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 to be more well known.

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 at was Titus Basfield, an ex-slave who was 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, a shortly before the Dred Scott decision, his fully stated view had come to be that the Fifth Amendment Due Process Clause said that 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, author of a biography of Bingham, 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.”

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 as support for the war ebbed in the North, 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 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.”

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 by Sergey Tokarev 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.”

You can read more about Bingham in a number of sources, including, to name just a few:

The Continuing Importance of Congressman John A. Bingham and the Fourteenth Amendment” by Richard L. Aynes, (the product of a national symposium titled “John Bingham and the Meaning of the Fourteenth Amendment,” held at The University of Akron School of Law on October 17-18, 2002).

“The Father of the 14th Amendment” by Gerard N. Magliocca in The New York Times

Introduction to the Report of the Joint Committee on Reconstruction, signed by eleven members (including both Bingham and Howard) of the Committee, justifying the necessity of amending the Constitution in order to better protect the rights of all.

Advertisements

Reputable Fact Checker Sites

pinocchio_4

During the 2016 election season, the Washington Post reported:

“The flood of “fake news” . . . got support from a sophisticated Russian propaganda campaign that created and spread misleading articles online with the goal of punishing Democrat Hillary Clinton, helping Republican Donald Trump and undermining faith in American democracy, say independent researchers who tracked the operation.”

In addition, there are a number of people who create fake news for money. As the Washington Post reported of one set of these “new yellow journalists”:

Fake-news hucksters don’t leave their apartment to find stories, they don’t interview any humans, they don’t have any sources.

They are part of the snake-oil empire that had more engagement on Facebook in the past three months of the presidential campaign “than the top stories from major news outlets such as the New York Times, Washington Post, Huffington Post, NBC News and others,” according to an analysis by BuzzFeed.”

pants-on-fire-600

Thus, it is useful to keep a list of reputable fact-checking sites. Some of the better ones include the following:

Factcheck.org (from the Annenberg Public Policy Center)
Politifact.com
TheFact-Checker.com (from the Washington Post)
Pew Research Center Fact Tank
The Century Foundation
Open Secrets.org (the most comprehensive resource for federal campaign contributions, lobbying data and analysis; features tracking money and how it affects politics.)
Snopes.com (specializes in internet memes)

Eugene Kiely of FactCheck.org admonishes readers to “[b]e skeptical. Check the author. Check the publisher. Check the sources.”:

“You have no idea how many people forward us emails that are anonymously written that made unsubstantiated claims with no sources. Same thing with some ‘stories’ and ‘reports’ written and posted on partisan and advocacy websites. Who is behind the website? What’s their agenda? How it is funded? How transparent is it? Does its articles and reports provide named sources of information with links to source material so readers can check the facts themselves? Reagan used to say, ‘Trust, but verify.’ I’d say verify first, and then determine if the source is worthy of your trust.”

I find that what the Washington Post claims about its fact checking site to be true in general with respect to all of these sites:

We will strive to be dispassionate and non-partisan, drawing attention to inaccurate statements on both left and right.”

There’s a valuable guide to evaluating websites here.

“Rags to Riches” Mainly Happens in Movies, According to Pew Charitable Trust Report

If only the reality of American socioeconomic mobility lived up to the myth. As the Pew Charitable Trust research found:

The American Dream is usually defined in terms of financial security, homeownership, and higher education. Our data on financial security shows why it is in doubt. When it comes to economic mobility—the ability to move up or down the economic ladder within a lifetime or from one generation to the next—your place on the ladder as a child can often be a predictor of your place as an adult.”

OnRecordLadder

You can access the report here.

Changing the Balance of Power

According to the American Wind Energy Association (AWEA), every state in the United States has either an operational wind energy project or a wind-related manufacturing facility, or both:

Nearly 900 utility-scale wind projects – which represent over 60,000 megawatts – are installed across 39 U.S. states and Puerto Rico. There are also 559 wind manufacturing facilities spread across 44 states.”

The chart below printed in “The Atlantic” shows where and when wind energy production records were set. In May, 2013, for example, Colorado derived over 60 percent of the state’s electricity from wind power!

84a22b459

Is The U.S. One Nation, Or Eleven, Four, or Maybe Just Two?

Author and journalist Colin Woodard contends that the U.S. is really 11 different nations.

map_custom-7636b2427382cc547b583285526a2f3f0adeed13-s40-c85

Alternatively, you could see the U.S. as four distinct nations. In the seminal work by historian David Hackett Fischer, Albion’s Seed, Fischer examines four British “folkways” that defined early America and evolved into what we know today as “American culture.” By folkways he means “the normative structure of values, customs and meanings that exist in any culture.” These customs include speech, architecture, gender roles, child-rearing, religion, recreation, and much more. The four major folkways identified by Fischer correspond to four regions of settlement: Massachusetts Bay, tidewater Virginia, the Delaware Valley, and the Appalachian Highlands.

These four areas are the “‘seedbeds’ from which four different populations overspread the nation.” As the colonists migrated westward, they took their folkways with them. Fischer reviews these folkways in detail for each group, and it is fascinating to learn about the origins of many of the practices we retain today.

e275d10bd0bb3d5747c463b6003da3e7_large

With the 2016 election, many believe the nation is now mostly split into two separate entities, commonly thought of as “red” or “blue.” Nate Cohn suggests an “educational split” has replaced the culture war.

Summary of results of the 2000, 2004, 2008, and 2012 presidential elections

Summary of results of the 2000, 2004, 2008, and 2012 presidential elections