My last post inspired me to return to my discussion of the Fourteenth Amendment and Incorporation.John A. Bingham (R. – Ohio) was a member of the Joint Committee on Reconstruction and the principal author of the Amendment. By contemporary Republican standards, he was no radical. Several modern scholars have ranked him as moderate or mildly conservative in relation to his Republican colleagues. He gave several speeches. To keep this post manageable, I will focus here on one of them, given on February 28, 1866.
At that point, Section 1 of the proposed Amendment had not reached its final form. As of February 28, 1866, it read as follows:
“The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States, and to all persons in the several States equal protection in the rights of life, liberty, and property.”
In his speech of February 28, Rep. Bingham made clear that he regarded the amendment as giving Congress the power to enforce the Bill of Rights against the States. After a brief introduction, he squarely stated the issue as follows:
“The proposition pending before the House is simply a proposition to arm the Congress of the United States, by the consent of the people of the United States, with the power to enforce the bill of rights as it stands in the Constitution today.”
He then turned to the question why the amendment was even necessary. Republicans almost universally believed that the Bill of Rights already applied to the States, and that Congress naturally had the power to enforce it. Unlike his less sophisticated colleagues, however, Bingham was aware of Barron v. Baltimore and its progeny. He pointed directly to Barron and another Supreme Court case, which had held that provisions of the Bill of Rights (the Fifth Amendment and the Seventh Amendment) were not binding on the States:
“A gentleman on the other side interrupted me [in debate recently] and wanted to know if I could cite a decision showing that the power of the Federal Government to enforce in the United States courts the bill of rights under the articles of amendment to the Constitution had been denied. I answered that I was prepared to introduce such decisions; and that is exactly what makes plain the necessity of adopting this amendment.
“Mr. Speaker, on this subject I refer the House and the country to a decision of the Supreme Court, to be found in 7 Peters, 247, in the case of Barron vs. The Mayor and City Council of Baltimore, involving the question whether the provisions of the fifth article of the amendments to the Constitution are binding upon the State of Maryland and to be enforced in the Federal courts. The Chief Justice says:
“’The people of the United States framed such a Government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this Government were to be exercised by itself; and the limitations of power, if expressed in general terms, are naturally, and we think necessarily, applicable to the Government created by the instrument. They are limitations of power granted in the instrument itself, not of distinct governments, framed by different persons and for different purposes.
“’If these propositions be correct, the fifth amendment must be understood as restraining the power of the General Government, not as applicable to the States.’
“I read one further decision on this subject – the case of the Lessee of Livingston vs. Moore and others, 7 Peters, page 551. The court, in delivering its opinion, says:
“’As to the amendments of the Constitution of the United States, they must be put out of the case, since it is now settled that those amendments do not extend to the States; and this observation disposes of the next exception, which relies on the seventh article of those amendments.’”
Invoking the ghost of Daniel Webster, Bingham then explained that he believed the Supreme Court was wrong, but only in part. Alluding to the Supremacy Clause and the Oaths Clause (Article VI, Clause III, which requires that all State officials “shall be bound by Oath or Affirmation, to support this Constitution”), Bingham explained that, in his view, the Constitution bound the States just as it bound the Federal government. The problem, Bingham believed, was that the Constitution contained no effective enforcement mechanism that penalized State officials for violating their oaths. There was a “right”, but no “remedy,” making the Bill of Rights “a mere dead letter.” The purpose of the amendment was to supply that enforcement mechanism.
[Aside: We have seen this “right but no remedy” argument, in a different context, before. Before the War, Salmon Chase and others had argued, in effect, that the Fugitive Slave Clause conveyed a right on the slave states, but that they had no remedy if free states refused to turn over fugitive slaves.]
“Why, I ask, should not the ‘injunctions and prohibitions,’ addressed by the people in the Constitution to the States and the Legislatures of States, be enforced by the people through the proposed amendment. By the decisions read, the people are without remedy. It is admitted in the argument of Mr. Webster, just cited, that the State Legislatures may by direct violations of their duty and oaths avoid the requirements of the Constitution, and thereby do an act which would break up any government.”
