Who am I? I was a 19th century lawyer who got elected to Congress as an Abolitionist, was friends with Stanton and Chase, a Lincoln confidante, prosecutor of Mary Surratte, author of the first paragraph of the Fourteenth Amendment, the lead House manager in the impeachment of President Andrew Johnson and the second minister plenipotentiary to Japan, serving for 12 years.
I bet you don’t know. Or if you do, you can’t quite remember my name.
Clearly, well into the 21st century, most of us have no idea who this man was, much less his impact on the U.S. Constitution. Indeed, his legacy was buried during Reconstruction and his views of what he actually meant when he wrote paragraph 1 of the Fourteenth Amendment were suppressed by post Civil War conservatism both in the Supreme Court and by an American society which had become indifferent to its purpose.
His name was John A. Bingham. A native of western Pennsylvania, most of his youth and his entire professional life was based in Cadiz, Ohio, near the Pennsylvania state line.
Biographies about him are few. But I recommend the book I am reporting about here, American Founding Son, John Bingham and the Invention of the Fourteenth Amendment, by Gerard N. Magliocca, New York University Press (2013). The book is not long, primarily as the author says, because not many of his papers were saved or survived. Nevertheless, Magliocca does a very nice job with the material which was researchable. (The author is a law professor at the Indiana University McKinney School of Law.)
The book first recounts Bingham’s youth and early opposition to slavery. Even as a young debater he began thinking about the proper way to abolish it. Some of his early writings foreshadow the language of the Fourteenth Amendment. But he grew up. He became a lawyer and practiced law until elected to Congress in 1855 (still maintaining a part-time practice.) These were his Whig years, though leaning Republican. He adamantly opposed Chief Justice Taney’s Dred Scott decision. Yet his legislative power was modest due to the Whig split-up and demise. He lost his seat in 1863 and regained another in 1865 as a fiery Abolitionist Republican.
Magliocca observes Bingham’s role and legal theory in the trial of Mary Surratt. She was tried as a conspirator in Lincoln’s assassination. He is rightly not impressed with Bingham’s support for her (and others) being tried by a military commission. The civil courts were still open and could have processed the cases. Still, he quotes Bingham’s reasons and it is hard to say Bingham was wrong (or right) in his reasoning. Certainly the evidence against her was weak. A civil jury might well have found her not guilty.
Magliocca takes us through Bingham’s connections to Stanton and Chase. He also focuses on Bingham’s later attempts to restrain Thaddeus Stevens, who couldn’t see the merits of a Constitutional amendment, preferring a statutory and punitive route to Reconstruction—a route which could be repealed. Stevens’s opposition threatened the permanency of the amendment process.
Eventually, and Magliocca describes it pretty well, the Republicans accepted his language for the first paragraph of the Fourteenth Amendment. For those not having it handy:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.
It was the “No State shall make…” sentence which, clear to us today, got trampled first by Taney, and then subsequent Courts, despite the efforts of Taney’s successor, Chase, to put it right. Indeed, not until 1947 did that language get the life Bingham thought he had obtained. And, that life was first revived only by Justice Black’s dissent in Adamson v. California. It was not until the Warren Court that Black’s (and Bingham’s) view became dominant. Today, that “incorporation” of the Bill of Rights upon the states now reaches most of those enumerated rights.
And I cannot omit mentioning Bingham’s machinations to impeach Andrew Johnson. Johnson didn’t like the Fourteenth Amendment and did what he could to undermine it. Bingham was on his case and nearly pulled it off. The process did cow Johnson into backing off. Grant, of course succeeded Johnson, but was tepid in enforcing some of the Congressional acts of Reconstruction. He did, however, appoint Bingham as the ambassador and minister plenipotentiary to Japan.
Magliocca describes both Bingham’s Japan years and his retirement fairly succinctly. Bingham eventually died in Cadiz in 1900 at age 85.
All in all, this Bingham biography is worth reading. I’m sure Magliocca hopes that it will bring Bingham back from obscurity. Whether the book does so or not, Bingham deserves far more recognition than he has been given.
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I acquired my copy of the book through an interlibrary loan since my local county library did not have it. It is only in hardback at $33 or e-reader (Kindle at $14). So public libraries are reluctant to purchase it. If you want to read it, look hard. It will be worth it.
