by Gerard N. Magliocca. New York: New York University Press, 2013. 295pp. Cloth $30.00. ISBN: 978-0-8147-6145-8.
Reviewed by John R. Vile, Middle Tennessee State University.
The author of this review is among those who has contributed to the continuing stream of books on the writing and ratification of the U.S. Constitution and on American Founding Fathers, much of which has been fueled by the continuing accessibility of James Madison’s notes and by Max Farrand’s THE RECORDS OF THE FEDERAL CONVENTION OF 1787 (1966). Abraham Lincoln remains a favorite of biographers and analysts. So too, there is an ever-growing literature on the men and women whose work led to the writing and adoption of the Nineteenth Amendment.
By contrast, little has been published on Ohio Representative John Bingham, the key author of Section 1 of the Fourteenth Amendment, and Yale University Press has apparently dropped plans to publish a long-advertised set of books on the debates over the Reconstruction Amendments. This has left scholars who want to understand the debates to scour through the original issues of the CONGRESSIONAL GLOBE, or the CONGRESSIONAL RECORD or to pull out their magnifying glasses to search through the dense compilation of debates last published in 1967 by individuals in the heart of the old confederacy concerned about increasing federal encroachments (Avins). Scholars and Supreme Court justices routinely cite John Bingham in their efforts to understand the meaning of the Fourteenth amendment, the most important section of which he authored, and yet few have a clear conception of the man himself.
Political scientists will thus join historians and lawyers in welcoming this volume on John Bingham by Gerard N. Magliocca, who is the Samuel R. Rosen Professor at Indiana University Robert H. McKinney School of Law. Magliocca’s book is not, as this reviewer initially concluded from a 1927 quotation on the opening page (then true, but no longer so) the first biography of Bingham (See Beauregard, 1989), but it is a worthy addition to existing knowledge that will cast light on, without fully illuminating, the meaning of one of the Constitution’s most important amendments.
Bingham was born in Ohio in 1815, lost his mother when he was twelve, studied at Franklin College, where he was friends with ex-slave Titus Basfield, and studied law under John J. Pearson and William Stewart before forming a variety of law partnerships, none of which appear to have been particularly lucrative. His marriage to a first cousin, Amanda Bingham, produced many children, few of whom survived into adulthood. Initially a Whig, Bingham uttered his first known words in opposition to slavery in 1848 and was catapulted to power by his opposition to the Kansas-Nebraska Act and the [*487] expansion of slavery in the territories, which gained him a Republican seat in Congress in 1854 that he was regularly to hold until 1872. Initially mentored by Joshua Giddings, Bingham in time became one of the House’s most powerful members.
Although constantly driven by the idea of a Constitution that treated all men equally, some of Bingham's constitutional interpretations might seem bizarre. Thus, Magliocca documents Bingham’s initial view (directly contrary to current judicial precedents) that new states were on substantially-different grounds than those of the original Union, and were thus directly bound by the provisions of the national Bill of Rights. From early in his career, he interpreted the privileges and immunities clause not simply to assure equal treatment of in-state and out-of-state citizens, but also as a guarantee of substantive liberties. Although Bingham was not known for his sense of humor, one can only wonder whether he was punning on the name of the Chief Justice when in an 1859 speech, he opposed denying rights to individuals simply because they were “born with tawny skins” (p.63). Although he later favored the Fifteenth Amendment, he did not initially think that the Constitution was designed to guarantee political rights, like the right to vote (p.64). Bingham admired Lincoln and ended up prosecuting those who were associated with his assassination. The trial was controversial, in part because it was conducted as a military trial and in part because it involved the first U.S. execution of a woman, and scholars continue to dispute its overall fairness.
Bingham is, of course, best known for his relentless quest to draft and adopt Section 1 of the Fourteenth Amendment and for the view that this amendment was designed to incorporate a variety of national privileges and immunities including those listed in the Bill of Rights. Despite earlier constitutional gymnastics, Bingham favored such an amendment over strained judicial interpretations of the Constitution or statutes, which he rightfully feared were less permanent. Moreover, Bingham appears to have been one of the first to resurrect the term “Bill of Rights” to refer to the first ten amendments, thus, in Magliocca’s words, arguably recognizing “a whole greater than the sum of its parts” (p.115). Although Justice Hugo Black would later cite Bingham to justify Black’s support for “total incorporation,” Bingham probably came closer to the idea of “total incorporation plus,” as he accepted “the right to travel” and other rights as among what he considered to be privileges and immunities (p.117). Still, there may not be too much distance between Bingham and Black, since both were leery of excessively broad judicial interpretations. Magliocca observes that Bingham “did not accept the modern concept that the Supreme Court could uphold broad statutes with even broader opinions that changed the Constitution” (p.135). Moreover, at various points, Bingham favored both withdrawing judicial jurisdiction of certain key issues and of requiring a two-thirds vote to invalidate congressional legislation (p.140).
