Next month I will begin a series of talks on John Bingham to coincide with the publication of my book. As I reflect on what I will say, I keep returning to the idea that Bingham was America's most important legal formalist. That may sound like a strange claim to make about a politician, but hear me out.
Bingham's great contribution to the Constitution was Section One of the Fourteenth Amendment. He did many pragmatic things to get that text adopted and ratified, but was unwavering in his belief that an Article V amendment was essential to ensure justice. He was also deeply committed to the idea that getting the law correct was the way to advance racial equality. On both of these points, he faced the wrath of Thaddeus Stevens, who contended that these measures were not necessary and would not achieve Reconstruction's goals. To some extent, Bingham had a pragmatic response, which was that Stevens' program could not get through Congress or be sustained. For the most part, though, Bingham took the positions that he did because he had a formal view of the rule of law. His opposition to the Civil Rights Act of 1866 (a view shared by almost none of his Republican colleagues) as unauthorized by the original Constitution or the Thirteenth Amendment was an excellent example of his approach. In this sense, the longstanding argument over "radicals" vs. "moderates" during Reconstruction is misleading. Bingham was every bit as radical as Stevens. The divide that mattered was between pragmatists and formalists, and the formalists largely prevailed.
Today Reconstruction is seen as as a failure of formalism. Many paper rights were created, but they meant little in practice for one hundred years. Is that judgment correct? Without Section One of the Fourteenth Amendment, many subsequent advances would have been harder to achieve or would be viewed as less legitimate. And it always takes time to turn rights into reality, but that does not mean that enshrining aspirations (for example, "All men are created equal") is wrong. These are the kinds of questions that I hope people will ask themselves when they consider Bingham's life.