In the now-famous 1830s chronicle of a visit to America, Alexis de Tocqueville wrote that in America every political issue is ultimately a legal issue in the courts. The political issues left unresolved at the end of the Civil War were addressed legally by the passage of the fourteenth amendment. Justice Brennan suggested that more cases were litigated under the Fourteenth Amendment than under any other provision of the United States Constitution. James E. Bond has likened the Amendment to a “Second Constitution.” (Actually the third if you include the failed Articles of Confederation.)
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 any person within its jurisdiction the equal
protection of the laws.
I happened to be reading about John Bingham’s fight for black rights and the 14th amendment after the Civil War. John Bingham was a congressman from Ohio; an abolitionist who believed that Article IV section 2 of the Constitution should be interpreted and amended to give Congress the right to enforce the Bill of Rights on the states. Until the 14th amendment as later interpreted using the due process clause of the 5th amendment, the Bill of Rights applied only to the federal government. What Bingham thought is of no little passing interest as it is essential in determining the “original intent” of the authors of the amendment.
Bingham was born in Mercer, Pennsylvania in a two story house on the courthouse town square that still exists today. His father was a carpenter and bricklayer who was passionately interested in politics. He was a member of the anti-Mason party, whose membership included an important abolitionist, Thaddeus Stevens, Speaker of the Pennsylvania House. Stevens became important in the creation of the fourteenth amendment. John and his father became members of the Whig Party, known for its opposition to war with Mexico, annexation of territory (and especially the extension of slavery into new territory), and slavery itself. After the death of his mother, John went to Cadiz, Ohio to live with his uncle, a judge and prominent Whig. The Cadiz area, while not being exclusively abolitionist, was considered predominantly of that mindset. John attended Franklin College, whose President of the Board and a teacher was Reverend Walker, a man devoted to abolitionism. The Reverend Titus Basfield, a former slave, was a member of Bingham’s class at Franklin. Basfield and Bingham were friends and corresponded for many years.
Bingham became a lawyer and consorted with many politicians. He startled the Whig convention of 1848 which supported Zachary Taylor with the radical position of “No more slave states, no more slave territories, the maintenance of freedom where freedom is and the protection of American industry.” His statement was ruled out of order, but represented a strong strain of idealism and brought him national recognition. He was involved in rewriting the Ohio Constitution in 1855 and that presciently used the words “privileges” and “immunities” in connection with “equal protection.”
Bingham was elected to Congress in 1854 where he immediately showed his anti-slavery colors. In 1857 he opposed not only the admission of Kansas as a slave state, but also the imposition of slavery upon the territory. In another speech, he vindicated the anti slavery views of Salmon Chase—that freedom was national and slavery only local—while also
claiming for slaves the right to act in self-defense. “It is too late to make it felony to utter the self-evident truth that life and liberty belong of right to every man by virtue of the same creative energy which breathed into him the breath of life, and he became a living soul.” Bingham did not limit rights to white people. To the contrary, he based his legal and constitutional arguments upon the view that blacks had equal rights with whites.
As Chairman of the House Judiciary Committee following the takeover of the House by the Republicans, Bingham was already noting the use of the word “persons,” in the Constitution to support black rights. He fought against the admission of Oregon as a “free” state in 1859 on the grounds that it excluded blacks from its borders and denied them the ability to use
the courts of the new state to vindicate their rights. He also adopted the free labor arguments against slavery. (See more at Free Soil, Free Labor, Free Men: The Ideology of the Republican Party before the Civil War by Eric Foner)
With regard to the use of the word “person” in the Fifth Amendment, Bingham noted that “[i]t makes no distinction either on account of complexion or birth—it serves these rights to all persons within its exclusive jurisdiction.” In reversing the argument of slave holders for the protection of property Bingham continued: This is equality. It protects not only life and liberty, but also property, the property of labor. It contemplates that no man shall be wrongfully
deprived of the fruit of his toil any more than of his life. . . . “ He said he would oppose admission of Kansas as a slave state even of all the white citizens of the territory wanted it. Persons could not be property in his mind under any circumstances.
When Virginia Representative William Smith, future confederate general, wanted to prevent anyone from becoming Speaker who had endorsed Hinton Helper’s anti-slavery book, The Impending Crisis of the South, which argued that slavery was holding back the economic future of the South, Bingham quoted from Jefferson and Washington’s Last Will and Testament, not to mention the Virginia Resolution of 1774, to ridicule Smith’s proposal making it look like Smith was denying his own heritage.
“I asked the gentleman to remember that the bold word ‘abolish’ is there. Abolition, if you please, is incorporated in that memorial declaration, for his father and mine went through . . . the revolution.”
