Legal Commentary

Every well-educated high school student in the United States has heard of James Madison, often because their school is named after Mr. Madison.  If pressed, a few of them might even be able to explain why Madison is an important figure in our country?s history?the so-called ?father of the Constitution,? Madison helped shape the original Constitution and he drafted the original Bill of Rights. 

In terms of individual rights, however, the Fourteenth Amendment arguably is even more important than the original Constitution and the Bill of Rights.  The vast majority of cases decided by state and federal courts which involve claims of individual freedom are directed at state government officials.  If anything, judicial protection of rights under the Fourteenth Amendment has had a feedback effect on judicial construction of rights under the original Bill of Rights.  Thus, if anyone can claim the title of ?father of American constitutional rights? it is not James Madison, but John Bingham?the man who drafted Section One of the Fourteenth Amendment.  Despite Bingham?s importance to modern constitutional freedom, however, most Americans have never heard of him.  There are no John Bingham High Schools.

Even among constitutional scholars, Bingham remains a controversial figure.  Some of the most influential constitutional scholars of the twentieth (and twenty-first) century have dismissed Bingham as a ?gasbag,? a ?windbag,? and a ?confused,? ?befuddled? and ?muddled? thinker.  Although  Bingham has his defenders, his odd and occasionally conflicting statements about the Fourteenth Amendment have made him seem less than a stellar spokesperson for what is arguably one of the most important provisions in the United States Constitution?even though he drafted the clause.  

In a recent paper, I defend John Bingham as both a principled constitutionalist and key figure in the adoption and public understanding of the Fourteenth Amendment.  However, before celebrating the man, one simply has to acknowledge that his initial statements about the first draft of the Fourteenth Amendment were, from a modern perspective, exceedingly odd.  To begin with, Bingham based his initial draft of Section One on the language of Article Four.  Here is Bingham?s first draft of what became Section One of the Fourteenth Amendment:

The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each state all the privileges and immunities of citizens in the several states (Art. 4, Sec. 2); and to all persons in the several States equal protection in the rights of life, liberty, and property (5^th Amendment?) [parenthesis in Cong. Globe].

This was not an attempt, however, to simply enforce the equal protection provisions of Article IV.  Bingham?s goal was to force the states to protect the rights listed in the first eight amendments to the Constitution.  Although Article IV spoke of privileges of citizens in the several states, Bingham believed the text should be read as if contained the additional words ?of the United States,? as in ? . . . all the privileges and immunities of citizens [of the United States] in the several states.?  This reading allowed Bingham to maintain that the clause protected privileges and immunities which citizens held by reason of their federal citizenship?in particular rights enumerated in the Constitution such as those listed in the first eight amendments.

For years, scholars have struggled to understand Bingham?s ?ellipsis? reading of Article IV.  Critics use it to bash the odd and ?muddled? thinking of John Bingham.  Scholars who wish to rely on Bingham?s statements regarding the Bill of Rights tend to downplay or ignore altogether Bingham?s initial ?ellipsis? reading of Article IV.  The end result is a critical mass of scholarship that takes either a critical or embarrassed approach to the full record of public statements by the man who gave us Section One of the Fourteenth Amendment.  This is not the stuff of which high school dedications are made.

I believe, however, that both critics and advocates of John Bingham and his views of Section One have been, at most, only half correct.  Bingham did initially have an odd and idiosyncratic view of Article IV.  However, when confronted with his error, Bingham realized his mistake and withdrew his initial proposal.  His second draft abandoned the language of Article IV and instead expressly protected the privileges or immunities of citizens of the United States.  In future posts, I?ll explain why Bingham made the change and why he truly deserves to be known as the father of American individual liberty.