American Founding Son: John Bingham and the Invention of the Fourteenth Amendment

7. The Fourteenth Amendment

108 s 7 the fourteenth amendment Congressman Bingham may, without extravagance, be called the Madison of the first section of the Fourteenth Amendment. Justice Hugo L. Black, 1947 John Bingham’s great contribution to constitutional democracy was Section One of the Fourteenth Amendment, which committed the nation to fair and equal treatment for all.1 As a member of the Joint Committee on Reconstruction in Congress, he wrote the key language of Section One and led the fight for its ratification in the House.2 With respect to the meaning of this new text, Bingham expanded on the ideas that he laid out in the 1850s by arguing for the application of the entire Bill of Rights to all of the states, which was a conceptual leap from the vision of the Founding Fathers.3 While the views of one man do not control the interpretation of the Fourteenth Amendment, there is much to learn from Bingham’s speeches in and out of Congress in 1866 about the privileges or immunities of citizenship, due process of law, and the equal protection of the laws.4 Nation-Building in the South The problems confronting the federal government following Lee’s surrender to Grant were daunting. Some of these issues were closely connected to the war itself. For example, what would happen to the debt racked up by the Confederacy? Would the defeated states contribute to the payment of the Union’s debts? And what would be done with the rebel leaders? Other questions focused on the implementation of emancipation. Should former slave owners be paid for the loss of their property? How should national citizenship be defined? Would African the fourteenth amendment t 109 American men receive the right to vote? And what financial or institutional assistance should be given to the freed slaves to make up for what Lincoln called “the wealth piled by the bondsman’s two hundred and fifty years of unrequited toil”?5 The most important question involved the conditions to be imposed on the seceded states as the price of readmission. President Johnson and Congress agreed that the Confederate States could not just say “never mind” and return to the Union as they were before the war began. They vehemently disagreed, though, on what they should be required to do as penance for treason. The president’s view was that the South must only (1) ratify the Thirteenth Amendment, (2) swear its loyalty to the United States, and (3) repudiate the Confederate debt.6 While Johnson had opposed secession as a senator and supported the war, he was a former slave owner who believed in white supremacy and wanted a quick restoration of the Union.7 Most Republicans, by contrast, felt that the South should be compelled to do more to protect the freed slaves. George Atzerodt’s failure to carry out Booth’s order to murder Johnson put the nation on a collision course between the president and Congress.8 Back in Cadiz, Bingham ventured into these deep waters for the first time in a speech delivered in September 1865.9 He began by dismissing the claim that the former Confederate States possessed all the rights of loyal states, because this would “rob the victorious government of the United States of the right which, by the American laws of war and the general judgment of mankind, belongs, to every victorious nationality, to dictate terms to the conquered.” For example, he did not believe that they had “the right to send to the incoming congress representatives and senators,” especially since many of those leaders would be well-known traitors. Moreover, he noted that if these states were given the unrestricted right to vote on constitutional amendments, then the Thirteenth Amendment could not receive the approval of the three-quarters of the state legislatures necessary for ratification.10 Bingham held that the South should not be “restored except upon conditions of security for the future, if not also indemnity for the past.”11 Chief among those guarantees was that every “natural born citizen of the United States” was “entitled to all the privileges and immunities of citizens.”12 110 s the fourteenth amendment The Second Constitutional Convention In December, Bingham returned to Washington for the most important Congress since the first one in 1789. The session began in dramatic fashion, as the clerk of the House, under the watchful eye of Thaddeus Stevens, refused to...