Government by Judiciary. Raoul Berger

about the Bingham amendment.

      Far from accepting every word that fell from Bingham as gospel, the framers gave his proposal a chilly reception. According to Kendrick, he “stood almost alone . . . a great many Republicans, including particularly the entire New York delegation, were opposed to the amendment.” ³⁷ He tried to soften the opposition by arguing that to oppose his amendment was “to oppose the grant of power to enforce the bill of rights,” to perpetuate statutes of confiscation, of banishment, of murder.³⁸ Bickel considers that Bingham “was suggesting to those members who were alarmed that he had some definite evils in mind, limited and distinct in nature.” ³⁹ When we add: (1) the fact that Bingham’s amendment was shelved argues against adoption of his views;⁴⁰ (2) the fact that the Joint Committee’s subsequent rejection of Bingham’s motion to add to Owen’s proposed amendment the phrase “nor take private property for public use without just compensation” ⁴¹ is incompatible with blanket adoption of the first eight Amendments; (3) the fact that Bingham made no reference to inclusion of the Bill of Rights during debate on the final proposal which became §1 of the Amendment; (4) Wilson’s emphasis during debate that the Civil Rights Bill embodied the very civil rights embraced by due process protection of life, liberty, and property; and (5) Wilson’s assurances during that debate that “we are not making a general criminal code for the States” ⁴² (suggesting that what was unpalatable in the Bill would be no more acceptable in the Amendment)—it becomes apparent that beyond due process the framers had no intention to adopt the Bill of Rights.

      

      Bingham was in fact utterly at sea as to the role of the Bill of Rights. At first he considered it to be binding upon the States. Thus, after reading the due process clause of the Fifth Amendment as the source of his own proposed amendment, he stated: “this proposed amendment does not impose upon any State . . . an obligation which is not now enjoined upon them by the very letter of the Constitution.” ⁴³ For this he appealed to the “supremacy clause” of Article VI, which makes the Constitution binding,⁴⁴ hurdling the preliminary question whether the Constitution made the Fifth Amendment binding on the States. Although he noted that Barron v. Baltimore ⁴⁵ held that the Bill of Rights is “not applicable to and do[es] not bind the States,” ⁴⁶ he stated on February 28: “A State has not the right to deny equal protection . . . in the rights of life, liberty, and property.” On March 9 he stated:

      the care of the property, the liberty, and the life of the citizen . . . is in the States, and not in the Federal Government. I have sought to effect no change in that respect . . . I have advocated here an amendment which would arm Congress with the power to punish all violations by State officers of the bill of rights . . . I have always believed that protection . . . within the States of all the rights of person and citizen, was of the powers reserved to the States.⁴⁷

      Reservation of “protection” to the States runs counter to rejection of a State’s denial of an existing “right to equal protection”; it is incompatible with State “violations” of the Bill of Rights. Apparently unaware that Article IV, §2, protected nonresident migrants, not residents,⁴⁸ Bingham said: “No State ever has the right . . . to abridge . . . the privileges and immunities of any citizen of the Republic.” Shifting again, he stated: “we all agree . . . that the exercise of the elective franchise, though it be one of the privileges of a citizen of the Republic, is exclusively under the control of the States.” ⁴⁹ “Exclusive control” authorizes a State to “abridge” the privilege. In truth, as Morrison, concurring with Fairman, stated, Bingham’s “many statements . . . are so confused and conflicting as to be of little weight.” ⁵⁰ This goes beyond the issue of credibility, which courts test by inconsistent statements. It poses the question: upon which of his conflicting explanations did the framers rely? How can “conclusive” legislative history rest on shifting sands?⁵¹

