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

Introduction: Measuring a Man

t 1 introduction Measuring a Man No biography of Bingham has ever been written and perhaps none ever will be. It is too late now. He has been in his grave for many years. Those . . . who knew him intimately and watched his public career and were received into his confidence are all gone. His family are scattered and his books and papers. All authentic records too are gone, save of some of his speeches in Congress, and a few others. . . . So there is little encouragement for anyone to attempt a life. Besides those who would purchase such a book are gone too. There could be now little inducement for the preparation of such a “life.” Walter Gaston Shotwell, 1927 Americans are of two minds about their past. When the subject is military history, the Civil War holds a special place in our national life. When it comes to political and legal history, the Founding Fathers and the birth of the Constitution are sacred. Most people know who Robert E. Lee and Alexander Hamilton were and want to learn more about them. Turn this pairing around, however, and a strange thing happens. Interest in the Revolutionary War is less common: George Washington is the only general who stands out. Likewise, the politicians who led the Civil War are largely unknown, except for Abraham Lincoln. This indifference to the civil side of the Civil War is unfortunate because the Confederacy’s defeat led to constitutional changes that were as profound as the ones launched in Philadelphia after our first civil war between royalists and patriots.1 The most striking example of neglect with respect to our Founding Sons is Congressman John Bingham of Ohio. In 1866, Bingham wrote 2 s introduction the following language that became part of Section One of the Fourteenth Amendment to the Constitution: 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.2 This is the most important sentence in the Constitution. It is the language that the Supreme Court used to desegregate the public schools, end discrimination against women, establish equal voting rights, and find the right to sexual privacy.3 The first section of the Fourteenth Amendment is also the text that extends most of the Bill of Rights to the actions of state governments, since the Founding Fathers believed that the first eight constitutional amendments—including the freedom of speech, the right to bear arms, and the right to a jury trial—applied to only the federal government.4 Yet the man who crafted the Fourteenth Amendment’s guarantees of liberty and equality, along with his understanding of what they were intended to do, was forgotten even before he died.5 Bingham’s invisibility is even more astounding given that he was at the center of almost every dramatic event that shook the Capitol in the 1860s. Not long after entering the House of Representatives in 1855, he became one of the strongest anti-slavery voices of the Republican Party. When Lincoln was murdered in 1865, Bingham was appointed as one of the prosecutors in the military trial of John Wilkes Booth’s alleged accomplices and delivered the closing argument against them. He was also the most influential leader in shaping the demands that the North made on the South before the ex-rebels could return to the Union, and when Lincoln’s successor, Andrew Johnson, sabotaged that policy, Bingham joined the team that prosecuted the president’s impeachment in the Senate and gave the closing argument there as well. All of this was in addition to his career as a lawyer, his skill as an orator, and a successful tenure as the U.S. ambassador to Japan in the 1870s and 1880s. Many who saw Bingham in action knew that he was touched by greatness. A profile published in 1863 described him in his prime: introduction t 3 In person he is spare, and rather slight; sharp in face and sharp all over, as well in mind as in body. Rather inclined to verbosity, he is, nevertheless , regarded on all hands to be one of the ablest debaters in the House, as he is beyond doubt the readiest speaker...