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

Notes

t 191 notes Notes to Introduction 1. See, e.g., Barry Friedman, “Reconstructing Reconstruction: Some Problems for Originalists (And Everyone Else, Too),” University of Pennsylvania Journal of Constitutional Law 11 (2009): 1207 (“Reconstruction, America’s Second Founding, remains curiously neglected as a subject of constitutional exploration .”); Jamal Greene, “Fourteenth Amendment Originalism,” Maryland Law Review 91 (2012): 978–1014 (providing a sophisticated argument about why lawyers pay relatively little attention to the debates surrounding the ratification of the Fourteenth Amendment). In this book, references to “the Confederacy ” or “the South” generally refer to the whites there who supported slavery or secession. There were, of course, some white southerners who refused to support either. 2. U.S. Const., amend. XIV, § 1. One reason why the Fourteenth Amendment may get less attention than the original Constitution is that there is no easily accessible source on the legal debates during Reconstruction. For the Constitutional Convention of 1787, people can look at James Madison’s notes or read The Federalist Papers and get a good sense of what the Founding Fathers thought. One goal of this book is to create a handy reference work about the Fourteenth Amendment, though there are limits to how much a book about one man can serve that purpose. 3. See Brown v. Board of Education, 347 U.S. 483 (1954) (holding that de jure racial segregation in public schools violates the Equal Protection Clause); Reed v. Reed, 404 U.S. 71 (1971) (holding for the first time that a statute that discriminated on the basis of sex denied equal protection); Baker v. Carr, 369 U.S. 186 (1962) (holding that a state’s unequal weighting of votes for legislative districts could not stand); Griswold v. Connecticut, 381 U.S. 479 (1965) (holding that a state could not prohibit the sale of contraception to married couples). 4. See Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1832) (holding that the Bill of Rights did not legally bind the states). The Fourteenth Amendment cases extending most of the Bill of Rights to the states are numerous and well settled. 5. See Greene, “Fourteenth Amendment,” 1001 (observing that Bingham is unknown because “his singular accomplishment was a failure in his lifetime”). 192 s notes to chapter 1 6. M.B.G., “Sketch of Hon. John A. Bingham,” New Hampshire Statesman, Feb. 13, 1863. Different accounts quoted in the book give varying descriptions of Bingham ’s eye color. 7. Allan Nevins, Hamilton Fish: The Inner History of the Grant Administration (New York: Dodd, Mead, 1936), 569. 8. See Charles Fairman, “Does the Fourteenth Amendment Incorporate the Bill of Rights?” Stanford Law Review 2 (1949): 26; John Harrison, “Reconstructing the Privileges or Immunities Clause,” Yale Law Journal 101 (1992): 1404 n.61. 9. While I strove for accuracy throughout this book, on occasion spellings in Bingham ’s speeches or letters were modernized for ease of reading. Notes to Chapter 1 1. See Charles A. Hanna, Historical Collections of Harrison County in the State of Ohio (New York: privately printed, 1900), 465; see also David O. Stewart, Impeached: The Trial of President Andrew Johnson and the Fight for Lincoln’s Legacy (New York: Simon and Schuster, 2009), 307 (stating that Bingham “lived long enough to see a distant cousin, William McKinley, elected president in 1896”). 2. The Bingham genealogy is drawn from Erving E. Beauregard, Bingham of the Hills: Politician and Diplomat Extraordinary (New York: Peter Lang, 1989), 1. Much of this family information is also in an unpublished paper by Milton L. Ronsheim, a collector of Bingham’s papers (Harrison County Historical Society). 3. See Hanna, Harrison County, 464 (stating that William Bailey was a “gallant soldier” who was captured by the British at Fort Washington). Esther’s mother, Mary Ann Duncan, was a Scottish immigrant and a Presbyterian who left money in her will for the building of a church in Philadelphia. See Beauregard, Bingham, 2. 4. For a complete account of Hugh Bingham’s career, see Richard L. Aynes, “The Anti-slavery and Abolitionist Background of John A. Bingham,” Catholic University Law Review 37 (1988): 887–92. Professor Aynes did the most thorough work on Bingham’s early years. 5. See History of Mercer County, Pennsylvania (Chicago: Brown, Runk, 1888), 654. A family history in the Bingham Papers describes Hugh Bingham as “one of the leading men of Mercer County.” Throughout the book, I use “Bingham Papers” to designate those held by the Ohio Historical Society. The Bingham Papers that are...