Although it seems clear that Bingham perceived the meaning of the privileges and immunities clause to have embraced such rights, Magliocca somewhat confuses the issue of when he came to [*488] this conclusion (see p.122), by mixing Bingham’s arguments prior to adoption of the Fourteenth Amendment with those made after its interpretation. Moreover, this reviewer was unable to ascertain from the discussion (and this may well be because of the deficiency of the evidence rather than of Magliocca’s account) the degree to which Bingham’s views did or did not reflect those of either the Congress as a whole or of the states that later ratified the Fourteenth Amendment. Interestingly, Bingham generally identified the Bill of Rights with the first eight – rather than the first ten – amendments, and he thought it applied with greater force to citizens than to noncitizens (p.127).
Magliocca portrays Bingham as a moderate when compared to Thaddeus Stevens and other Radical Republicans. Whereas they seemed to want to enact revenge, Bingham was willing to allow southern congressmen to be seated as soon as their states ratified the Fourteenth Amendment. After President Andrew Johnson opposed the Fourteenth Amendment, Bingham joined the efforts to impeach him, ending in a meandering speech that failed to explain why Johnson’s opposition to a proposed amendment amounted to a high crime or misdemeanor (p.149). Ironically, had Bingham won the argument, judges might have lacked the independence they required to enforce the Constitution. Politically, however, the trial appears to have convinced Johnson to moderate his own opposition to the Fourteenth Amendment.
Bingham subsequently worked for the adoption of the Fifteenth Amendment. Indeed he offered a version prohibiting “property” discrimination that might have made imposition of poll taxes less likely (p.156). The only time that Magliocca identified Bingham as indicating a belief in economic equality was when Bingham favored a provision in the Virginia state constitution providing for free textbooks for children (p.157). Bingham expressed some concern over full ambassadorial representation to the Vatican, but continued to support full religious toleration. Magliocca highlights the way that Bingham enigmatically deflected a question about woman’s suffrage by observing that he “was not the puppet of logic but the slave of practical politics” (quoted on p.160).
Bingham accepted a broad interpretation of WORCESTER V. GEORGIA (1832), a case involving federal protection of the rights of Native Americans against state encroachments, which suggested that he did not completely accept the state/private action dichotomy that has subsequently hobbled enforcement of the Fourteenth Amendment, and that the decision might be entitled to greater attention in interpreting it (p.162). He strongly supported the Enforcement Act, but ended his congressional career under the shadow of having cashed out stock connected to the Credit Mobilier Scandal and having participated in the notorious retroactive congressional Salary Grab.
After losing his party’s nomination for reelection in 1872, President Grant appointed him as the first American minister plenipotentiary to Japan, where he served honorably until 1884. Unfortunately, this sojourn isolated him from political currents at home, and he offered little by way of commentary on the Supreme Court decisions that were whittling down his prized amendment. [*489] He died, relatively penniless (Congress eventually voted him a small pension) in 1900, leaving a legacy that will continue to shine as long as citizens value equal protection of the laws.
This is a worthy biography that will illume, without settling, many of the controversies that surround interpretations of the Fourteenth Amendment. Magliocca appears to have done yeoman work in cobbling a biography from a wide range of speeches but fairly limited personal information, and he includes endnotes, a bibliography, and an index. Especially given the role that Dr. Martin Luther King, Jr. and the Southern Christian Leadership Conference later played in resuscitating the Reconstruction Amendments, this reviewer is intrigued by Bingham’s many references to scriptural principles – as, for example, his citations of the scripture in Acts 17:26 from Paul’s speech on Mars Hill that describes all nations as being from one blood – and his references to the Fourteenth Amendment as “the spirit of Christianity embodied in your legislation” (p.125) and as the embodiment of the “golden rule” (p.126). This reviewer does not, however, know whether sources exist that might have provided further information on the link between Bingham’s faith and his politics. Certainly, the picture that emerges from this book is much fuller than scholars have had to date.
Beauregard, Erving E. 1989. BINGHAM OF THE HILLS: POLITICIAN AND DIPLOMAT EXTRAORDINARY. New York: Peter Lang.
THE RECONSTRUCTION AMENDMENTS’ DEBATE: THE LEGISLATIVE HISTORY AND CONTEMPORARY DEBATES IN CONGRESS ON THE 13TH, 14, AND 15TH AMENDMENTS, Avins, Alfred, ed. Richmond, VA: Virginia Commission on Constitutional Government., 1967.
THE RECORDS OF THE FEDERAL CONVENTION OF 1787, 4 VOLS. Farrand, Max, ed. New Haven: Yale University Press, 1966.
WORCHESTER V. GEORGIA, 6 Pet. (31 U.S.) 515 (1832).
Copyright 2013 by the author, John R. Vile