John Bingham and Originalism

I’ve mentioned before that, in my ongoing research on a biography of John Bingham, I can find no evidence that he either offered or was ever asked for his views about the original understanding of the Fourteenth Amendment after he left Congress in 1873.  (He died in 1900).  Now this could be because the sources are incomplete.  In other words, maybe he did say something or was asked but those records are lost.

There is another possibility though.  Maybe people were just not interested in originalism as an interpretive methodology back then.  Thus, there was no reason to care about what he thought about his work.  I’m not sure, but it is curious that Bingham’s obituaries didn’t even mention his role in drafting Section One of the Amendment.  He’s more important to us as a constitutional thinker than he was to his contemporaries.

UPDATE:  Another possible explanation is that Bingham’s reputation was damaged by his involvement in the Credit Mobilier scandal, thus perhaps he was personal non grata.

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3 Responses

  1. Chris says:

    Bingham’s status as the drafter was important during the 1871 debates. See, e.g., Globe, 42nd Cong. 1st Sess. app. 256 (1871) (Sen. Henry Wilson): “Sir, I see, or think I see, ample powers in the fourteenth amendment upon which to base the legislation proposed by the pending bill. I concur entirely in the construction put upon that provision of the fourteenth amendment by Mr. Bingham, of Ohio, by whom it was drawn.” For a bit more, see http://ssrn.com/abstract=1100121 at 225.

    On 14A-era originalism, see, e.g., Matthew Carpenter’s report on women’s voting rights for the Senate Judiciary Committee, S. Rep. no. 42-21, at 2-3 (January 25, 1872): “A construction which would give the phrase ‘a republican form of government’ a meaning differing from the sense in which it was understood and employed by the people when they adopted the Constitution, would be as unconstitutional a departure from the plain and express language of the Constitution in any other particular. This is the rule of interpretation adopted by all commentators on the Constitution, and in all judicial expositions of that instrument; and your committee are satisfied of the entire soundness of this principle. A change in the popular use of any word employed in the Constitution cannot retroact upon the Constitution, either to enlarge or limit its provisions.” For a bit more, see http://ssrn.com/abstract=1658010 at 84 n.281.

  2. Chris says:

    I agree it’s a bit odd that Bingham wasn’t given more attention after he left Congress. He was given special attention during the debates over the Civil Rights Act of 1871. See, e.g., Cong. Globe, 42nd Cong. 1st Sess. app. 311 (1871) (Sen. Henry Wilson: “I concur entirely in the construction put upon that provision of the fourteenth amendment by Mr. Bingham, of Ohio, by whom it was drawn.”); for a bit more, see http://ssrn.com/abstract=1227162 at 225. For originalism among 14A framers, see, e.g., S. Rep. no. 42-21, at 2-3 (January 25, 1872) (Sen. Matthew Carpenter for the Senate Judiciary Committee, rejecting women’s voting rights: “A construction which would give the phrase ‘a republican form of government’ a meaning differing from the sense in which it was understood and employed by the people when they adopted the Constitution, would be as unconstitutional a departure from the plain and express language of the Constitution in any other particular. This is the rule of interpretation adopted by all commentators on the Constitution, and in all judicial expositions of that instrument; and your committee are satisfied of the entire soundness of this principle. A change in the popular use of any word employed in the Constitution cannot retroact upon the Constitution, either to enlarge or limit its provisions.”); for more, see http://ssrn.com/abstract=1658010 at 84 n.281.

  3. Shag from Brookline says:

    I see from a post above that Kurt Lash’s Part II of his Fourteenth Amendment project appears in the current issue of Georgetown Law Review. Drafts of Lash’s Parts I and II had been available in 2010 via SSRN well prior to the decision in McDonald v. Chicago. I had urged him at another blog to get his promised Part III of his project out there so that the Court and clerks might have the benefit of his continuing research BEFORE the decision came down. I don’t know if Prof. Lash has continued with Part III of his project, perhaps reconsidering in light of McDonald’s not incorporating the Second Amendment under the Privileges or Immunities Clause of the 14th. I hope Prof. Lash will note this comment and resp ond or that some else will contact him. The drafts of both Parts I and II were excellent and I was looking forward to Part III.