[I would add here that Bingham’s understanding of the Constitution was almost certainly wrong as a historical matter. Neither the Supremacy Clause nor the Oaths Clause bound State legislators to pass State laws that did not violate the Bill of Rights (or any other requirements of the Constitution that did not expressly apply to the States). That, however, is irrelevant. Bingham’s understanding, or misunderstanding, was a common one; indeed it represented the mainstream Republican view.]
Bingham then continued as follows, in a passage that emphasized that the proposed amendment supplied no new rights (because the Bill of Rights, properly construed, already applied to the States), but rather an enforcement mechanism for those rights (emphasis added):
“Those oaths have been disregarded; those requirements of our Constitution have been broken; they are disregarded to-day in Oregon [more about Oregon in another post]; they are disregarded to-day, and have been disregarded for the past five, ten, or twenty years in every one of the eleven States recently in insurrection.
“The question is, simply, whether you will give by this amendment to the people of the United States the power, by legislative enactment, to punish officials of States for violation of the oaths enjoined upon them by their Constitution? That is the question and the whole question. The adoption of the proposed amendment will take from the States no rights that belong to the States. They elect their Legislatures; they enact their laws for the punishment of crimes against life, liberty, or property; but in the event of the adoption of this amendment, if they conspire together to enact laws refusing equal protection to life, liberty, or property, the Congress is thereby vested with power to hold them to answer before the bar of the national courts for their violation of their oaths and of the rights of their fellow-men. Why should it not be so? That is the question. Why should it not be so? Is the bill of rights to stand in our Constitution hereafter, as in the past five years within eleven States, a mere dead letter? It is absolutely essential to the safety of the people that it should be enforced.
* * *
“Is it not essential to the unity of the people that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States? Is it not essential to the unity of the Government and the unity of the people that all persons, whether citizens or strangers, within this land, shall have equal protection in every State in this Union in the rights of life, liberty and property?”
A few minutes later, Bingham was even more explicit as to what his understanding of the Constitution was. In the process, he made clear that he equated “the privileges and immunities of citizens” with “these provisions of the bill of rights.” Specifically citing the Supremacy Clause and the Oaths Clause, Bingham explained that the Framers had placed an obligation in the Constitution – the obligation of State officials to honor the Constitution. They had even placed in the Constitution an enforcement mechanism of sorts – the final portion of the Supremacy Clause, which provided that “the Judges in every State shall be bound thereby [i.e., by the Constitution], any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” What the Framers had failed to do was provide an effective enforcement mechanism, namely power in the Congress to enforce those obligations and rights. The purpose of the proposed amendment was to supply Congress with that power:
“With these provisions in the Constitution for the enforcement in every State of its requirements, is it surprising that the framers of the Constitution omitted to insert an express grant of power in Congress to enforce by penal enactment these great canons of the supreme law, securing to all the citizens in every State all the privileges and immunities of citizens, and to all the people all the sacred rights of person – those rights dear to freemen and formidable only to tyrants – of which the fathers of the Republic spoke, after God had given them the victory, in that memorable address in which they declared, ‘Let it be remembered that the rights for which America has contended were the rights of human nature?’ Is it surprising that essential as they held the full security to all citizens of all the privileges and immunities of citizens, and to all the people the sacred right of person, that having proclaimed them they left their lawful enforcement to each of the States, under the solemn obligation resting upon every State officer to regard, respect, and obey the constitutional injunction?
“What more could have been added to that instrument to secure the enforcement of these provisions of the bill of rights in every State, other than the additional grant of power which we ask this day? Nothing at all.”
The New York Times reported a summary of Bingham's February 28, 1866 speech and specifically noted Bingham's belief regarding the purpose of the proposed Amendment. "This was simply a proposition to arm the Congress of the United States ... with power to enforce the Bill of Rights as it stood in the Constitution." N.Y. Times, Mar. 1, 1866, at 5.
Later in 1866, while the Fourteenth Amendment was awaiting ratification by the States, Bingham had his speech published as a separate pamphlet. In the title, the pamphlet specifically described the proposed amendment as one “to Enforce the Bill of Rights.” (The full title is, John A. Bingham, One Country, One Constitution, and one People, Speech of Hon. John A. Bingham, of Ohio, in the House of Representatives, Feb. 28, 1866, in Support of the Proposed Amendment to Enforce the Bill of Rights (Washington, Printed at the Congressional globe [sic] office, 1866)).
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