The shame of Constitution Day 2013 is that it went unobserved in this blog. In fact, when the NY Fishwrap ran an Op-Ed piece on the 14th Amendment, this blogger was bemused. A day later, an essay about the most important Constitutional amendment was obviously a fit thing to print. So, today this blog offers a belated salute: "Roll Over, Little Jemmy! Make Way For John Bingham!" If James Madison was "The Father of the Bill of Rights" and John Bingham was "The Father of the 14th Amendment," this blogger has always asked "Who was the 'Mother' "? whenever the hoary "Father of This" or "Father of That" appellations were attached to some luminary. If this is a (fair & balanced) recognition of nominative procreation, so be it.
[x NY Fishwrap]
The Father Of The 14th Amendment
By Gerard N. Magliocca
Tag Cloud of the following piece of writing
In September 1863, the Ohio politician John Bingham was at the lowest point of his career. He had once been among the fastest-rising stars in American politics. Nine years earlier, he was among the first group of Republicans elected to the House of Representatives. Shortly after arriving in Washington, he established himself as one of the leading congressional voices against slavery. He was one of the new President Lincoln’s most steadfast supporters and a key member of the House’s pro-war caucus.
But things soon turned difficult. Bingham’s Ohio district was redrawn after the 1860 census. Meanwhile, support for the war was flagging in the North, and soldiers at the front were not allowed to vote with absentee ballots. As a result, Bingham was drummed out of Congress during the 1862 elections.
Despite this personal and professional setback, Bingham remained confident about his future and of Union victory. The political views he espoused in Congress, he believed, would triumph; though currently unpopular, they would return to public favor in time — and with them, his own career. He told Treasury Secretary Salmon P. Chase that the “limitations of the Constitution upon the States in favor of the personal liberty of all of the citizens of Republic black & white [are] soon to become a great question before the people.”
Bingham was right. Three years later, he was back in the House, elected in the wave of pro-Lincoln sentiment that swept the country in the fall of 1864. Once there, Bingham went to work. He took the lead in framing the 14th Amendment of the Constitution, and he authored its guarantee that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” More than any man except Abraham Lincoln, John Bingham was responsible for establishing what the Civil War meant for America’s future.
Bingham was born in Pennsylvania in 1815. His mother died when he was 12 years old, and he was sent to Ohio to live with his uncle. In 1835, he enrolled at nearby Franklin College, a haven for abolitionists led by a member of the Underground Railroad. One of Bingham’s classmates at Franklin was Titus Basfield, an ex-slave who was one of the first African-Americans to receive a college degree in Ohio. Bingham and Basfield became friends and corresponded regularly for the next 40 years. It was highly unusual to attend a racially integrated school in the 1830s, and Bingham’s relationship with Basfield almost certainly influenced his opposition to slavery and his belief in racial equality.
Prior to his election to Congress, Bingham practiced law in eastern Ohio and was active in the Whig Party. In 1848 he served as a delegate at the Whig National Convention and became a lightning rod by attempting to introduce a platform plank that would commit Whig candidates to resist any extension of slavery to the territories. While Bingham was not yet an out-and-out abolitionist — he supported the Compromise of 1850 — he forged bonds with other leaders who would play a pivotal role in winning the Civil War. Edwin M. Stanton, a Democratic lawyer who became Lincoln’s secretary of war, was one of Bingham’s business competitors and a friendly political opponent. Salmon Chase, part of Lincoln’s “Team of Rivals,” was Bingham’s mentor in the antislavery cause in Ohio. These three men would be at the center of the impeachment trial of President Andrew Johnson in 1868, with Chief Justice Chase presiding over the Senate, Bingham giving the closing argument for the House and War Secretary Stanton’s dismissal by the president serving as the focus of the trial.
When the Kansas-Nebraska Act destroyed the Whig Party in 1854, Bingham seized his chance and was elected to Congress as a member of the new Republican Party. He rose to national attention during the debate over the statehood application of “Bleeding Kansas,” displaying the talent that led many of his colleagues to describe him as the most eloquent member of the House. In a series of speeches over the next few years, Bingham laid out his view that the Constitution was “based upon the equality of the human race. Its primal object must be to protect each human being within its jurisdiction in the free and full enjoyment of his natural rights.” In a different speech, he said: “You will search in vain in the Constitution of the United States... for that word white, it is not there.... The omission of this word — this phrase of caste — from our national charter, was not accidental, but intentional.” He added, “Black men... helped to make the Constitution, as well as to achieve the independence of the country by the terrible trial of battle.”
