THE INTENT OF THE FRAMER: JOHN BINGHAM'S FOURTEENTH AMENDMENT.

• Author: Zuckert, Michael
• Position: Constitutional Reconstruction: History and the Meaning of the Thirteenth, Fourteenth, and Fifteenth Amendments

It is not often that a single individual is responsible for constitutional provisions as important as Sections 1 and 5 of the Fourteenth Amendment. By "responsible" I mean that John Bingham, Republican congressman from Ohio, was the author of the text of these Sections (with the exception of the opening definition of citizenship). He was not, of course, solely responsible for the Amendment as it became part of the Constitution, in that he shared responsibility with at least the two houses of Congress and the state ratifiers. But his unique role in supplying the text of the Amendment leads me to my project in this Essay: not to engage in a study of original intent, or original public meaning, or however we wish now to characterize the originalist project, but to engage in a quest for Bingham's Amendment, for understanding the Amendment as he understood it. Whether this gives us an authoritative reading of the Amendment for the purposes of constitutional interpretation and adjudication is a separate issue, one that I will, at most, only touch on here. I wish to treat Bingham as an author and the text of Sections 1 and 5 as one would treat a text in political philosophy or constitutional theory by any author. Obviously, the Amendment understood as he understood it should have some bearing on the official or legal meaning of the Amendment, but, as I said, that is a somewhat separate question.

In treating Bingham as an author or even as a poet, whose poem was the text of Sections 1 and 5, I do not mean to treat him as a complete solitaire. He developed his text in colloquy with colleagues in the House and on the Joint Committee on Reconstruction, but I am thinking of these other participants as equivalent to, say, Ezra Pound in "The Waste Land" of T.S. Eliot, sounding boards and perhaps advisors on the rhyme scheme.

I have a partly personal reason for my project in this Essay. Many years ago, I submitted to a law review an article on the Amendment, which drew substantially on Bingham. Alas, the article was rejected with the student editor's comment that everyone knows Bingham was an incoherent thinker and a bloviating speaker and thus almost completely unreliable as a constitutionalist. That view no longer holds in the literature. Most recent studies of the Amendment's origins rely heavily on Bingham and treat him with respect. But they consider him as part of their quest for the original public meaning of the Amendment and therefore do not centrally aim to bring out his understanding of his handiwork. My focus is thus different from most of the recent and past literature and my argument is different as well. I differ in my emphases, most notably, in attending to Bingham's early antebellum constitutional thinking. Among other things, this focus leads me to diminish the role of the Privileges or Immunities Clause in Bingham's thinking. While other recent scholars give pride of place to that Clause, I emphasize far more his concern with what became the Equal Protection and Due Process Clauses.

My different emphases are related to one of my chief concerns-to explain a puzzling claim made by Bingham during the debates on the Amendment. Very early in the Thirty-Ninth Congress Bingham forecast for the House of Representatives an amendment then under consideration by the Joint Committee on Reconstruction, of which he was a member. That committee, he told the House,

has under consideration [a] general amendment to the Constitution which looks to the grant of express power to the Congress of the United States to enforce in behalf of every citizen of every State and of every Territory in the Union the rights which were guarantied to him from the beginning, but which guarantee has unhappily been disregarded by more than one State of this Union, defiantly disregarded, simply because of a want of power in Congress to enforce that guarantee. (1) Bingham refers here to an early version of what became the Fourteenth Amendment, which differed from the adopted version in one particularly striking way: it directly provided Congress with the power to protect rights rather than forbade States from abridging rights or arbitrarily depriving citizens of the objects of their rights. (2)

Somewhat later in the debates, speaking of a draft amendment still cast as an empowerment of Congress but substantively even closer to the amendment as ultimately adopted, Bingham made the same point in somewhat different language:

I ask the attention of the House to the . . . consideration that the proposed amendment does not impose upon any State of the Union, or any citizen of any State of the Union, any obligation which is not now enjoined upon them by the very letter of the Constitution. (3)

Finally, in the debate on Sections 1 and 5 in the form taken by the adopted amendment (sans the opening definition of citizenship) he again stated:

There was a want hitherto, and there remains a want now, in the Constitution of our country, which the proposed amendment will supply. What is that? It is the power in the people, the wholepeople of the United States, by express authority of the Constitution to do that by congressional enactment which hitherto they have not had the power to do . . . that is, to protect by national law the privileges and immunities of all the citizens of the Republic and the inborn rights of every person within its jurisdiction whenever the same shall be abridged or denied by the unconstitutional acts of any State. (4)

The amendment enacts provisions to prevent the States from abridging rights, but the rights themselves have been present in the Constitution before the amendment:

[T]his Amendment takes from no State any right that ever pertained to it. No State ever had the right, under the forms of law or otherwise, to deny to any freeman the equal protection of the laws or to abridge the privileges or immunities of any citizen of the Republic, although many of them have assumed and exercised the power, and that without remedy. (5)

Let us call this the theory of preexisting (personal) rights and (state) obligations. This is puzzling because the Amendment does indeed seem to add previously nonexistent rights protections and state obligations to the Constitution. I argue below that the key to understanding this theory of preexisting rights and obligations, and thus to Bingham's theory of the Amendment, lies in his pre-Civil War constitutional pronouncements.

I thus spend much of my space on the antebellum Bingham and by most standards scant the actual debates on the Amendment in the Thirty-Ninth Congress. But I try to show briefly at the end how the materials gleaned from his earlier pronouncements supply a key to Sections 1 and 5 of the Amendment as he understood them.

1. POLITICAL PHILOSOPHY

   Bingham was no constitutional virgin when he came to draft the Fourteenth Amendment. He had entered Congress in 1855 and was immediately swept up in constitutional and even philosophical debates raised by the controversies over slavery in the territories. Recent studies of the Fourteenth Amendment begin with surveys of "The Farly Origins of Privileges or Immunities," (1) ' or "On Antebellum Privileges and Immunities." (7) This being a study of Bingham's constitutional thought, I begin with Bingham himself. There is actually very little to no evidence that he knew of, or paid attention to, the prehistory of privileges and immunities that recent scholars so much concern themselves with. (8) Bingham's earliest expressions that appear relevant to the Fourteenth Amendment occur rather in the context of congressional debates over slavery in the territories. At issue was not legislation in the ordinary sense but matters revolving on the admittance of Kansas and Oregon to the Union, a distinction important for grasping Bingham's constitutional arguments. In the case of Kansas, Bingham sided with his fellow Republicans and opposed the Lecompton Constitution;' (1) in the case of Oregon, the Republican Party split and his side lost in opposing the admittance of Oregon. (10)

   Although Bingham happily engaged in nitty-gritty constitutional exposition, he regularly rooted it in normative political philosophy. He understood the basics of political philosophy very similarly to the way in which the American Founders and his fellow Republicans did: in terms of the natural rights and social compact theory of government as developed preeminendy by John Locke. As Bingham said in 1857,

   [t]he Constitution is based upon the EQUALITY of the human race .... A State formed under the Constitution, and pursuant to its spirit, must rest upon this great principle of EQUALITY. Its primal object must be to protect each human being within its jurisdiction in the free and full enjoyment of his natural rights. . . . [T]he rights of human nature belong to each member of the State, and cannot be forfeited but by crime."

   In his speech on Oregon, he repeated that thought almost verbatim and added to it the affirmation of "natural rights [as] those rights common to all men ... to protect which, not to confer, all good governments are instituted." (12) Clearly he is referring to the same philosophy of government that found expression in the Declaration of Independence: men are created equal in the sense that no human being has a natural or divine right to rule another, but insecurity of rights without rule is so severe that the equal individuals recognize that a body with coercive power, government, is necessary to cure the rights insecurity of life without government. (13)

   The task of government follows for Bingham from this account of its origins: "to establish justice, to promote the general welfare, and to secure to each and every person . . . the absolute enjoyment of the rights of human nature, which are as imperishable as the human soul, and as universal as the human race." (14) From the original equality of all and the task of securing rights follows the standard that...