John Bingham and Unwritten Rights
I want to draw your attention to a superb article by Kurt Lash that came out in January about the Privileges or Immunities Clause. The Article traces the evolution of John Bingham’s thinking during the drafting process that produced the Fourteenth Amendment and is something that any serious scholar of that period will have to address.
Two things struck me about Lash’s account. First, Bingham never referred to Justice Bushrod Washington’s discussion of fundamental rights in Corfield v. Coryell as a guidepost for interpreting the Fourteenth Amendment. Second, Bingham insisted that the Privileges or Immunities applied the first eight amendments to the Constitution to the states and nothing more.
There are some important conclusions that follow from these observations (which, by the way, are consistent with my research thus far). One is that the Court’s holding in Slaughterhouse was correct at least according to Bingham’s understanding of the text (i.e., common-law rights were not incorporated). Another is that Bingham appears to have been hostile to the concept of unwritten fundamental rights. One cannot say that he opposed all such rights, but his exclusion of the Ninth Amendment from the Fourteenth is telling, as was his refusal to cite Corfield when others did. He did say at one point that the Due Process Clause should be read against the backdrop of existing case law, which did recognize the concept of substantive due process, but that looks like the only time he said anything that could be construed as endorsing that doctrine. No wonder Justice Hugo Black liked Bingham so much. They shared a rather similar view of how the Fourteenth Amendment should be interpreted.