January 21, 1815 – Birth of John Bingham, Author of the Fourteenth Amendment

John Bingham was an important figure in the formation of the laws of the U.S. who deserves more recognition.

Bingham was born on January 21, 1815 in Pennsylvania, moving to Ohio to live with his uncle after the death of his mother. In 1835, he enrolled at nearby Franklin College, founded by abolitionist John Walker who was also a member of the Underground Railroad. One of Bingham’s classmates was Titus Basfield, an ex-slave and one of the first African-Americans to receive a college degree in Ohio. The two developed a friendship that lasted for over forty years.

But Bingham had already been steeped in abolitionist influences, as he indicated in 1862 after calling chattel slavery “an infernal atrocity”: “I thank God that I learned to lisp it at my mother’s knee.” In addition, both his father Hugh and his uncle Thomas Bingham were active in abolitionist political circles.

Bingham got a law degree and became active in the Whig Party. In 1848 he served as a delegate at the Whig National Convention where he tried to introduce a platform plank that would commit Whig candidates to resist any extension of slavery to the territories.

John Bingham

With the dissolving of the Whig Party in 1854, Bingham joined the new Republican Party, and was elected to Congress. There he established himself as one of the leading congressional voices against slavery. As Leslie Goldstein explains in “The Birth and Rebirth of Civil Rights in America,” (50 Tulsa L. Rev. 317, 2015), Bingham’s publicly stated views were not as strident at the start of his career. But after the 1854 Kansas-Nebraska Act was passed, he became more vocal. And in January 1857, shortly before the Dred Scott decision, he articulated his belief that the Fifth Amendment Due Process Clause meant no person could be deprived of liberty without the kind of process involved in trials for crimes, “and since the Constitution everywhere referred to slaves as persons, Congress had been obligated since 1789 to forbid slavery in carrying out its power to admit new states.” Bingham argued, Goldstein reports, that the “primal object” of the Constitution “must be to protect each human being within its jurisdiction in the free and full enjoyment of his natural rights,” and “the equal protection of each” is a “principle of our Constitution.”

In a different speech reported by Professor Gerard Magliocca in his biography of Bingham, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment, Bingham 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.”

Congressman John A. Bingham during the Civil War. Photo by Matthew Brady

When the secession crisis began, Bingham asked 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.”

But support for the war ebbed in the North, and Bingham, in the Lincoln pro-war faction, lost his seat in the 1862 elections.

Three years later, he was re-elected in the wave of pro-Lincoln sentiment that swept the country in the fall of 1864. When Lincoln was assassinated, Bingham served 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.

John Bingham (left) along with Joseph Holt (center) and Henry Burnett (right) were the three prosecutors in charge of the Lincoln assassination trial.

In 1865, Bingham received a coveted position on a joint committee charged with setting the conditions for the South’s return to the Union. 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.”

Bingham pointed out that this proposal was simply an amalgam of the fifth amendment and the privileges and immunities clause contained in article IV, section 2, coupled with a grant of power to Congress to enforce them. Bingham added that while these obligations already rested on the states, state officers of the southern states had habitually disregarded them.

This sentence would come to 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.

In an eloquent speech to Congress given by Bingham on February 28, 1866, Bingham explained the need for and purpose of the 14th Amendment, and countered arguments against it:

The question is, simply, whether you will give by this amendment to the people of the United States the power, by legislative enactment, to punish officials of States for violation of the oaths enjoined upon them by their Constitution? That is the question, and the whole question. The adoption of the proposed amendment will take from the States no rights that belong to the States. They elect their Legislatures; they enact their laws for the punishment of crimes against life, liberty, or property; but in the event of the adoption of this amendment, if they conspire together to enact laws refusing equal protection to life, liberty, or property, the Congress is thereby vested with power to hold them to answer before the bar of the national courts for the violation of their oaths and of the rights of their fellow‐men. Why should it not be so? That is the question.”

Professor Magliocca avers that more than any man except Abraham Lincoln, John Bingham was responsible for establishing what the Civil War meant for America’s future. And as noted in a biography of Bingham on the U.S. Civil Liberties website:

Writing in McCreary County, Kentucky v. American Civil Liberties Union of Kentucky (2005), Justice David Souter characterized the Fourteenth Amendment as ‘the most significant structural [constitutional] provision adopted since the original Framing.’ Yale Law School professor Akhil Reed Amar offers this assessment of Bingham’s contribution: ‘It was Bingham’s generation that in effect added a closing parenthesis after the first eight . . . amendments, distinguishing these amendments from all others. As a result, Americans today can lay claim to a federal Bill of Rights set apart from everything else, and symbolically first even if textually middling.'”

Other Supreme Court Justices have also praised Bingham, such as Hugo Black, who quoted Bingham extensively in his dissent in Adamson v. California (332 U.S. 46, 1947), observing “Bingham may, without extravagance, be called the Madison of the first section of the Fourteenth Amendment.” This particular reference is important because Black also incorporates a detailed legislative history of the formulation of that amendment by Bingham in the same dissent.

Professor Magliocca reported further in a New York Times piece on Bingham:

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 Rev. Dr. Martin Luther King Jr. led the civil rights movement to victory in the 1960s, but Bingham did his best to prevent that outcome.”

Harper’s Weekly 1868 sketch of John Bingham and Thaddeus Stevens before the Senate addressing the vote on President Andrew Johnson’s impeachment by the House of Representatives

Bingham served in Congress until 1873, and then was appointed by President Grant as the American ambassador to Japan, serving for 12 years before retiring to Ohio. He died in 1900, with few today but legal scholars aware of his name and the significance of his achievements.

Tom Donnelly, a Senior Fellow For Constitutional Studies at the National Constitution Center, lamented in a tribute to Bingham on the 150th anniversary of the 14th Amendment:

Professor Akhil Amar once observed, ‘Many of us are guilty of a kind of curiously selective ancestor worship—one that gives too much credit to James Madison and not enough to John Bingham.’  Even as Madison is often labeled the ‘Father of the Constitution’ and recognized as the primary author of the Bill of Rights, most Americans ignore the Second Founder who most worked to realize the universal promise of Madison’s Bill and Jefferson’s Declaration.  With the Fourteenth Amendment set to turn 150, the time has come to change that.”

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