an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
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.
Consider Bingham's 14th Amendment formalism as it relates to incorporation of the Bill of Rights (or some of them). Over at PrawfsBlawg Kurt Lash has an interesting post on perhaps incorporating the 10th Amendment, well beyond Amendments 1 through 8, all of which have not been incorporated as yet. How formal is formalism when almost 150 years have elapsed since the ratification of the 14th Amendment?
In a comment on Bruce Ackerman's post at this Blog, I made reference to Alfred H. Kelly's "Clio and the Court: An Illicit Love Affair," 1965, Sup. Ct. Rev. 119. At pages 132-134, II. Adamson v. California Revisited Kelly discusses some of the 14th Amendment history that Gerard may be interested in for purposes of this post. (I assume Gerard is familiar with Kelly's essay, which I had earlier described as quite detailed on "law office history.")
(Kelly referred to the Warren Court as consisting of libertarians. I don't know if today's libertarians would be prepared to accept that categorization.)
A legal formalist need not be a member of a court. Legal formalism can be set forth in statutes enacted as well as the Constitution and Amendments thereto. I assume that Gerard referred to Bingham as "America's most important legal formalist" because of the care he took in framing the provisions of the 14th Amendment. Our SALADISTA may not accept Gerard's characterization, but why does our SALADISTA leap to the courts as a measure of Bingham? Was Bingham a legal formalist? He could have been even though the Reconstruction Era courts may not have been.
I was not addressing Gerard's characterization of Bingham, but rather the subsequent assertion that formalism failed because the courts did not enforce the Civil War amendments Bingham and others drafted.
Who sees Reconstruction as a failure of formalism? Reconstruction was a failure of political leadership. Lincoln's view was undeveloped at his death; Andrew Johnson's was designed to put his white friends in power; Congress' was to disestablish slavery and punish the South for the Civil War; Southerners' was to overcome the shame of not having servants and to resist social and political equality; former slaves wanted protection of their new rights (as did Grant) and free education. But equality fatigue, the power of big city Democratic machines, the lust for wealth, financial scandals, and the realpolitik of Hayes-Tilden brought an end to Reconstruction.
The Supreme Court's failure, in the Civil Rights Cases and Plessy v. Ferguson and similar cases, to enforce the 13th-15th Amendments was due to its own calculation that only military occupation would make that possible, and that was not in the cards. Justice Breyer makes much of Eisenhower's sending troops to Little Rock to enforce school desegregation, but would the Court have decreed desegregation if it knew that the Administration was not going to enforce it? I think not. The Court and the Executive were both driven by the Cold War need to deprive the Communists of a stick with which to beat the US in a world freeing itself from colonialism.
In a comment of mine on Prof. Ackerman's post at this Blog on National Security and the Speech and Debate clause, i asked:
"Query: Has the phrase 'shall not be questioned' in the Speech or Debate clause been compared to a similar phrase in the 14th Amendment's public debt clause? What does adoption history (respectfully 1789 and 1868) tell us about the original meanings of these phrases?"
I put this out as a silent teaser since the public debt/government shut-down issue may emerge shortly after Congress returns. Much of the language of the 14th Amendment had been subjected to previous testing of language in the Constitution, statutes and court decisions.
No one took the bait on my teaser. So I repeat it here as a test of legal formalism. How does the Court react to legal formalism? r.friedman's comment provides a good response. History is apparently not fixed in meaning as suggested by Jack Balkin in his recent article on new originalism and uses of history. The Court has not been consistent with history. Despite the efforts of Bingham et al with the 14th Amendment, its meaning as determined by the Court has ebbed and flowed with the political tides.
Sometimes the law precedes society in what is possible. The 14th Amendment was largely moot in its own day, but it created the necessary space in the law that society would be able to use later on once it had sufficiently advanced to recognize the justice of equal rights.