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
Abbe Gluck abbe.gluck 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 msl46 at law.georgetown.edu
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
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
I'm working on a biography of John Bingham, the primary drafter of the Fourteenth Amendment. While my research is not complete, I thought I'd provide an update on how things are going. Specifically, I want to share what I've learned so far that seems important.
First, Bingham attended Franklin College, which was one of the few racially integrated schools at the time. Furthermore, one of his closest friends there was Titus Basfield, an African-American who became a minister and a lifelong confident. These college years almost certainly played a significant role in shaping Bingham's viewpoint on racial issues. It also explains, I think, why he was collaborating with Salmon P. Chase as early as 1845 to combat slavery (I found a letter in the Chase Archives on this point).
Second, Bingham's image as a civil libertarian is at odds with his performance as a prosecutor in the Lincoln conspiracy trial and as a House Manager in Andrew Johnson's impeachment trial. In the Lincoln trial, Bingham put forward a broad interpretation of military jurisdiction and presidential authority to counter claims by the defendants that they were not receiving the protections of the Bill of Rights (e.g., jury trial). And in the Johnson Trial, he argued that the Alien and Sedition Acts were consistent with the First Amendment (largely to support his claim that Johnson had engaged in impeachable sedition by attacking Congress).
Third, I can find no statements by Bingham supporting segregation. That doesn't mean that he didn't (there is, after all, a voting record to scrutinize), but that omission strikes me as interesting. I want to take a closer look at his views about the Freedman's Bureau and other remedial measures for African-Americans to get a sense of his attitude towards race-conscious policies, but I have not formed a conclusion about that yet.
Fourth, Bingham wanted the Fifteenth Amendment to be much broader than what ended up in the text. Indeed, his proposal would have barred states from discriminating against voting based on religion or wealth (as well as race).
Finally, Bingham said nothing about the Fourteenth Amendment after he left Congress in 1873. Since he lived until 1900, this is quite odd. I am also beginning to think that his departure from Washington just as the Supreme Court was starting to interpret the text was rather important and suggests that the Credit Mobilier scandal, which sullied Bingham's reputation and helped end his political career, may be more important than we've thought. Posted
by Gerard N. Magliocca [link]