The Anti-Slavery and Abolitionist Background of John A. Bingham
Like many small towns in midwestern America, the courthouse of Cadiz, Ohio dominates its town square. There stands the statue of its favorite son: John A. Bingham. Bingham's public career was a long and distinguished one. He served as county prosecutor, United States Congressman for sixteen years, major and judge-advocate in the United States Volunteers, Solicitor of the Court of Claims, and Ambassador to Japan for twelve years.
His name is inseparably linked with section 1 of the fourteenth amendment to the United States Constitution. He was its primary author, and Justice Black bestowed upon him the title: ‘Madison of the Fourteenth Amendment.’ Because of this link with the fourteenth amendment, Bingham's congressional speeches are frequently cited by commentators and the courts.
Though Bingham may have been deemed a proper subject of a few local histories and an occasional graduate student paper, the legal profession has taken notice of him only within the context of what has been termed the ‘struggle for control of constitutional history’ in the battle over the fourteenth amendment's scope and effect. Though this struggle may be viewed as a continuous one, it has not been without its ebbs and flows.
The initial contest came in the Slaughter-House Cases, at a time when all of the United States Supreme Court Justices had lived through the amendment's adoption. Relying upon their own knowledge and views of the intent of the amendment, and without reference to Bingham or the congressional debates, the Court refused to find protection against monopolies as one of the privileges and immunities of national citizenship.
The battle was joined again during the Lochner era with the Supreme Court's application of fourteenth amendment substantive due process concepts to protect certain economic interests. Those critical of the Court's decisions found there to be a ‘conspiracy’ to ‘hide’ such protection within the fourteenth amendment. Though their initial focus was upon Roscoe Conkling, ultimately the critics felt that John Bingham, a ‘shrewd’ and ‘successful railroad lawyer,’ was the real culprit. Apparently their attention was drawn to Bingham by Benjamin Kendrick's publication of the Journal of the Committee of Fifteen on Reconstruction which outlines the key role Bingham played in drafting section 1 of the amendment. However, the work of Howard J. Graham and Louis B. Boudin established, beyond all reasonable doubt, that there was no conspiracy. With the demise of substantive due process, the controversy about, and interest in, Bingham evaporated.
In 1947, the Supreme Court reopened the debate about the extent of the protections the fourteenth amendment afforded, with Justice Black relying in large part upon the statements of Representative Bingham and Senator Howard to conclude that the Bill of Rights was part of the privileges and immunities protected. Justice Frankfurter advanced an opposite view. For a time, Bingham's views became critical, and Charles Fairman opened the scholarly debate upon the intent of the framers of the fourteenth amendment and incident to that, the role and views of Bingham himself. W.W. Crosskey and Jacobus tenBroek joined the debate on the other side. But, with the Court's march toward ‘incorporating’ further portions of the Bill of Rights through the due process clause, Bingham's views became less important.
In 1979 Raoul Berger published Government by Judiciary. His thesis was that the Court had misread the fourteenth amendment at least to this extent: there was no intent to apply the Bill of Rights through the fourteenth amendment. More specifically, Berger suggested that in intent of the amendment's framers controlled and they intended it not to prevent segregated schools or to interfere in the state's power to regulate the right to vote. In Berger's view, this meant that the Court incorrectly decided both Brown v. Board of Education and Baker v. Carr. Berger quoted extensively from Congressman Bingham's House speeches-at times relying upon him as authority and at other times refusing to accept his statements as representative of those who proposed and adopted the fourteenth amendment.
Because Berger argued that much of current constitutional thought was not only wrong but illegitimate, it was predictable that many would assail his conclusions. That reaction was perhaps exacerbated by Berger's willingness to produce stringent responses to his critics, with the end result being numerous articles laced with frequent quotes from John Bingham.
Yet, other than identifying the name of John Bingham with the thoughts or quotations with which the author supports his or her view, and noting that he was a lawyer, little information has been presented about Bingham himself. This is perhaps natural, because the thoughts expressed in legislative debates may stand on their own merit. Nevertheless, in order to present a consistent view some commentators, particularly those who, like Professors Fairman and Berger, believe that the Bill of Rights was not designed to apply to the states, must analyze Bingham's logic and the effect that he had upon other members of Congress.
This approach prompted Michael Curtis to utilize Bingham's congressional biography to indicate that he was, in fact, a man of accomplishment who was well respected in his own time. Professor Paul Dimond enlarged upon this biographical information about Bingham for a somewhat different purpose: to indicate the extent of Bingham's antislavery views. Professor Dimond's balanced approach draws upon the limited biographical data then available about Congressman Bingham. While always pointing out the limitations of that information, he suggests how the information may be relevant in supporting the inference that Bingham did intend the fourteenth amendment to apply the Bill of Rights to the states. By taking this approach, though it is a minor portion of his work, Professor Dimond addressed a new aspect of the fourteenth amendment's history and made relevant further inquiry into the background of the man who is credited with having been its author.
It is the purpose of this Article to expand upon the point raised by Mr. Curtis and canvassed by Professor Dimond in order to make more readily available information concerning John Bingham's background that may be relevant to interpretations of the fourteenth amendment. Of particular interest here is his exposure to antislavery views and abolitionist ideas from his family, the community in which he spent part of his childhood, his education, his church, his legal studies, his law practice, his professional associates, and his political associates. The parallel between this background and his own political actions from the 1840 Presidential campaign until his retirement from public life in 1885 is the subject of a future study.
Richard L. Aynes, The Anti-Slavery and Abolitionist Background of John A. Bingham, 37 Catholic University Law Review 881 (1988).