When Legislators Actually Mattered
By Laurie L. LevensonFebruary 6, 2014
American Founding Son by Gerard Magliocca
PROFESSOR GERARD MAGLIOCCA spares no detail in his comprehensive review of John Bingham’s life and his drafting of the 14th Amendment to the Constitution. For history buffs, constitutional scholars, and civil war experts, the book is a smorgasbord of facts about a critical period in America’s history. The reader is taken step by step through the political and legal hurdles required to enact one of the most significant post–Bill of Rights provisions of our Constitution.
The 14th Amendment makes America the country it is today. Without it, Reconstruction following the Civil War was unlikely to have succeeded. Without it, there would be no limits on the states’ ability to restrict freedoms of speech and religion, nor any guarantee that local law enforcement would honor citizens’ rights against unreasonable search and seizure.
Yet, the importance of this book is not just in what it teaches about the meaning of the 14th Amendment. Magliocca’s greatest contribution lies in simply reminding us that there was a time in America’s history — a tumultuous but glorious time — when statesmen actually did their jobs. They not only drafted laws that protected the Republic, but also crafted constitutional provisions that had grand and lasting effect. Congress held the future of America in its hands, but did not become paralyzed. National leaders, such as John Bingham, thought big, and they had the skill and wherewithal to do all the work necessary to ensure that our federal government had the tools to protect everyone’s basic rights, especially those of the newly freed slaves.
The 14th Amendment
John Bingham’s legacy is expressed in the first section of the 14th Amendment. If average citizens were asked what that section provides, a glazed look would likely appear on their faces. Civics books today may teach about the First or Fifth Amendments, but the 14th is rarely recognized as a significant guarantor of our basic rights today.
Section 1 of the amendment provides:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
What do these words do? The first sentence, which actually was not written by Bingham, overruled the Supreme Court’s infamous Dred Scott decision by declaring all American-born persons of African descent citizens. The remainder of Section 1 imposed obligations on the states. No longer could they abridge the privileges or immunities of citizens; no longer could they deprive persons of life, liberty, or property without due process; no longer could they deny persons the equal protection of laws. In other words, states — including the former Confederate states that were to be readmitted into the Union — must adhere to the basic principles of the Constitution. Section 5 of the 14th Amendment then gave Congress the power to enforce these rights with legislation. Thus, America began its long journey toward recognizing the rights of all of its citizens.
The 14th Amendment did not, however, accomplish everything Bingham hoped it would. Bingham wanted an amendment that would automatically require the states to follow the Bill of Rights. The 14th Amendment did not immediately accomplish this goal; instead, it took many more decades for the Supreme Court to apply the bulk of those rights to the states. The 14th Amendment also failed to protect African Americans in the South from lynchings and other attacks by private individuals who terrorized them. It also did not initially guarantee voting rights for all, especially for women. But it was a start — a very important start that gave subsequent leaders, including Martin Luther King Jr., the foundation for securing those rights. Eventually, the amendment was used to desegregate the public schools, carry the movement to end discrimination and provide voting rights, and develop recognition of the right to sexual privacy.
For Bingham, the “vital principle of our government” was “the equality of the human race.” That was the “holy Temple of Freedom.” Today, much lip service is given to ideas of equality. For Bingham, it was his reason for living. It was his legacy.
John Bingham — The Statesman
Magliocca’s book is not just a study in constitutional law. It is a study in what makes a legislator into a statesman. There is a difference between a person who holds a seat in Congress and one who dedicates his life to using the political process to create a better future, a better Republic. Bingham lived that life. Yet, as Magliocca notes, Bingham was “forgotten even before he died.”
Bingham lived through the important moments that defined America before, during, and immediately after the Civil War. As soon as he entered the House of Representatives in 1855, he was one of the strongest antislavery voices of the Republican Party. When Abraham Lincoln was shot, he was one of the prosecutors at the military trial of the assassination conspirators. And the man could talk. His closing argument was described as a “spellbinding performance that lasted two days,” leading one observer to comment that Bingham’s “invective burned and seared like hot iron.” He was a friend of George Custer, for whom he served as a reference when Custer was having difficulties getting into West Point due to sexual escapades. He served as a prosecutor in the impeachment trial of Andrew Johnson, and ultimately went on to become ambassador to Japan.
But, foremost and always, Bingham was a statesman. Possessed of superb debating skills, he pushed his antislavery agenda through decades of legislative sessions. Bingham’s rise to power began during the 1854 debate over the Kansas-Nebraska Act. The bill sought to expand slavery into the territories, thereby repealing the 1820 Missouri Compromise. Bingham began then a lifetime pursuit of interpreting and arming the Constitution to prohibit slavery.