      In the eyes of Justice Black, “Bingham may, without extravagance be called the Madison of the first section of the Fourteenth Amendment.” ⁵² Shades of Madison! Bingham was a muddled thinker,⁵³ given to the florid, windy rhetoric of a stump orator, liberally interspersed with invocations to the Deity,⁵⁴ not to the careful articulation of a lawyer who addresses himself to great issues. Recall his location of the words “equal protection” in the Constitution from which they were notably absent. Hale attributed to Bingham the view that “there had been from first to last, a violation of the provisions of this bill of rights by the very existence of slavery itself,” ⁵⁵ thereby, as Judge Hale doubtless was aware, converting the Bill into a repealer of several existing provisions that sanctioned slavery—and this in the teeth of the First Congress’ express intention to exclude the States from the ambit of the Bill of Rights.⁵⁶

      Presumably the framers who listened to Bingham found his frequent shifts of position no less perplexing than they seem to us; consequently, they had an added incentive to cling to the vastly preponderant view that they were merely incorporating the limited provisions of the Civil Rights Act in the Amendment. Whatever be the weight that attaches to Bingham’s utterances, it needs to be noted that even his admirers read them restrictively. So, Kelly states that his speech of February 29 “makes it clear that by ‘bill of rights’ Bingham meant both the guarantees of the comity clause and the guarantee of due process in the Fifth Amendment.” ⁵⁷ And tenBroek asks, “What Bill of Rights? Certainly not the first eight amendments to the Constitution. The answer is not left open to conjecture: the Bill of Rights that contain (1) the comity clause . . . which guarantees the privileges and immunities of citizens of the United States; (2) the due process clause of the Fifth Amendment; and (3) the requirement that all shall be protected alike in life, liberty, and property, not explicitly mentioned in either body or amendments . . . this was the ‘immortal Bill of Rights’ of John A. Bingham.” ⁵⁸ Among the abolitionists themselves there was general agreement only about the due process clause and the First and Fourth Amendments; the “rights in the other amendments,” tenBroek says, “received only casual, incidental, and infrequent reference.” ⁵⁹ Justice Black, therefore, would impute to Bingham views which far outran the abolitionist program that allegedly was the source of his inspiration. Before we marshall the evidence which further undermines attribution of Bingham’s views to the framers, let us consider the companion remarks of Senator Jacob M. Howard.

      By a caprice of fortune—the sudden illness of Chairman Fessenden—it fell to Senator Howard to act as spokesman for the Joint Committee in explaining the Amendment. Up to this point his participation in the debates on the Civil Rights Bill and the several aspects of the Amendment had been negligible. Poles removed from Chairman Fessenden, who “abhorred” extreme radicals, Howard, according to Kendrick, was “one of the most . . . reckless of the radicals,” who had “served consistently in the vanguard of the extreme Negrophiles.” ⁶⁰ He had expended “fruitless efforts” to include the right to vote; he and Elihu B. Washburne of Illinois “had been the only Republicans to hold out for black suffrage to the end, all the others proved willing to abandon it.” ⁶¹ That such a man should speak “for” a Committee in which the “non-radicals clearly outnumbered the radicals,” in which, by the testimony of the co-chairmen Fessenden and Stevens, there “was very considerable difference of opinion,” ⁶² needs to be taken, in the words of the “immortal” Samuel Goldwyn, with “a bushel of salts.”

      On May 23 Senator Howard rose in the Senate, alluded to Fessenden’s illness, and stated that he would present “the views and the motives which influenced the committee, so far as I understand [them].” After reading the privileges and immunities listed in Corfield v. Coryell, he said, “to these privileges and immunities . . . should be added the personal rights guaranteed and secured by the first eight amendments.” ⁶³ That is the sum and substance of Howard’s contribution to the “incorporation” issue. Justice Black assumed without more ado that Howard “emphatically stated the understanding of the framers.” ⁶⁴ No one, to be sure, rose to challenge Howard’s remark, casually tucked away in a long speech.⁶⁵ “The argument from silence,” as Alfred Kelly observed, “is always more than a little dangerous.” ⁶⁶ But was there really silence? Consider