Bingham backed Chase for the Republican presidential nod in 1860, but he became one of Lincoln’s most loyal supporters. He called the president “the saddest man I ever met,” but said “few men could illustrate a point better than Lincoln by a homely story. There was always playful humor about him which seemed to be thoroughly incorporated in his nature, as a kind of offset against his constitutional sorrow and sadness.”
When the secession crisis began, Bingham worried that Lincoln would not stand firm, as “the press is full of everything for compromise and carefully excludes every word said against compromise” under the slogan “compromise the Constitution, betray Liberty, and lose the African.” As he told the House, “What just cause of complaint has the South, or any portion of her people, against this Government? There is none.” The only injustice that could justify a revolt was that “wrong which dooms four million men and their descendants forever to abject servitude.”
The Civil War transformed Bingham from a dissenter into a legislator. In the 37th Congress, from 1861 to 1863, he was instrumental in drafting bills to support the war effort, including the muster of the state militias, the admission of West Virginia and the suspension of habeas corpus. He made an impassioned plea for the successful abolition of slavery in the District of Columbia, commenting that the legislation “illustrates the great principle that this day shakes the throne of every despot upon the globe, and that is, whether man was made for government or government made for man.”
While Bingham was a civil libertarian who argued after the war that the entire Bill of Rights should be extended to the acts of state governments, during the war he argued that the First Amendment did not protect any man who “encourages armed rebellion against the Constitution and laws of the Republic.” Likewise, he said that the Fifth Amendment’s guarantee that “no person shall be deprived of life, liberty, and property, without due process of law” was the “law of peace, not of war. In peace, that wise provision of the Constitution must be, and is, enforced by the civil courts; in war, it must be, and is, to a great extent, inoperative and disregarded.”
President Lincoln recognized Bingham’s ability and offered him several jobs after the congressman was defeated in 1862. Bingham turned down a judgeship in Florida and a post as the administration’s top lawyer at the Court of Claims, but Lincoln would not take no for an answer. In 1864, the president asked him to lead the prosecution of the surgeon general in a court martial. Bingham hesitated because he knew nothing about military law, but Lincoln convinced him by saying that no “common lawyer understands martial or military law, but I think that you can learn it as soon as any man I know.” When the president was assassinated, Bingham vindicated that faith by serving as one of the three military prosecutors of John Wilkes Booth’s co-conspirators, where he gave the closing argument in one of the most sensational trials of the 19th century.
Bingham won back his congressional seat in 1864, and a year later he received a coveted position on the Joint Committee on Reconstruction, which was charged with setting the conditions for the South’s return to the Union. In the 39th Congress he vied with Thaddeus Stevens for the leadership of the House and largely prevailed in his view that the rebel states should remain under military occupation until they agreed to ratify a new constitutional amendment.
Most significantly, Bingham drafted the crucial language of that 14th Amendment. It is Bingham who is responsible for the words: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
This sentence would be the legal basis for the Supreme Court’s subsequent decisions desegregating the public schools, securing equality for women, and creating the right to sexual privacy. Bingham also said that his text would also extend all of the protections of the Bill of Rights to the actions of state governments, which is largely, though not completely, the law today.
When the ex-Confederate States refused to ratify the 14th Amendment, Bingham crafted a legislative compromise that ordered the Union Army to organize new elections across the South that would include African-Americans. He told the House that “unless you put [the South] in terror of your laws, made efficient by the solemn act of the whole people to punish the violators of oaths, they will defy your restricted legislative power when reconstructed.”
Sadly, of course, this kind of bitter resistance was the norm until The Reverend Dr. Martin Luther King Jr. led the civil rights movement to victory in the 1960s, but Bingham did his best to prevent that outcome. The new state elections organized under the Military Reconstruction Acts led to the ratification of the 14th Amendment in 1868, and Bingham played a central role in shaping the Ku Klux Klan Act of 1871, which was intended to stop racist vigilantes and is now a cornerstone of civil rights law.
Bingham remained in Congress until 1873, and then served as the American ambassador to Japan for 12 years before retiring to Ohio. He died in 1900, largely forgotten.
Bingham’s legacy is best summarized by a speech that he gave as a young man. In it, he said: “When the vital principle of our government, the equality of the human race, shall be fully realized, when every fetter within our borders shall be broken... and a noble mission fulfilled, we may call to the down-trodden and oppressed of all lands — come.” Ω
[Gerard N. Magliocca is the Samuel R. Rosen II Professor of Law in the McKinney School of Law of Indiana University/Purdue University in Indianapolis. He is the author of Andrew Jackson and the Constitution: The Rise and Fall of Generational Regimes (2011), The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (2011), and American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (2013). Magliocca received a BA from Stanford University and a JD from the Yale Law School.]
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