- American Founding Son: John Bingham and the Invention of the Fourteenth Amendment by Gerard N. Magliocca
In a culture that emphasizes “original intent” and lionizes the drafters of the key texts that formulated the American system of government and the important principles of liberty and equality, it is strange that John A. Bingham, the primary author of section 1 of the Fourteenth Amendment, is so obscure.
Basic constitutional literacy demands familiarity with Bingham. It is hard to imagine a student of the Declaration of Independence who does not know of Thomas Jefferson, or of the Constitution who does not know of James Madison. Unfortunately, Bingham’s invisibility as a constitutional hero mirrors current political and legal amnesia about how the Fourteenth Amendment fundamentally reordered how the Constitution protects liberty and equality.
Bingham might be remembered for any one of his roles—drafter of the Fourteenth Amendment, key member of the Joint Committee on Reconstruction, prosecutor of coconspirators in the Lincoln assassination, prosecutor of the impeachment of Andrew Johnson in the Senate, first American minister plenipotentiary (ambassador) to Japan—rather than forgotten for all of them. Bingham was a prominent Republican who had great influence on the press, polity, and politicians of his time.
Although politically astute, Bingham was more statesman than skilled political operative, who placed principles ahead of political ambitions. He repeatedly failed to win selection as a senator by the Ohio General Assembly, lost reelection to Congress in 1862 because of his racial egalitarianism, and [End Page 169] then refused a federal judicial appointment in Florida because it was a slave state. His twelve-year service in Japan beginning in 1873 removed him from the national stage at the very time that his life’s work on the Fourteenth Amendment and Reconstruction was being decimated by the Supreme Court, southern opposition, and northern exhaustion.
Bingham’s failure to write a sought-after autobiography enabled his ideas as well as his life to be lost to a culture now dependent upon personalizing constitutional ideas. Worse, those ideas were distorted terribly by the Dunning School portrayal of Reconstruction and of Republicans as self-dealing practitioners of a tawdry politics of vengeance, C. Vann Woodward’s insistence on the politically and racially conservative tendencies of the Fourteenth Amendment and “moderate” Republicans, and Charles Fairman’s dismissive portrayal of Bingham’s complex and consistent thoughts and arguments about constitutional meaning. Magliocca’s frankly political biography embodies Bingham and his ideals sufficiently to correct the record with “considerable explanatory force.”1
But Magliocca seems not to appreciate fully the explanatory force of the man’s personhood. The reader can construct an overall effect from the limited personal information in the book to discern a forceful man whose notable accomplishments coexisted with a generous and conciliatory spirit, modesty, and carefulness. He was motivated by racial egalitarianism and a fervid constitutionalism that he pursued doggedly. Bingham’s personal story—his working-class upbringing; his longtime friendship with fellow student Titus Basfield, a former slave; the early deaths of six of his eight children; his mentorship of Lucas, an African American young man; his care for Lucas’s son; the kind ordinariness of his retirement persona—helps explain both that he “never said anything positive about white supremacy” and “never expressed bitterness” toward the “South or the Southern people” (16, 183). These experiences also formed the basis for his ability to “seek common ground,” because “statesmen cannot well afford to ignore [the principle]; that if you cannot obtain what you would obtain, then you should take what you can get” (83). This generous spirit helps account for Bingham’s success at bridging some of the most difficult political terrain in U.S. history.
Magliocca strives to present a balanced view of Bingham and to avoid the hagiography often present in public biographies of “great men.” After the South’s resistance to the Compromise of 1850, Bingham’s twin principles coalesced: the South would “strike down Liberty by Secession,” but the North would “betray...