Bingham argued that because the word “slavery” was not in the Constitution, it was clear that the Founding Fathers intended that the institution should die. He further argued that Congress had broad authority to regulate the territories under Article IV, Section 3, of the Constitution. He argued that the states were unequal with respect to rights and that the federal courts could invalidate laws in some states that were constitutional in the original 13. Ultimately, Bingham’s position boiled down to the argument that the Constitution did not permit racial distinctions with respect to fundamental rights. He said:
You will search in vain, in the Constitution of the United States, for the word white; it is not there. You will look in vain for it in the first form of National Government — the Articles of Confederation; it is not there. The omission of this word — this phrase of caste — from our national charter, was not accidental, but intentional.
Despite his fervent belief that the fundamental rights of all Americans were protected by the Constitution, he did not include suffrage in those rights. He viewed the constitutional right to vote as a political right and believed that states retained the right to regulate which of their citizens could vote. As such, not only did he not believe that the Constitution guaranteed blacks the right to vote, he also did not support the argument that women had the fundamental right to vote.
Bingham also did not believe that all rights were guaranteed during wartime. Thus, the man who fought so hard to guarantee fundamental rights for blacks also helped draft the Habeas Corpus Suspension Act of 1863, which authorized the use of military commissions for civilians, rather than jury trials, during the Civil War.
However, when it came to nation-building after the Civil War, Bingham’s recipe was simple: he embraced the 14th Amendment as the perfect answer. The amendment would require states, including Southern states, to respect the privileges and immunities of all citizens. He argued that the states had always been ethically or morally obligated to enforce the other provisions of the Constitution, including its first 10 amendments, collectively known by the magic phrase, “the Bill of Rights.” His opponents were formidable, including President Johnson, who would not accept the 14th Amendment and used all his powers to block its ratification. Bingham also battled against Congressman Thaddeus Stevens, who sought more punishment of the Confederate states.
In the end, Bingham succeeded. But although the 14th Amendment was ratified, Bingham could not declare complete victory. Instead of interpreting the amendment as extending the Bill of Rights to the states, the Supreme Court, in the Slaughter-House cases, gave a narrower list of what would count as national “privileges or immunities.” The Supreme Court also ruled, in United States v. Cruikshank (1876), that nothing in the 14th Amendment protected against the encroachment of one citizen’s rights by another citizen. Thus, while blacks were no longer slaves, and the 14th Amendment would one day become the basis for greater civil rights, the South continued a legacy of lynchings and other violations well beyond Bingham’s lifetime. New laws — civil rights laws — by new leaders were needed. But, at the very least, Bingham had paved the way.
As the pastor of an African Methodist Episcopal Church said at his eulogy in 1901, Bingham was not an idle dreamer or fanatic. Rather, he was a “truehearted, fearless, faithful champion of the bondsman and invincible defender of those principles which mean the fulfillment of the highest ideals consistent with truth, honor, justice, and liberty.” He was a Congressman who got things done. He had a calling to serve and he did. He did not engage in stalling tactics; he persuaded and acted. That, by itself, is an example today’s legislators should consider following.
Ultimately, American Founding Son’s sum is greater than its parts. Magliocca has created a book jammed with information and firsthand sources. History buffs will love it, and Civil War connoisseurs will embrace it. However, in the end, its message is for everyone. Words with meaning can be the best legacy a person can leave behind, even if no one ever remembers your name.
While in law school, Laurie Levenson was chief articles editor of the UCLA Law Review. After graduation, she served as law clerk to the Honorable James Hunter III of the United States Court of Appeals for the Third Circuit. In 1981, she was appointed assistant United States Attorney, Criminal Section, in Los Angeles, where she was a trial and appellate lawyer for eight years and attained the position of senior trial attorney and assistant division chief. Levenson was a member of the adjunct faculty of Southwestern University Law School from 1982 to ’89. She joined the Loyola faculty in 1989 and served as Loyola’s associate dean for academic affairs from 1996 to ’99. She has been a visiting professor at UCLA School of Law and a D & L Straus distinguished visiting professor at Pepperdine University School of Law. Levenson currently leads the following programs at Loyola Law School: Capital Habeas Litigation Clinic, The Fidler Institute annual symposium, and the Project for the Innocent.
LARB Staff Recommendations
SINCE I WRITE a lot about affirmative action, a number of my friends told me about Randall Kennedy’s new book even before it appeared, urging me to read it. Kennedy, a professor at Harvard Law School and an African American, ...
The law is founded on violence....
Did you know LARB is a reader-supported nonprofit?
LARB publishes daily without a paywall as part of our mission to make rigorous, incisive, and engaging writing on every aspect of literature, culture, and the arts freely accessible to the public. Please consider supporting our work and helping to keep LARB free.