Further, Bingham stated, defiantly it would seem: “I adopt the words as mine: when any form of government becomes destructive of the rights of life or liberty, it is the duty of people to
abolish it.”
Contrary to most federal generals and Lincoln himself who, like many southerners feared a slave insurrection, Bingham applauded the idea supporting their right to use force to gain their freedom. “He denounced southern laws that would make it a crime to “whisper” to a slave that “there is a God that . . . sometimes condescends to clothe with superhuman power that good right arm of an outraged man when he strikes for the liberty of himself, his wife, and children.”
When it was suggested that the Fourteenth Amendment might result in a majority of blacks taking over the governments of South Carolina and Mississippi as they were in the majority, Bingham sarcastically noted that’s precisely what whites had done to blacks and continued to support their suffrage, guaranteed under the 14th amendment.
The religious influence behind the guarantees of the 14th amendment was important. The story of Paul in Acts 23:25 where Paul is about to be scourged and beaten by Roman soldiers until they realize he was a Roman citizen, was a well-known story. American citizenship should equally protect its citizens against abuses by states. Bingham, in campaigning for its ratification said in 1867, ““We propose to put it into the power of every man, woman, child, black or white, rich or poor, when his rights are invaded, to raise his hand toward the flag, and say, I AM AN AMERICAN CITIZEN.” That was a direct attack on states rights.
Before the 14th Amendment it was settled law that the Bill of Rights applied only to Federal territories, not states. But states like Pennsylvania and later Ohio, had strong Bills of Rights for their citizens and which had incorporated sections of the Declaration of Independence, especially the section where all “men are created equal.” Indeed, the Ohio provision went further and indicated that “every free republican government” was founded upon the authority of these free and equal people and was “organized for the great purpose of protecting their rights and liberties.”
In Barron ex rel. Tiernan v. Mayor of Baltimore (1833), the Supreme Court ruled that the Bill of Rights applied only to the Federal Government. Chief Justice Marshall recalled that the founding generation added the first eight Amendments to the Constitution in response to Anti-Federalist concerns regarding the extent of federal—not state—power, and held that if “the framers of these amendments [had] intended them to be limitations on the powers of the state governments, “they would have declared this purpose in plain and intelligible language.” Finding no such language in the Bill, Chief Justice Marshall held that it did not in any way restrict state authority.
In the McDonald’s decision that applied the 2nd amendment gun rights to the states through substantive due process of the 14th amendment, Justice Thomas wrote a very interesting concurrence arguing the Privileges or Immunities Clause rather than substantive due process should have been used to apply the amendment to the states. That’s very interesting and very powerful.
Justice Thomas argued for a more cogent application of fundamental rights. As he said in his McDonald concurrence, “I cannot accept a theory of constitutional interpretation that rests on such tenuous footing. This Court’s substantive due process framework fails to account for both the text of the Fourteenth Amendment and the history that led to its adoption, filling that gap with a jurisprudence devoid of a guiding principle. I believe the original meaning of the Fourteenth Amendment offers a superior alternative, and that a return to that meaning would allow this Court to enforce the rights the Fourteenth Amendment is designed to protect with greater clarity and predictability than the substantive due process framework has so far managed.”
One aspect of the difference between using the due process clause and the Privileges or Immunities Clause is that due process part refers to persons, i.e. it would apply to everyone, whereas the Privileges or Immunities Clause refers to citizens. So had the Court used Thomas’s reasoning one could argue that non-citizens did not have the same gun rights as citizens. As it stands now, every person has full gun rights regardless of citizenship.
There was a famous debate between two law professors, Fairman and Crosskey. Most law school professors sided with Fairman who did not believe the 14th Amendment incorporated the Bill of Rights to the states. Generally, they did not read Crosskey or wrote him off as simply wrong. When Raoul Berger wrote his Government by Judiciary in the early sixties he was immediately adopted by the conservative press and crowd anxious to roll back the decisions of the Warren Court. They thought the easiest way to do that was to roll back incorporation arguing that historically the framers of the 14th amendment never intending it to be such. Berger rather demolished Bingham.
Michael Kent Curtis went back and looked up discussions of the two main proponents of incorporation and discovered that had talked and written about it extensively. “Of coure the historical evidence against incorporation could be strong, even of much of the evidence marshalled for it was mistaken. Ordinarily, those who advocate a massive rollack of Supreme Court precedent based on history should bear the burden of proof.” [Michael Kent Curtis] An exchange of views with Berger resulted related to the “nine-lived-cat.” Others, including Edwin Meese and Alexander Bickel decried the application of the First Amendment to the states.
(to be continued) Cont. at https://rarebits.blogspot.com/2018/12/biongham-johnson-veto-and-privileges.html
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