security of the person. Indeed the Constitution seemed to afford no legal basis for such intervention. It might have been possible to predicate Federal power upon the Bill of Rights, embodied in the first eight amendments, but the Supreme Court squarely held in 1833 that the Bill of Rights imposed restrictions only upon the Federal government, not upon state or local governments or their officials, or upon private individuals. Barron v. Baltimore, 7 Peters 243, 8 L. Ed. 672 ( 1833). This ruling has never been seriously challenged.

Another source of Federal power might have been the privileges and immunities clause in Article IV, Section 2 of the Constitution. This provides that "the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." See Corfield v. Coryell, 6 Fed. Cas. 546, No. 3230 (E.D. Pa. 1823). But this provision has now been interpreted to require only that no state may deprive a citizen of another state of the "privileges and immunities", whatever they may be, enjoyed by its own citizens. Thus even if the phrase "privileges and immunities" were interpreted broadly, which it has not been, the provision would afford protection only for discrimination by states against citizens of other states. Slaughter-House Cases, 16 Wall. 36, 21 L. Ed. 394 ( 1873); Rottschaefer, Handbook of American Constitutional Law, pp. 123-34 ( 1939); Hale, Some Basic Constitutional Rights of Economic Significance, 51 Col. L. Rev.271, 288-304 ( 1951).

In the aftermath of the Civil War, however, the country turned sharply in the direction of invoking Federal power for the protection of rights to security of the person. In the Thirteenth, Fourteenth and Fifteenth Amendments, and in the Civil Rights Acts, there was created the basis for a vast expansion of Federal authority.